Private Nuisance Flashcards
Who can sue?
Hunter v Canary Wharf
The claimant must have a proprietary interest and exclusive possession
Ie an owner-occupier
Children do not have rights
Guests do not have rights
Definition of private nuisance?
An unlawful interference with a persons use and enjoyment of land
Read v Lyons
Can a tenant sue?
Yes.
What about a landlord who has parted with possession to a tenant?
They can sue in private nuisance if permanent damage is being done to his property. I.e. Vibrations causing structural damage
What about a wife?
No - they can’t sure. Malone v Laskey
What about article 8 human rights act?
Dobson v Thomas water utilities found that further compensation due to interference in Article 8 was not necessary.
However - marcic v Thames water utilities suggested it could in the future. Leaves opinion open.
Who can be sued?
Usually the occupier.
But can be the creator of the nuisance if land now occupied by somebody else
What special examples of occupier’s liability in private nuisance are relevant here?
Employee - vicarious liability for the employer
Independent contractor - provided the work carried out is a special danger of the nuisance being created
Cases for special occupier liability for private nuisance?
Natural events - Leakey v National Trust
Visitors - liplatt v South Gloucestershire
Predecessors in name - St Anne’s Well Brewery v Roberts Title
Can a landlord still be liable?
Ni general rule is the tenant is liable
Exceptions - when landlord liable?
Where landlord has expressly or impliedly authorised the nuisance.
Tetley v Chitty
Nuisance begun before letting and ought to have known about it
Landlord had promised to make repairs but didnt
Payne v Rogers
But if the landlord is liable, does that mean the tenant gets off?
No - both still liable
What is an interference?
3 types Hunter v Canary Wharf
- Encroachment
- Direct physical injury to land
- Loss of amenity
What are the two cases regarding loss of amenity that will give your answer so flavour and colour…?
Loss of amenity does not cover ‘dainty modes of living’ - (Walter v selfie)
The loss of a view is not actionable - Alfred’s case
Hunter v canary wharf -
TV signal is not actionable
What does unlawful mean?
‘Substantial and unreasonable’
Sedleigh-Denfield v O’callaghan
Factors the court take into account…
Duration/frequency Excessive ness of conduct Character of neighbourhood Abnormal sensitivity Malice Public duty
Duration/frequency
The longer the interference has lasted the more likely it is that the court will consider the interference unreasonable.
Isolated occurances can be actionable if it emanates from some continuing state of affairs. Spicer v smee
Excessiveness of conduct
Matania v National Park
How far removed from normal behaviour is it? — OBJECTIVE TEST
Interference to land is nearly always excessive!
How far does it affect the claimant?
SUBJECTIVE TEST
Character of neighbourhood
Sturges v Bridgeman ‘what would be a nuisance in Belgravia Square would not necessarily be so in Bemondsey’
Halsey v Esso -
Character of neighbour good ONLY taken into account in relation to loss of amenity. Not interference of damage or
Encroachment
Abnormal sensitivity
Extension of the egg-shell skull rule.
A claimant must prove that the interference in question would have affected a normal person. Robinson v Kilbert
If they can prove this, they can then recover for all loss, even with abnormal sensitivity.
Mcinnon Industries v Walker
Malice
If a claimant can show malice - this usually tips the case in their favour - Hollywood silver fox farm v Emmett
Public duty
Rarely a relevant factor! Although may be useful when considering an injunction
What damage is recoverable?
Nuisance is not a tort which is actionable per se, so the claimant must prove that he has suffered damage.
Hunter v canary wharf says:
Can recover for any physical damage, interference with quiet enjoyment of land, and any consequential economic loss, which has flowed from damage to property and personal discomfort (andreae v selfridge) Lord Hoffmab!
Why is not recoverable in private nuisance?
Personal injury
Personal belongs - although Halsey v Esso suggests some remedies for damage to belongings flowing straight from nuisance may be possible.
Remoteness and causation
Same as negligence
Cambridge waters
Defence: prescription
Sturges v Bridgeman
This defence arises if D can show he has been continuing the nuisance for 20 years against the claimant. But must be for 20 years against this particular claimant -ie the claimant must have suffered for 20 years
Defence: statutory authority
Allen v Golf Oil
Sometimes a statute will permit a defendant to commit a nuisance if they can prove that their nuisance was an inevitable consequence of the statutory act
Defence: contributory negligence
Same principles apply
Defence: consent
Has the claimant clearly accepted the interference?
Defence: act of god
Wringe v Cohen
When interference on the defendants land results from a secret unobservable process of nature.
Ineffective defence - claimant came to the nuisance
Miller v Jackson
It’s no defence just because somebody buys a house near a noisy factory.
Ineffective defence - public interest
Not a defence though may consider when granting an injunction. Miller v Jackson
Kennaway
Ineffective defence: contributory actions of others
It’s no defence that the nuisance involves separate individual actions
Ineffective defence: planning permission
Only parliament can take away price rights - therefore planning permission which is granted by a LA does not legitimise a nuisance.
Wheeler v Saunders
But - grant of planning permission does change the character of the the neighbourhood. Planning permission to turn X into X makes the character of the neighbourhood like x
GILLINGHAN
Damages - whats the deal?
Awarded for any loss suffered before the trial
For physical damage to c’s land - damages will reflect the cost of repairing the damages or if this is not possible the loss in value of the land
How do they award damages for personal discomfort?
Hunter v canary wharf
Hoffman suggested that personal discomfort should be valued by looking at the loss of amenity value of the land in question
Ie the land with the nuisance being worth less than the land without the nuisance.
Injunctions! Equitable and discretionary remedy.
Injunctions will not be awarded where damages is adequate compensation or a claimant can seek an injunction but ultimately a decision for the court.
Prohibitory
Stops D acting in some way. Most common
What is a mandatory injunction?
It orders a defendant to take positive action
Quia timet injunction? What is that?
It’s an injunction in anticipation of a tort - and is quite rare
- claimant must be almost certain to incur damage without the injunction
- such damage is imminent
- D will not stop his conduct without an injunction
When injunctions are being considered….how do the courts take into account public benefit?
Miller v Jackson - injunction was refused because the public interest of playing cricket should prevail over private interests (Lord Denning made famous dissenting judgement - saying there should be no damages at all)
Kenaway v Thompson. Public benefit of the power boat racing was not sufficient to deprive claimant of an injunction
Damages in lieu of an injunction
Powers deprive from the Chancery Amendment Act 1858
C will get damages for all loss - both past and present
Whats the case and tests for damages in lieu of an injunction
Shelfer v City of London
1. Case is suitable for an injunction
2. If so, damages in lieu will be granted if the injury to c’s legal rights is small.
3. One that can be estimated and adequately compensated by money
4 and an injunction would be over oppressive
Whats abatement?
Involves The claimant removing the nuisance themselves.
Claimant must give notice - or they don’t have to enter their land or it’s an emergency. Cutting down over hanging branches would count lemon v Webb
They must be returned back to the neighbour mills v brooker
