Private nuisance

Question 1

What’s the basis of a private nuisance claim?

Answer 1

The use of one’s land that causes an interference with the use or enjoyment of another’s land. Tort is not actionable per se, so the claimant must prove damage.

Question 2

Who can sue in private nuisance?

Answer 2

Key case: Malone v Laskey (1907): dislodged toilet: wife could not claim as no legal interest.
Confirmed: Hunter and Others v Canary Wharf Ltd [1997]: 700 applicants - Canary Wharf.
C must have a legal interest in the land AFFECTED, namely a possessionary or proprietary interest (e.g. freehold or leasehold). Mere permission to use or occupy land is insufficient.

Question 3

Who can be sued in private nuisance?

Answer 3

1. CREATOR of the nuisance; Thomas v NUM [1986] - can be sued even though they may not be in a position to end the nuisance
2. OCCUPIER of the land; Leakey v National Trust [1980] - large mound of earth that it had accumulated on its land, which then collapsed onto the claimant’s neighbouring land damaging two houses. Although aware of the hazard, the National Trust took no steps to prevent the harm from happening.
3. OWNER of the land.

Question 4

In which exceptional circumstances might occupiers be liable for nuisances created by others (third parties)?

Answer 4

Independent Contractors:
- Matania v National Provincial Bank [1936] - occupier liable for foreseeable excessive noise and dust caused by contractors. People are expected to put up with a certain amount of ‘give and take’ however the temporary interference (three months) had serious consequences for the claimant, a music teacher, who could not earn his living whilst the contractors altered the property.

Trespassers:
- Sedleigh-Denfield v O’Callaghan [1940]: water pipe put under Ds land by local authority - burst and floor - poorly maintained, liable.

Question 5

Can occupiers be liable for naturally occurring nuisances?

Answer 5

Sometimes - see:
Goldman v Hargrave [1967]: knew or ought to have known of a danger and failed to take reasonable steps to abate the nuisance. Lightning struck tree, caused fire. Put out once. Reignited - D should had physical/financial ability to spray water. Should have taken reasonable steps.
However; subject to means - not expected to bankrupt. See:
Holbeck Hall Hotel v Scarborough BC [2000]: council not liable for a land slip which caused the claimant’s land to collapse. Court will consider fair and reasonable, and resources.

Question 6

When will an owner/landlord be liable?

Answer 6

(1) created it; or
(2) authorised it, by actively and directly participating in it, or by leasing the property in circumstances where there was a very high degree of probability that leasing the land would result in that nuisance being created.

Question 7

Key case for owner liability?

Answer 7

Coventry v Lawrence [2014]:
Cs moved into bungalow 1km from Ds noisy motor sports stadium
Owner not liable: could only be liable for their tenant’s nuisance if they authorised it, by actively and directly participating in it, or by leasing the property in circumstances where there was a very high degree of probability that leasing the land would result in that nuisance being created.

Question 8

Once you have considered who can sue and who can be sued for private nuisance, what are the four elements to consider?

Answer 8

1. Indirect interference;
2. Recognised damage;
3. Continuous act; and
4. Unlawful interference.

Question 9

What is indirect interference? Example?

Answer 9

Indirect interference occurs where the nuisance starts on the defendant’s land but then causes damage to some aspect of the claimant’s use or enjoyment of their land.
Example: X piles a large compost heap on their land. It smells badly from neighbouring land.

Question 10

What does the loss need to be to be recoverable?

Answer 10

Reasonably foreseeable and damage that affects the claimant’s use or enjoyment of their land.

Question 11

What are the two types of damage recoverable? Case examples?

Answer 11

(a) physical damage to property; Lemmon v Webb [1895] ‘must be more than minimus (trivial) Mitchell v Darley Main Colliery [1886]
(b) sensible personal discomfort (SPD): Helen’s Smelting Co v William Tipping (1865) - smoke and fumes from copper smelting plant next door.
must be more than fanciful and materially interfere with ordinary human comfort (Walter v Selfe (1851)

Consequential economic loss is also recoverable in private nuisance (lost profits caused by the claimant’s inability to use their land to make those profits), but not pure economic loss (Hubbard v Pitt [1976])

Question 12

Is a one-off isolated event normally actionable in private nuisance?

Answer 12

The general rule is that the nuisance must be continuous. A one-off isolated event is not normally actionable in private nuisance. In such instances claims may be brought in negligence or, if it is possible, by means of an action in public nuisance or under the rule in Rylands v Fletcher.

Question 13

What are the exceptions to the rule that a one-off isolated event is not normally actionable in private nuisance?

Answer 13

1. A single incident caused by an underlying state of affairs; (British Celanese v AH Hunt Ltd [1969]) - metal foil strips blown from the defendant’s factory came into contact with an electricity sub-station - happened 3 years prior - court held that an isolated incident could create a nuisance, especially where the incident was not the first occurrence.
2. An activity which creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material. Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] - firework display was held (obiter) to be a private nuisance (the claim succeeded in negligence). The fire caused extensive property damage. The court suggested that where an activity creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material, such as water, gas or fire, then private nuisance is available, even if the state of affairs is brief in duration. (fact sensitive)

Question 14

Under 4. unlawful interference, will the court look at whether the defendant is at fault in any way?

Answer 14

No - the courts will look at whether the activity that is causing the nuisance amounts to an unreasonable use of land (Cambridge Water Company v Eastern Counties Leather [1994].
If the use of land is reasonable, the defendant will not be liable; but if the use is unreasonable, the defendant will be liable, even if they exercised reasonable care and skill to avoid it.

Question 15

7 factors in determining whether the defendant’s use of land is unreasonable?

Answer 15

1. Time and duration
2. Locality
3. Excessive behaviour
4. Abnormal Sensitivity
5. Lack of care
6. Malice
7. Public benefit

Question 16

1. Time and duration concept/case?

Answer 16

If the interference is frequent or for long periods of time, this may be deemed unreasonable. Needs to be substantial.
Kennaway v Thompson [1981]: important to see when, how long and how frequent.

Question 17

2. Locality concept/case?

Answer 17

Character of neighbourhood: St Helen’s Smelting Co v Tipping, it was stated that the character of the neighbourhood was not relevant when physical damage had been caused, as it could never be said that it would be reasonable to cause such damage owing to the nature of the locality. Therefore, this is only relevant in relation to SPD.
Sturges v Bridgman (1879): “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.” i.e. character of neighbourhood must be considered. Also applied in Adams v Ursell [1913].

Question 18

3. Excessive behaviour concept/case?

Answer 18

If the defendant has behaved in an excessive manner, this may indicate that they are being unreasonable and creating a nuisance.
Y Farrer v Nelson (1885): D owned hundreds of pheasants - caused damage.

Question 19

4. Abnormal Sensitivity concept/case?

Answer 19

A claimant who is unusually sensitive cannot claim that activities that would not interfere with the ordinary occupier are a nuisance, simply because they are a nuisance to them alone.
N KEY Network Rail Infrastructure Ltd v CJ Morris: C argued railway signals affected with guitars. D argued use of studio abnormally sensitive. Lord Phillips questioned AS: looked at foreseeability. Unreasonable. Not liable.
N Robinson v Kilvert (1889): C had business same premises as D which involved storing heat sensitive paper. Heat damaged paper. Court help paper abnormally sensitive.
N Heath v Mayor of Brighton (1908): only C affected by electric station noise.
Y McKinnon Industries v Walker [1951]: contrast: if reasonable occupier affected. Residential house with commercial florist and nursery. Fumes from factory killed plants. Allowed to recover - including orchids despite sensitivity.

Question 20

5. Lack of care concept/case?

Answer 20

If the defendant has shown lack of care, this is likely to count in the claimant’s favour.
Andreae v Selfridge and Co Ltd [1938]: D undertaking extensive building work next to the C’s hotel causing the C loss of custom due to noise and dust. The claimant was successful.

Question 21

6. Malice concept/case?

Answer 21

If the defendant can point to no real justification for their actions as their aim is solely to annoy the claimant, this will normally constitute a nuisance.
Y Christie v Davey [1893]: music teacher neighbour made noise in return (shouting etc.) D’s noise excessive and unreasonable.
Y Hollywood Silver Fox Farm v Emmett [1936]: D fired gun shots at Cs fox breeding farms due to row about sign so as to frighten fox’s (miscarry and eat cubs) Unreasonable.

Question 22

7. Public benefit concept/case?

Answer 22

If the defendant’s activities serve a useful purpose or benefit the community, this will not mean that the defendant has not committed a nuisance.
N Adams v Ursell: fish and chip shop - inexpensive hot food was a rarity. But did not outweigh local resident’s need for no smell (It would be wrong to expect the claimant to bear too great a burden for the benefit of the public at large.)
N Dennis v Ministry of Defence [2003]: even the defence of the nation was not a sufficient public benefit for the court to find the flying of Harrier jet fighters reasonable and not a nuisance. (but note for remedies)
N Barr v Biffa Waste Services Ltd [2012]: confirmed that although public benefit might be a factor to be weighed up when balancing ‘give and take’, it is not to be given too much significance.

Question 23

Three planning permission cases re. character of an area?

Answer 23

KEY Coventry v Lawrence [2014]: C moved into a bungalow less than 1 kilometre from the defendant’s speedway stadium. The stadium had been built in 1975 with planning permission. However, it was in a very rural area with the nearest village being 15 miles from the claimants’ house. Court held noise from stadium amounted to nuisance.
N Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993]: planning permission may alter the character of the area, so that what was once a nuisance in that area is no longer a nuisance as the area has changed or vice versa.
Claim failed - planning permission changed nature of area to commercial area - lorrys were passing a lot/heavy traffic.
Y Wheeler v JJ Saunders Ltd [1996]: planning permission will not authorise a nuisance.
Planning permission to build pig sheds. SPD.

Question 24

What’s meant by moving to the nuisance?

Answer 24

Factor which defendants have sought to argue in relation to reasonableness, but without success. Defendant may try to argue that the claimant should not be able to complain about a nuisance which was present when the claimant moved to their property. However, this will not justify the commission of a nuisance. The fact that the claimant moved to the nuisance is immaterial: they are still entitled to bring an action.

Question 25

Cases for moving to the nuisance?

Answer 25

Key case: Sturges v Bridgman [1879]: doctor practice and vibrations - The defendant had operated their business for over 20 years. The claimant was successful. The fact the claimant moved to the nuisance was immaterial.
Y Miller and Another v Jackson and Others [1977]: cricket club playing for 70 years. Cricket balls into C garden. Nuisance - but claimants were awarded damages in lieu of an injunction as community interest outweighed the claimants’ interest.
Coventry v Lawrence [2014]: no defence that the claimant had acquired the property after the nuisance had started. Where the claimant uses the property for the same purpose as their predecessors, the argument of coming to the nuisance fails.

Question 26

What are the 6 defences for private nuisance?

Answer 26

1. 20 years’ prescription;
2. Statutory authority;
3. Consent;
4. Contributory negligence;
5. Act of third party; and
6. Act of God.

Question 27

1. 20 years’ prescription; case and context?

Answer 27

Actionable nuisance for 20 years or more but no action taken: note it is the length of time that a claimant could have complained that is crucial, not the length of time that the activity has been ongoing.
N Sturges v Bridgman: confectionary in existence for over 20 years, but only actionable in recent times. No defence.
N Coventry v Lawrence: not enough to show that the activity or noise had been carried on for 20 years. They had to establish that the activity had created a nuisance for 20 years or more.

Question 28

2. Statutory authority; case and context?

Answer 28

Where the defendant’s activity is being carried out on the basis of statutory authority, they will escape liability if they have exercised all due care and the nuisance is an inevitable consequence of the activity.
Y Allen v Gulf Oil Refining Ltd [1981]: noise from oil refinery operation - but HoL held authorised by statute
However; not the same for planning permission - see Barr v Biffa Waste Services Ltd.

Question 29

3. Consent; case and context?

Answer 29

If the claimant specifically agrees to the defendant causing the nuisance then that consent will be a defence - see consent test in general negligence.
N Pwllbach Colliery v Woodman [1915] consented to colliery activity but not to the specific disruption caused by the coal dust.

Question 30

4. Contributory negligence; case and context?

Answer 30

Usual rules of contributory negligence apply (s.1 Law Reform (Contributory Negligence) Act 1945).
Y (but no nuisance found) Trevett v Lee [1955]: milkman claimant failed to step over pipe - caught heel. (public nuisance)

Question 31

5. Act of third party; case and context?

Answer 31

Where the nuisance has been created by a third party for whom the defendant bears no responsibility, the defendant will not be liable for the nuisance, unless they have carried on the nuisance or it is reasonable for them to put a stop to it (Sedleigh-Denfield v O’Callaghan).

Question 32

6. Act of God; case and context?

Answer 32

Y Nichols v Marsland (1876): flooding was caused by a very unusual amount of rainfall which was wholly unexpected.
N Leakey v National Trust a land slip caused a mound of earth accumulated on the defendant’s land to damage the claimant’s property. The defendant was unable to rely on the defence of act of God because it had been aware of the mound of earth.

Question 33

3 Remedies in private nuisance?

Answer 33

1. Injunction
2. Damages
3. Abatement

Question 34

Which remedy is the primary remedy? Can it be full or partial?

Answer 34

Injunction: can be full and partial.
Partial injunction can be seen as a compromise: may award a partial injunction where the defendant’s activities are of public benefit i.e. in Kennaway v Thompson, D’s activity (power-boat racing) was very popular with the public.

Question 35

When can damages be awarded?

Answer 35

Physical damage: cost of repair or renewal can be claimed, whichever is the lower.
Damages can also be awarded for any consequential economic loss.
can be awarded in lieu of (instead of) an injunction where the loss is SPD. However, where a claimant establishes nuisance, prima facie, the remedy awarded should be an injunction. D needs to put forward arguments why injunction should not be granted.

Question 36

Three cases where damages where awarded in lieu of an injunction?

Answer 36

KEY case: Coventry v Lawrence [2015]: noise from stadium - injunction awarded. D appealed, arguing if nuisance committed damages should be awarded. Court disagreed - can award what they please - each case fact-sensitive and remedy depends on evidence and argument.
Dennis v Ministry of Defence [2003]: C owned property near RAF base: loud planes = nuisance. Awarded damages in lieu of injunction due to public benefit.
Miller v Jackson [1977]: housing estate built near cricket club. Cricket balls frequently landed in C’s garden. Balance between public interest and Millers’ rights. Public interest outweighed.

Question 37

What is the abatement remedy?

Answer 37

Abatement represents a ‘self-help’ remedy where the claimant acts to stop the nuisance.
t is this principle that allows a person to cut down branches overhanging their land (as in Lemmon v Webb), although they must be returned to the defendant and the claimant must do no more than is necessary to abate the nuisance!
Notice must usually be given by the claimant of their intention but need not be given if it is an emergency situation.