Private nuisance Flashcards
What is private nuisance ?
Claims of people living close to one another
Involve competing claims
People want to be able to do what they like in their own land
This can become an issue when it stops neighbours enjoying their land
When the use of land is unreasonable
Not every intentional interference is a nuisance , only when it is unreasonable
The rules of private nuisance
An unlawful indirect interference with a persons use or enjoyment of land coming from neighbouring land
What are the two main types of nuisance ?
1 loss of amenity nuisance when caused by noise smell or smoke
2 material damage nuisance, when a dangerous state of affairs on the defendants land causes a significant physical damage to the claimants land such as tree roots causing subsidence
What is the parties to an action?
- Anyone affected by the nuisance can claim as these claims involve the competing rights of neighbours , trying to use the land as they wish
- The claimant must have an interest in the land
Owner or tenant - The person causing or allowing the nuisance to happen can be sued
- Where the occupier is not responsible for creating the nuisance , they may still be liable for adopting or allowing the nuisance failing to deal with the nuisance
Tetley v Chitty 1986
A council allowed a go kart club to use their land for a race track. Nearby residents brought an action in nuisance. The council were held liable for authorising the activities of the go kart club. The noise was an ordinary necessary incident to go kart racing which was the purpose for which the permission to use the land was granted. Legal principle the person causing or allowing the nuisance can be sued
Sedleigh Denfield v o Callaghan 1940
The defendants were an order of monks who occupied land where there was a ditch. The local authority , without the knowledge of the defendants , laid a pipe to take water away from the ditch . The pipe had a grate to stop leaves blocking it but the grate was situated in the wrong place and became blocked. As a result , The neighbouring land became flooded. By this time the defendants knew of the pipe . The defendants liable in nuisance as the House of Lords decided that an occupier who knows of a danger and allows it to continue is liable, even if he or she has not created the danger themselves.
Legal principle or adopting a nuisance can lead to liability for any damaged caused by it
Leakey v national trust 1980
The defendants owned land on which there was a large natural mound on a hillside. There were aware that it could slip , and following a hot summer, it did slip damaging the claimants cottage. The defendants were held liable as they knew that a slippage might happen, and they failed to prevent it.
Legal principle the defendant can still be liable for nuisance caused by natural causes
Who has an interest in the land ?
The defendant causing the nuisance does not have an interest in the land from which the nuisance is coming
Complaining neighbour has to have an interest in the land affected v neighbour who receives complaint does not have an interest in the land can be liable if he or she allowed the nuisance to continue. This was confirmed in Hunter v Canary Wharf 1997 and means that people who may be affected, but don’t have an interest in the land cannot claim. However, this has been dealt with under article 8 of the ECHR .
The elements of private nuisance
Unlawful
The claimant must prove that the defendants activity amounts to unlawful use of the land
This doesn’t have to be illegal just unreasonable
The court will try to balance the conflicting interests of both parties with a certain amount of give and take.
There will be a fault in the defendant not having regard for their neighbours.
However, fault does not have to be proved
The elements of private nuisance
What are the two indirect interference
Loss of amenity
Fumes drifting over from the neighbours land
Smell from farm animals
Noise e.g children’s playgrounds gunfire speedway
Material damage
Vibration from an industrial machine
Hot air rising into other premises
Oily smuts from chimneys
Fire
Cricket balls being hit into a garden
What can’t you claim for ?
Can’t claim for loss of view, loss of light or loss of televisions signal or sound
Hunter v Canary Wharf 1997
The claimants were a number of people who were living in the docklands area of east London when the Canary Wharf offic tower was being built. They claimed that the building affected their television reception. The House of Lords decided that the loss of this kind of recreational facility was not sufficient interference to give rise to an action in nuisance. This was partly because other forms of reception such as cable and satellite were available .
The court also confirmed that the rule that only those interest in the land and not members of families, had the right to bring an action. Legal principle
Only people with an interest in that land can bring a case two loss of amenity such as telefilm. Signal is not a nuisance .
What are the other types of nuisance?
However, courts are prepared to protect feelings of emotional distress
Thompson - Schwab v costaki 1956 the court of appeal decided that running a brothel in a respectable area in London is amounted to a nuisance.
Laws v Florinplace Ltd 1981 - an injunction 2as awarded where a shop in an area of shops , restaurants and some houses was converted into a sex shop.
what are the factors of reasonableness?
- Locality - the character of the land needs to be considered. Does the nuisance affect the character? e.g. building a factory in a residential area
- the duration of the interference - was the nuisance continous and carried out at an unreasonable hour? e.g regular loud music late at night
- The sensitivity of the claimant- if the claimant is particulary sensitive , it may not be a nuisance
- Malice - a deliberately harmful act will be classed as a nuisance
- social benefit - if the defendant is providing a benefit to the community their action may be considered reasonable
Miller and Jackson 1977
The claimants use of their garden was disrupted by cricket balls being hit into it from the adjoining recreation ground. The cricket club tried to compromise with the claimants by erecting high fencing and instructing batsmen to hit the ball to the ground. However, the claimants continued with their action to stop cricket being played. The court weighed up the use of the ground against the claimant’s use of the garden. they decided that the community use of the ground outweighed the private use and refused the injunction.
social benefit
Christie v Davey 1893
The claimant was a music teacher and held musical parties and lessons in his house. The defendant became annoyed by the noise and responded by banging on the walls with his hands and with trays, blowing whistles and shouting . An injunction was granted against him due to his deliberate and malicious behaviour.
malice
Robinson v kilvert 1889
The claimant stored brown paper on the ground floor of a building. The defendant stored paper boxes in the basement. He needed the conditions to be dry and hot. The heat caused the paper to dry out and the claimant sued for its loss of value. The court decided that the brown paper was particularly delicate and the heat from the basement would not have dried out normal paper . The court did not grant an injunction or damages,
sensitivity of the claimant
De keyser’s Royal Hotel v Spicer bros 1914
An injunction was granted to prevent building work taking place at night , despite the fact that the work was temporary in nature. The work was considered unreasonable as it interfered with the claimants sleep .
duration
Crown River cruises Ltd kimbolton Fireworks Ltd 1996
A river barge was set alight by flammable debris. resulting from a firework display lasting only 20 minutes. It was said that the short term display amounted to an actionable nuisance.
duration
Hollywood silver fox farm v Emmet 1936
The claimant bred mink on his farm. The defendant had a disagreement with the claimant and told his son too shoot his guns near the property to frighten the animals so they would not breed. This was a deliberate and unreasonable act and amounted to nuisance.
malice
Network rail infrastructure v Morris 2004
The claimant ran a recording studio near the main London Brighton railway line , the railway company installed a new track circuits which interfered with the amplification of electric guitars causing the claimant to lose business. The court of appeal considered that the use of amplified electric guitars was abnormally sensitive equipment and, as the interference was not foreseeable the defendants were not liable.
sensitive equipment
Defences- Prescription
- unique to private nuisance
- if the action has been carrying on for at least 20 years and there has been no complaint between the parties before now
- The defendant may be said to have a prescriptive right to continue.
- This was shown in Sturges v Bridgman 1879
Sturges v Bridgman 1879
The claimant a doctor had lived and worked next to the defendant’s confectionary factory. The claimant then built a consulting room in his garden on the boundary to the factory. He complained of a nuisance due to vibrations from the defendant’s machinery. The defendant argued that he had a prescriptive right to continue as he had been using the factory without complaint for a number of years. The court decided that the defence of prescription failed as the nuisance began when the consulting room was built.
legal principle the defence only applies to an activity that was an actional nuisance for at least 20 years.
Defences - moving to the nuisance
- The defendant may argue that the claimant is only suffering the nuisance as they moved closer to the alleged problem Sturges v Bridgman or moved to the area miller v Jackson and that there was no issue previously
- This argument will not give a defence to the defendant
- statutory authority
- many of the activities that amount to a nuisance can be regulated or licensed by environmental or other laws
- statutory authority is most likely to be an effective defence
Allen v Gulf oil refining 1981
Residents in the area where the defendants were operating an oil refinery brought an action in private and public nuisance. The defendants had been given statutory authority to acquire the site and build a refinery, but not express permission to operate it. The house of lords said that it must have been parliaments intention, when it gave permission for the defendants to operate the refinery. As the nuisance was an inevitable consequence of operating the refinery, the defence of statutory authority succeed.
if a statute provides the only possible remedy , an action in nuisance may not be possible as an alternative.
Marcic v Thames Water PLC 2003
Through the failures of the defendant, the claimants home became flooded with sewage on many occasions. The water industry act 1991, which governed the conduct of the defendants, provided appropriate remedies and procedures and excluded a private action in nuisance. The house of lords decided that , as there were clear statutory procedures there could be no nuisance action. If such action was allowed it would conflict with the intentions of parliament.
legal principle statutory authority can deal with nuisance claims
Gillingham borough council v Medway ( Chatham) Dock co 1993
Planning permission was granted to use part of the dockyard as a commercial port. Access was only available by residential roads, which caused residents noise disturbance from heavy lorries. The court decided that as the character of the neighbourhood had been changed by planning permission, what could have previously been a nuisance could now be considered reasonable. It was held not to be an actionable nuisance because of the grant of planning permission changing the character of the neighbourhood.
legal principle
planning permission can act as a justification for nuisance
- actionable - do something about it
Wheeler v Saunders 1996
A pig farmer was granted planning permission to expand by building two more pig houses each containing 400 pigs. one pig house was only 11 metres from the cottage of a neighbour who took action in nuisance due to the strong smells he experienced. The court of appeal confirmed that the grant of the planning permission could only be a defence if its effect was to change the character of the neighbourhood so that the nuisance was not unreasonable. This had not been the case here and the planning permission was not a defence.
legal principle planning permission can only be a defence if it changes the character of the area
Watson v croft Promo sport 2009
Planning permission was granted in 1963 to use a former aerodrome as a motor racing track and it was then used as a track from 16 years. Racing then ceased but in 1995 new owners reopened the track and it became a very popular circuit . The new owners reapplied for planning permission for 210 days per year and following a public inquiry this was granted. The claimant, who lived about 300 metres from the circuit, brought an action in private nuisance claiming noise disturbance and injunction and damages. The defendant argued that the planning permission changed the character of the area and so the circuit was reasonable. However, the court of appeal granted an injunction restraining the defendant from using the racetrack for more than 40 days per year. They considered that the area remained essentially rural and that there was an actionable nuisance.
legal principle confirmed the previous principle that planning permission can only be a defence if it changes the character of the area.
Coventry v Lawrence 2014
The claimant bought a house 2006, 864 meters from the defendants motor sport stadium. planning permission had originally been granted in 1975 for speedway use and subsequently for other motor sport use including stock cars, bangers and motorcross. The claimant brough an action based on noise nuisance requiring an injunction limiting the use of the track.
The supreme court confirmed the existence of noise nuisance and granted an injunction limiting the use of the track. They decided that the rule in sturges v Bridgman 1879 also considering the character of the neighbourhood - still applies. Further, that provided the claimant uses his or her property for the same purpose as their predecessor , the defendant cannot use the defence of coming to the nuisance, but :
- where the claimant builds on their property or changes the use after the defendant has started their activity complained of, the defence of coming to the nuisance may fail and
- Damages may be considered as a remedy more often in nuisance cases, especially where planning permission has been awarded to the defendant for the use of their land , or where public interest is involved such as employees losing their jobs if an injunction is awared.
legal principle this case shows a more modern use of the previous cases and principle
what are the Remedies?
- Most common remedies was an injunction - this could be positive, e.g. to install a filter to remove a smell.
- Shelfer v City of London Electric lighting co 1895 set out the Shelfer test that damages should be awarded over injunctions when the inquiry to the claimant’s rights were small.
( don’t need to know Shelfer test ) - Coventry v Lawrence changed this view - the supreme courts guidence:
- An injunction could be a default order in a nuisance claim, but
- it is open to the defendant to argue that an award of damages would be a suitable alternative
- The Shelfer test should not be applied rigidly, and
- An injunction will not be automatically be granted even if the shelfer test is satisfied
- A further remedy may be ‘abatement’ - entering the defendants property to stop a nuisance - going into the garden to chop a tree down .
Nuisance and fault
- Nuisance is not a fault - based tort
- The claimant does not have show why the neighbour has interfered with their enjoyment of the land
- However, the claimant has to show the defendant has been unreasonable , which shows some elements of fault.
- The presence of malice also shows fault
- causing unreasonable noise shows fault
- The courts will encourage neighbours to use ADR as a method of resolution, to improve relationships and avoid confrontation
ADR alternative dispute resolution
Bateman
entering property to stop nuisance
