Private Nuisance

Question 0

What is private nuisance?

Answer 0

An activity which unduly interferes with the claimant’s use or enjoyment of land.
Khorasandijan v. Bush

Question 1

What does nuisance protect?

Answer 1

Proprietary Interests

Question 2

Actions in private nuisance require proof of what two elements?

Answer 2

1. Proof of an interference causing damage to the claimant’s land or to the use and enjoyment of that land.
2. Proof of an ‘unreasonable use’ by the defendant of his/her land.

Question 3

What else needs to be considered before filing a claim in private nuisance?

Answer 3

1. Whether the claimant has the capacity to sue?
2. Whether the defendant can be liable in private nuisance?
3. Whether the defendant has a defense?
4. Are any remedies available to the claimant?

Question 4

What are the four types of relevant interference that trigger nuisance?

Answer 4

1. Physical damage to property
2. Amenity nuisance
3. Interference with servitude
4. Encroachment nuisances

Question 5

What is the case of Helen’s Smelting Co v Tipping?

Answer 5

The claimant owned a manor house with 1300 acres of land which was situated a short distance from the defendant’s copper smelting business. He brought a nuisance action against the defendant in respect of damage caused by the smelting works to their crops, trees and foliage. There were several industrial businesses in the locality including and alkali works. The defendant argued that the use of property was reasonable given the locality and the smelting works existed before the claimant purchased the property.

Held

Where there is physical damage to property, the locality principle has no relevance. It is no defence that the claimant came to the nuisance.

Question 6

What is the case of Hunter & Others v Canary Wharf?

Answer 6

690 claims were made against Canary Wharf ltd. The claimants lived in the Isle of Dogs and complained that the erection of the Canary Wharf Tower interfered with their television reception. In addition, a second action against London Docklands Development Corporation involved 513 claims for damages in respect of excessive amounts of dust created during the construction of the tower. Some of the claimants were owners or tenants of properties, but many of the claimants had no proprietary interest in lane at all. Some were children living with parents, some were relations or lodgers with use of a room and some were spouses of the tenant or owner of the property. The two issues the House of Lords were required to consider were:

1. Whether interference with television reception was capable of giving rise to an actionable nuisance
2. Whether an interest in property was required to bring an action in
   Held:
3. There is no right of action in nuisance for interference with the television reception.
4. An interest in property is required to bring an action in nuisance. Khorasanjian v Bush overruled in so far as it holds that a mere licensee can sue in private nuisance.

Question 7

What five things are necessary to show interference causing damage to the claimant’s land or to the use and enjoyment of that land?

Answer 7

1. There must be proof of some damage.
2. There must be an interference which affects the claimant’s use or enjoyment of the land.
3. There interference must be judged by objective standards.
4. The interference must emanate from the defendant’s land.
5. The interference must be reasonably foreseeable.

Question 8

What is the case of Halsey v Esso Petroleum?

Answer 8

Facts

• Oil depot near P
• P complained of noise and pollution (smell + acid drops and oily smuts)

Issue
- Whether a nuisance is created that justifies intervention by the courts

Decision
- D held to be liable for smell and not noise

Reasons

• Veale J realised there needed to be a balance between P’s enjoyment of their land and D’s loss of enjoyment should an injunction be granted
• Injury to health is not a necessary ingredient of the nuisance cause of action
• Temporary noise does not count as nuisance
• The ordinary reasonable person, rather than the P themselves, are the standard by which nuisance is judged
• In this case, the standard is satisfied for smell.

Question 9

What is the case of Cambridge Water v Eastern Counties Leather?

Answer 9

The defendant owned a leather tanning business. Spillages of small quantities of solvents occurred over a long period of time which seeped through the floor of the building into the soil below. These solvents made their way to the borehole owned by the Claimant water company. The borehole was used for supplying water to local residents. The water was contaminated at a level beyond that which was considered safe and Cambridge Water had to cease using the borehole. Cambridge Water brought actions based on negligence, nuisance and the rule in Rylands v Fletcher.
Held:
Eastern Counties Leather were not liable as the damage was too remote. It was not reasonably foreseeable that the spillages would result in the closing of the borehole. The foreseeability of the type of damage is a pre-requisite of liability in actions of nuisance and claims based on the rule in Rylands v Fletcher in the same way as it applies to claims based in negligence. The Wagon Mound No 1 case applies to determine remoteness of damage.

Question 10

What are the requirements to prove the defendant is unreasonably using his land?

Answer 10

1. Balancing exercise to determine unreasonable user (balance the right of defendant to use and enjoy land with the right of claimant not to suffer interference with the use and enjoyment of land)
A. Locality
B. Abnormal Sensitivity
C. Duration of interference 
D. Public Benefit 
E. Malice.

Question 11

What is the case of Bamford v Turnley?

Answer 11

Turnley burnt bricks in a kiln which sent noxious fumes to the surrounding country, affecting various neighbours. It made them and their servants ill. Bamford sued to prevent the nuisance. At trial it was held that the brick smoke was reasonable because the defendant had only been using the kiln in order to build a home.
The court held that even if an action is being performed for the public benefit it may still constitute a nuisance. The public gain and the loss of the individual must be balanced – there will always be winners and losers in society; the losers in society should be compensated for their loss. If the defendant is not able to compensate the plaintiff through the profit that they make undergoing the activity, then it must not be in the public interest that the activity goes on.

Question 12

What is the case of Sturges v Bridgeman?

Answer 12

The defendant ran a confectionary shop which operated a noisy pestle and mortar. It had done so for over 20 years but had no neighbouring property so there were no complaints as to its use. The claimant then built a consulting room for his practice as a physician adjacent to the defendant’s noisy shop. The claimant brought an action in nuisance to obtain an injunction to prevent the continuance of the noise. The defendant, relying on the Prescription Act, argued that he had obtained the right to be noisy by operating the noisy pestle for over twenty years.
Held:
The use of land prior to the construction of the consulting room was not preventable or actionable and therefore it was not capable of founding a prescription right.

Question 13

What is the case of Baxter v Camden?

Answer 13

Claims flatmates was extremely noisy. No actionable nuisance because there was no unreasonable usage of the land. To be expected in areas where there are inexpensive flats.

Question 14

What is the case of Robinson v Kilvert?

Answer 14

The defendant carried on a business of making paper boxes. This required a warm dry atmosphere. The defendant operated from the basement of their premises and let out the ground floor to the claimant. The claimant used the premises for storage of brown paper. The heat generated from the defendant’s operations damaged the brown paper belonging to the claimant.
Held:
The defendant was not liable. The damage was due to the special sensitivity of the paper.

Question 15

What is the case of McKinnon Industries v Walker

Answer 15

The defendant manufactured steel and iron products 600 feet from the claimant’s property. The claimant had a dwelling house and also a commercial florists and nursery. As part of his business he specialised in growing orchids which are known for their particular sensitivity. The claimant brought an action in relation to noxious fumes and smuts which had deposited over his shrubs, trees, hedges and flowers causing them to die.
Held:
The defendant’s actions constituted an unlawful nuisance and therefore the claimant was entitled to recover damages in respect of the orchids despite the sensitive nature of the flowers.

Question 16

What is the case of Network Rail v Morris?

Answer 16

The claimant ran a recording studio in Croydon. The studio was situated 80 metres from the London to Brighton main line railway track. In 1994, new track circuits were installed which operated the signalling system on the rail track. This circuit system generated an electro-magnetic field which interfered with the use of the electric guitars on the claimant’s premises. This resulted in him losing several clients. The claimant brought an action in nuisance for the interference.
Held:
The defendant was not liable. The use of amplified electric guitars fell into the category of extraordinary sensitive equipment. Furthermore the interference was not foreseeable.

Question 17

What is the case of DeKeyser’s Royal Hotel Ltd v Spicer Bros?

Answer 17

An injunction was granted to prevent building work taking place at night despite the fact the work was only temporary in nature. The interference was considered unreasonable since it interfered with the claimant’s sleep.

Question 18

What is the case of Miller v Jackson?

Answer 18

The defendants were members of the Lintz Cricket Club. Cricket had been played at Lintz cricket ground for over 70 years. The land was owned by the National Coal Board (NCB) who also owned some fields surrounding the grounds. Four years prior to the action, the NCB sold one of the fields and a development of Wimpey homes was put up in close proximity to the cricket ground. Mrs Miller purchased one of the houses and brought an action against the cricket club seeking an injunction to prevent them playing cricket at the ground. Initially quite a number of balls were hit over the houses. However, in 1976 the cricket club erected a higher fence and the number of balls hit out was reduced to nine over a two year period. There had been no personal injuries resulting from the balls but some property damage had been caused which the cricket club had paid for. Mrs Miller complained that she could not use her garden during matches and would often stay out of the house altogether.
Held:
The defendants were liable in both negligence and nuisance (Lord Denning dissenting)
However, Cumming Bruce LJ refused the injunction on the grounds that it would be inequitable to grant an injunction given that the cricket ground had been used for so long and would be a loss to the community and Mrs Miller received the benefit of being adjacent to an open space.
Lord Lane would have granted the injunction stating that the decision in Sturges v Bridgeman involves the assumption that it is no defence for the defendant to show that they came to the nuisance.

Question 19

What is the cast of Kennaway v Thompson?

Answer 19

The defendant was a member and acting on behalf of the Cotswold Motor Boat Racing Club which carried out motor boat racing. Water sports including motor boat racing had been carried out at the Club’s waters since the early 1960s. 1972 the claimant moved into a house which she had had built on land she inherited from her father. The house was situated 390 yards from the start line for the races. The frequency of the races increased over time and the club’s waters were often used as a venue for both national and international races. The claimant brought an action against the club in nuisance for the noise and disturbance experienced. She was successful in the claim and was awarded damages, however, the judge refused to grant an injunction following Miller v Jackson. The claimant appealed.

Held:

Appeal allowed and an injunction was granted. Lord Cairn’s Act allowing discretion to award damages in lieu of an injunction should only be used in exceptional circumstances Shelfer v City of London Electric Lighting approved, Miller v Jackson doubted.

Question 20

What is the case of Christie v Davey?

Answer 20

The claimant was a music teacher. She gave private lessons at her home and her family also enjoyed playing music. She lived in a semi-detached house which adjoined the defendant’s property. The defendant had complained of the noise on many occasions to no avail. He took to banging on the walls and beating trays and shouting in retaliation.

Held:

The defendant’s actions were motivated by malice and therefore did constitute a nuisance. An injunction was granted to restrain his actions.

Question 21

Who has the capacity to bring an action in private nuisance?

Answer 21

Only those who have an interest in the land can bring a claim in private nuisance.

Question 22

When can you sue someone who is not the creator of the nuisance?

Answer 22

When they:
1. Authorize
2. Adopt or 
3. Continue
The nuisance

Question 23

What is the case of Tetley v Chitty?

Answer 23

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 and necessary incident to go-kart racing which was the purpose for which the permission to use the land was granted.

Question 24

What is the case of Sedleigh-Denfield v O’Callaghan?

Answer 24

The council undertook some work on the defendant’s land at the request of a neighbouring landowner. They had placed a culvert in a ditch to allow the water to drain away, however, they had negligently placed a grate in the wrong place which rendered the grate useless and the culvert became prone to blockages. The defendant’s workers had cleaned the culvert periodically over a three year period to prevent blockages. However, a heavy rain storm caused a blockage and the ditch became flooded. The flood spread to neighbouring property owned by the claimant and caused substantial damage. The claimant brought an action in nuisance for the damage caused. The defendant argued that he had neither consented to nor had knowledge of the existence of the culvert.

Held:

The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance.

Question 25

What remedies are available to the claimant?

Answer 25

Damages
Injunction
Abatement