private nuisance

Question 1

What is private nuisance and examples

Answer 1

Claims involving people close to another
Involve competing claims - individuals saying it’s my house so i can do what I want make as much noise as I want
People want to be able to do what they like on their own land
This can become an issue when it stops neighbours enjoying their land
When tge use of land is unrrwosnabke
Not every intentional interference is a nuisance only when it is unreasonable

Fireworks
Scafholding
Gutters drain
Littering

Question 2

Definition of private nuisance

Answer 2

An unlawful Indirect interference (if it is direct we use Ryan v fletcher)
With a persons use of enjoyment of land
coming from a neighbouring land

Question 3

Two main types of nuisances

Answer 3

1. Loss of amenity nuisance when caused by noise, smell or smoke
2. ,arterial damage nuisance, when a dangerous state of affairs on the defendants land causes significant physical damage to the claimants land, such as tree roots causing subsidence - tree routes causing subsided

Question 4

The parties to an action

Answer 4

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
-interest
the person causing or allowing the nuisance to happen can be sued - children causing noice - parents are to blame

Where the occupier is not responsible for creating the nuisance, they may still hevliable for adopting or allowing the nuisance - failing ti deal with the nuisance

Question 5

Tetley v chitty 1986

Answer 5

Council allowed a go-kart club to use their land for a race track.
The person allowing the person to cause harm can be sued

Question 6

Leakey v national trust

Answer 6

D can still be liable for nuisances to be caused by natural causes

Question 8

Who has an interest in the land - hunter v Canary Wharf 1997

Answer 8

D causing the nuisance does not have to have an interest in the land from which the nuisance is coming

Confirmed in hunter. Canary whatf 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.

Question 9

Key elements of private nuisance

Answer 9

1 unlawful
.the claimant must prove that the d 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 fault in the d not having regard for their neighbours
However fault does not. Have to br proved
2. Indirect interference loss of amenity
.fumes drifting over from neighbours land
.smell from farm animals
.noises e.g. children playground gunfire
Material damage

.vibrations from an industrial machine
.hot air rising into other premises-hats - heat rising in flat
. Oily smuts from chimneys
.fire
.cricket balks beubf hit into a garden

Question 10

Unlawful (element 1)

Answer 10

.the claimant must prove that the d 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 fault in the d not having regard for their neighbours
However fault does not. Have to br proved

Question 11

Indirect interference loss of enmity

Answer 11

.fumes drifting over from neighbours land
.smell from farm animals
.noises e.g. children playground gunfire

Question 12

Material damage

Answer 12

.vibrations from an industrial machine
.hot air rising into other premises-hats - heat rising in flat
. Oily smuts from chimneys
.fire
.cricket balks beubf hit into a garden

Question 13

Hunter v Canary Wharf Ltd

Answer 13

Held people who don’t have interest in the land cannot claim
Also confirms meeting the elements 1 and 2
1- only people who have N interest in the land can claim
2- loss of enmity such as tv signal is not a nuisance

Question 14

Other types of nuisances

Answer 14

Thompson-Schwab v Costaki 1956 - tge court of appeal decided that running a brothel in a resected area is another type of nuisance

Laws florinplacw Ltd 1981 - an injunction was awarded where a shop in an area of shops, restruants and some houses was converted into a sex shop

Question 15

Factors of reasonableness

Answer 15

Loacilty - the character of the land needs to be considered. Does the nuisance affect the character. E.g. the building of a factored jn a residential area
.the duration of the interference. Was the nuisance continuous abd carried out at an unreasonable hour. E.g, regular loud music late at night
.the sensitivity of the claimant. If the claimant is particularly sensitive it may not be. Nuisance
.malice- a deliberate harmful act will be classed as nuisance
.social benefit - if the d us providing a benefit to the community their actions. May be considered reasonable.

Question 16

Defences

Answer 16

Prescription
Moving to the nuisance

Question 17

Prescription

Answer 17

. Unique to private nuisance
.if the action has been carrying in fir at l art 20 years sgd refers has been no complaint between the parties before his
The d may be said to have a prescription right fi continue

Key case - sturgeon v Bridgeman 1879

Question 18

sturgeon v Bridgeman 1879

Answer 18

Claimant a doctor had lived abd worked next to the d 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 d machinery. D said he had a prescriptive right to continue as ge has been using the factory for years without complaints. D of prescription failed ad tge courts decided nuisance began when the consulting room was built not the factory.

Question 19

Moving to the nuisance

Answer 19

. The d may argue that the claimant is only suffering the nuisance as they have moved closer to the alleged problem or moved to the area miller v Jackson and there was no problem previouskt

.this arguement will not give a defence to the d - hard to use
- statutory authority- best deternce
.mant if the activities fear amount to a nuisance xab be regulated or license by environmental or other laws
.stztouroey authority is most likely to be an effective offence.

Question 20

Key cases fir moving to the nuisance

Answer 20

Allen v gulf oil refining 1981

Question 21

Allen v gulf oil refining 1981

Answer 21

Confirms the defence of moving to the nuisance

Question 22

Wheelar v Saunders 1996

Answer 22

Planning permissions can act as an justification for nuisance if it changes the character of the area
Confirmed on the case of Watson and Croft promo-sport 2009

Question 24

Remedies

Answer 24

Most common remedies was an injection - this could be positive e.g. to install a filter to remove a smell

Shelter v city of London electric lightning co 1895 after this a further remedy may be abatement - entering the d property to stop a nuisance

Question 25

Shelfer v city of London electric lightning co 1895

Answer 25

Sets out the selftee test that damages should be awarded over injunctions when the injury to the claimants right were small Coventry v Lawrence changed this view - the supreme courts guidance. - an injunction could be a default order in a nuisance claim, - it is ion to the d to argue rear ab award if danger would be a suitable alternative - the shekter gear should be applied rigidly and - an injunction will not be automatically be granted even if the shelfer test is satisfied

Question 26

Nuisance and fault

Answer 26

- nuisance is not a fault based tier The claimant does not have to show why the neighbour has interfered with their enjoyment of the land However, the claimant has to show the d has been unreasonable which shows some element of fault Causing unreasonable noise also shows fault - the courts will encourage neighbours to use ADR - alternative dispute resultion- as a method of resolution, ri improve relationships and avoid confrontation.