Private Nuisance [Tort Law] Flashcards
Claimant
A C can be anyone with an interest in the land (Dobson v Thames Water) and who is affected by the interference (Hunter v Canary Wharf).
Defendant
A D is someone who is causing or allowing the nuisance (Tetley v Chitty) or someone who didn’t create the nuisance but is aware of it and allowing it to continue (Sedleigh-Denfield v O’Callaghan).
Unlawful [Paragraph 3]
The first says that the interference must be unlawful, although not necessarily a criminal act. The court will ask ‘in all circumstances, is it reasonable for the C to have to suffer the interference?’ (Southwark London Borough v Mills).
Indirect Interference
The second says that there must be an indirect interference, meaning D’s use of their own land must interfere with C’s use/enjoyment of their own. Feelings of emotional distress will be included (Thompson-Schwab v Costaki). However, ‘things of delight’ (such as a right to light or to a view) will not be protected (Hunter v Canary Wharf).
Locality Test (Factors of Reasonableness)
The first is the Locality Test, which considers whether D’s use of their land is unusual, and therefore unreasonable, for the type of area it is in. As said in Sturges v Bridgman, ‘what would be a nuisance in Belgrave Square (residential) would not necessarily be so in Bermondsey (industrial)’.
Duration of the Nuisance Test (Factors of Reasonableness)
The next is the Duration of the Nuisance Test, which says that something is more likely to be considered a nuisance if it lasts a long time or occurs during unsociable hours (Halsey v Esso Petroleum). Although in Crown River Cruises v Kimbolton Fireworks, an event lasting 20 minutes was considered a nuisance.
Sensitivity of the C Test (Factors of Reasonableness)
Then is the Sensitivity of the C Test, which says that if the C is unusually sensitive, and is affected in an unforeseeable way, then the action may not be a nuisance (Robinson v Kilvert). Although if similar damage occurs to normal things, then the C isn’t unusually sensitive (McKinnon Industries v Walker).
Malice Test (Factors of Reasonableness)
After, is the Malice Test, which says that if the interference was done deliberately with malice, then this will normally amount to a Private Nuisance (Christie v Davey).
Social Benefit Test (Factors of Reasonableness)
Last, is the Social Benefit Test which says that if the D’s actions provide a benefit to the community, then they may not be a nuisance (Miller v Jackson
Coming to the Nuisance (Defences)
The first is Coming to the Nuisance (Volenti Non Fit Injuria), when the C consents to the nuisance by moving next to it (Miller v Jackson). Although this defence has never been successful and cannot be used alone.
Prescription (Defences)
Another is Prescription, in which the D has been causing a nuisance for 20 years continuously and C has never complained (Sturges v Bridgman). It must have been a nuisance for 20 years not just the action itself occurring for that long.
Statutory Authority (Defences)
Finally, is Statutory Authority, in which an Act of Parliament regulates or licenses D’s actions, providing a full defence for D (Allen v Gulf Oil Refining). Local Authority Planning Permission may act as statutory authority only if it ‘changes the character of the neighbourhood’. In Coventry v Lawrence it was said that planning permission is not a blanket defence and is only used to aid the judge in considering whether there was a nuisance and what remedies are suitable.
