Private Nuisance Flashcards
What is a private nuisance? (2)
An interference with a persons enjoyment/use of their land- civil action, generally courts require it to be a continuing state of affairs
What is classed as a private nuisance? (3)
- Nuisance by encroachment on a neighbours land
- Nuisance by direct physical injury to neighbours land
- Nuisance by interference with a neighbours quiet enjoyment of land
Claimant
Must have an interest in the land (own/a right over the land) in order to claim private nuisance
Foster v Warblington
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
Malone v Laskey
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
Hunter v Canary wharf and Hunter v London Docklands
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
Defendant (2)
Can be the person who causes the nuisance or, someone who allows it to continue
Leakey v National Trust
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
Occupier is liable if… (3)
…. they should know/ought to know about the nuisance:
- Created by act of stranger
- Created by act of nature
- Created by previous occupier
Landlord is liable if… (3)
… 1. They authorise tenant to commit PN
- At the date of letting they know/ought to know PN
- PN created during tenancy & no agreement between them, making the tenant responsible for such repairs
Loss of amenity
Meaning loss of use/enjoyment of land- location is relevant however less so when physical damage occurs
Unreasonable use of land (5)
Courts consider factors:
- Sensitivity of C
- Duration/degree of interference
- Character of area
- Foreseeability of damage (Wagon Mound)
- Any malice on D’s part
Sturges v Bridgeman quote
“what may be a nuisance in Belgrave Square wouldn’t necessarily be so in Bermondsey”
Coming to a nuisance
No defence in a case of PN to argue that it was there long before C’s came to it
Miller v Jackson (character of area)
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
River cruises v Kimbolton Fireworks (duration/time)
Facts: 20m firework display set fire to some moored barges
Held: Even though it was short, there was physical damage so it was actionable
Degree of interference
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
Murdoch v Glacier Metal (degree of interference)
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
McKinnon v Walker (sensitivity)
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
Silver Fox Farm v Emmett (malice)
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
Damage
PN is not actionable per se (by itself)- there must be some damage, harm, injury or inconvenience
Statutory authority (defence)
If D can show his/her conduct was authorised by law e.g. Civil Aviation Act 1982
Prescription (defence)
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)
Remedies (3)
Damages, injuntions and abatement (C can deal with nuisance themselves reasonably)
D can argue damages would be a suitable alternative than injunction
Nuisance and negligence overlap
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
Negative evaluation (2)
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
Positive evaluation
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
Reasonable foreseeability of the type of damage
It doesn’t need to be shown D has taken reasonable care to avoid causing a nuisance
Wagon Mound, Cambridge Water Co
