Private Nuisance

Question 1

What is a private nuisance? (2)

Answer 1

An interference with a persons enjoyment/use of their land- civil action, generally courts require it to be a continuing state of affairs

Question 2

What is classed as a private nuisance? (3)

Answer 2

1. Nuisance by encroachment on a neighbours land
2. Nuisance by direct physical injury to neighbours land
3. Nuisance by interference with a neighbours quiet enjoyment of land

Question 3

Claimant

Answer 3

Must have an interest in the land (own/a right over the land) in order to claim private nuisance

Question 4

Foster v Warblington

Answer 4

Facts: C was an oyster merchant who occupied oyster beds, he excluded everybody from them however couldn’t prove ownership of them

Held: C could bring a private nuisance action caused by the discharge of sewage by D into the beds bc he was in exclusive possession of the land even though he couldn’t prove his title

Question 5

Malone v Laskey

Answer 5

Facts: Company had rented a house for a manager to live in, his wife was injured after a bracket fell of her head caused by vibrations of machinery on D’s property

Held: CoA decided that the wife couldn’t make a claim as she had no interest in the property

Question 6

Hunter v Canary wharf and Hunter v London Docklands

Answer 6

Facts: In both cases the claimants included families as well as tenants/owners. First was an interference with TV signal caused by wharf construction and the other concerned dust damage during road construction

Held: HoL decided only households with a right to land to commence a private nuisance action- was an annoyance not a nuisance

Question 7

Defendant (2)

Answer 7

Can be the person who causes the nuisance or, someone who allows it to continue

Question 8

Leakey v National Trust

Answer 8

Facts: The trust took possession of a historic site and contunied an existing nuisnace of unstable land. A land slippage occurred on D’s land following drought then rain. D’s were aware of the erosion and there had been previous slippage

Held: Liable for the cost of repairs for C’s cottage and to make the area safe

Question 9

Occupier is liable if… (3)

Answer 9

…. they should know/ought to know about the nuisance:

1. Created by act of stranger
2. Created by act of nature
3. Created by previous occupier

Question 10

Landlord is liable if… (3)

Answer 10

… 1. They authorise tenant to commit PN

2. At the date of letting they know/ought to know PN
3. PN created during tenancy & no agreement between them, making the tenant responsible for such repairs

Question 11

Loss of amenity

Answer 11

Meaning loss of use/enjoyment of land- location is relevant however less so when physical damage occurs

Question 12

Unreasonable use of land (5)

Answer 12

Courts consider factors:

1. Sensitivity of C
2. Duration/degree of interference
3. Character of area
4. Foreseeability of damage (Wagon Mound)
5. Any malice on D’s part

Question 13

Sturges v Bridgeman quote

Answer 13

“what may be a nuisance in Belgrave Square wouldn’t necessarily be so in Bermondsey”

Question 14

Coming to a nuisance

Answer 14

No defence in a case of PN to argue that it was there long before C’s came to it

Question 15

Miller v Jackson (character of area)

Answer 15

Facts: D’s members of a cricket club which existed over 70yrs, houses were built in a surrounding field and C owned one. She complained about cricket balls landing in her garden

Held: Liable in negligence and nuisance but an injuction to prevent it was refused and damages awarded instead

Question 16

River cruises v Kimbolton Fireworks (duration/time)

Answer 16

Facts: 20m firework display set fire to some moored barges

Held: Even though it was short, there was physical damage so it was actionable

Question 17

Degree of interference

Answer 17

The greater the degree, the more likely it will be a nuisance and unlawful- depend of time, place etc

Physical damage- even samll amounts may suffice

Question 18

Murdoch v Glacier Metal (degree of interference)

Answer 18

Facts: C was being kept awake by a constant low level droning from D’s factory

Held: No nuisance- more noise from the nearby road to factory noise wouldn’t interfere with ordinary existence

Question 19

McKinnon v Walker (sensitivity)

Answer 19

Facts: Gas leaked from D’s factory. C ran a plant nursery 600ft away and orchids were damaged

Held: Although orchids were unusually sensitive the court found that the gas would’ve damaged ordinary flowers- interference was unlawful

Question 20

Silver Fox Farm v Emmett (malice)

Answer 20

Facts: C and D had a feud over a sign C put up that could be seen from D’s land. D got his son to firea shotgun near the property boundary knowing it would cause foxes to miscarry

Held: C entitled to an injunction and damages. Although its not unreasonable for a farmer to use a shotgun on his own land, D acted maliciously

Question 21

Damage

Answer 21

PN is not actionable per se (by itself)- there must be some damage, harm, injury or inconvenience

Question 22

Statutory authority (defence)

Answer 22

If D can show his/her conduct was authorised by law e.g. Civil Aviation Act 1982

Question 23

Prescription (defence)

Answer 23

Claim by D that he/she has acquired the right to act in a particular way bc have done so for 20 years (Sturges v Bridgeman)

Question 24

Remedies (3)

Answer 24

Damages, injuntions and abatement (C can deal with nuisance themselves reasonably)

D can argue damages would be a suitable alternative than injunction

Question 25

Nuisance and negligence overlap

Answer 25

C doesn’t have to show why the neighbour interferes with land however has to show unreasonable interference with fault element e.g. malice, time of day

Question 26

Negative evaluation (2)

Answer 26

PN is outdated and should be replaced with statutory protection

The test for nuisance is outdated and should be replaced with a modern approach based around fault liability

Question 27

Positive evaluation

Answer 27

Courts encouraged use of ADR in civil disputes to prevent strained relationships with neighbours who still have to live near eachother- avoids a court case

Question 28

Reasonable foreseeability of the type of damage

Answer 28

It doesn’t need to be shown D has taken reasonable care to avoid causing a nuisance

Wagon Mound, Cambridge Water Co