Private Nuisance Flashcards
What is private nuisance?
As est. in Fearn v Tate Gallery (2023):
A use of land which substantially interested with ordinary use and enjoyment of neighbouring land, judged by standards of an ordinary person
How must C prove liability
Under balance of probabilities;
1. They have right to bring a claim and person they are suing is capable of being D
2. There is substantial interference by physical damage or loss of amenity
3. Intereferece is sufficiently serious in all circumstances to be unlawful
How is right to bring a claim decided?
Claimant must have a legal interest in the land and be affected by interference
E.g. Hunter v Canary Wharf (1997)
Defending must have created nuisance or allowed it to continue
E.g. Tetley v Chitty (1996)
How is intereference established
Must either be physical damage like damage to plants or crops by fumes
E.g. St Helen’s Smelting v Tipping (1865)
Or loss of amenity that affects the ordinary comfort of human existence
E.g. Bine V Seal (1975) damages awarded from smells of pig farm
How is unlawful interference established?
If D is making no more than a common and ordinary use of land, and it was conventionally done with consideration of interests of neighbours.
How is decided whether D is making more than a common and ordinary use of land?
Depends on nature of area,
E.g. Laws v Florinplace (1981) sex shop deemed as making substantial interference in residential areas
Special sensitivity of C not relevant
E.g. Network Rail v Morris (2004)
New railway track interfered with recording equipment in C’s studio
How is it decided whether it is conveniently done?
Length, degree and time of day is considered
E.g. Barr v Biffs Waste (2012)
Stirrage of organic material in landfill site cause strong smells on many occasions for years.
Malice can also affect it:
Christie V Davey (1893) banged against walls after C gave musical instruments
What are defences?
- Prescription
- Statutory authority
How is prescription used as defence
If D carried out nuisance for 20 years and C is aware but hasn’t complained, they have a “prescriptive right” (starts out from when C is affected)
E.g. Sturges v Bridgeman (1879)
C was doctor who treated patients in house, built consulting room in garden, D had confectionary factory creating noise, D said 20 years, only affected C when room built
How is statutory authority a defence?
If public body acting under statutory authority does nuisance, action fails
E.g. Allen v Gulf Oul (1981) C could not sue about noise and fumes from oil refinery as created under AOP
However planning permission does not exclude nuisance (Coventry v Lawrence (2014)
What are remedies?
- Injunction, prohibits/controls activity e.g. Kenneway v Thompson (1981) limit races in powerboat club
- Damages, damage to property, reduction in value of land/business or punitive if court disapproves of D behaviour
- Abatement, gives C right to take reasonable steps to deal with nuisance themselves
