Private nuiscance

Question 1

Definition

Answer 1

Indirect and unreasonable interferences to land in the posession of others, resulting from a direct action.

Question 2

Three requirements for private nuisance to be found

Answer 2

1 - Must be a relationship ‘between neighbours’

2 - Substantial interference with use / enjoyment of
land

3 - Interference caused claimant reasonable discomfort

Question 3

Details on ‘neighbour’ element

Answer 3

Hunter v Canary Wharf Ltd [1997] affirmed that the claimant must have an interest or exclusive possession of the land affected.

Doesn’t have to be owner of the land, just a resident, held in Khorasandjian v Bush [1997]

Question 4

What are ‘Substantial interferences’

Answer 4

Claimants must be able to prove that the defendant caused a substantial interference with their use or enjoyment of their land….

Includes: Physical damage to land; substantial interference with enjoyment of land through smells, vibrations, noise, dust & other omissions, encroachment onto land through roots and branches.

Question 5

What amounts to ‘reasonable discomfort’ (three part test)

Answer 5

Three part test:
Locality
1 - Must directly affect the claimants land, as seen in Sturges v Bridgeman [1879]

Duration
2 - The longer the interference goes on, the more likely it is to become unreasonable; It cannot be a ‘single escape’ such as in Bolton v Stone [1951] (cricket ball case)

Sensitivity / Malice
3 - Sensitivity - If the damage is due more to the sensitivity of the claimant’s property than to the defendant’s conduct then no nuisance is committed
4 - Malice - It helps to find the defendant unreasonable with the use of their land if they perform the direct action with malice. Christie v Davey [1893]

Question 6

2 Defences

Answer 6

Statute laws
If the defendant is using their land due to authorisation by a statute, then there is no claim of nuisance to be made; Allen v Gulf oil refining Ltd [1981] - Held that a statute passed in 1960 for the refinery’s construction gave full defence as it was implied that there would be noise etc during operation.

‘20 years prescription’
If the claimant has been suffering nuisance for over 20 years then they cannot raise a claim - Sturges v Bridgeman [1879]

Question 7

What IS NOT a defence?

Answer 7

Important note - If the claimant has ‘come towards the nuisance’, seen in sturgeon v bridgeman, this is not a defence.

Question 8

3 Remedies

Answer 8

Injunction:
Seeks to prevent nuisance from occurring - Seen in Sturges v Bridgeman [1879]
Generally the favoured choice, courts tend to avoid damages.

Damages:
Normally awarded for two conditions:
Injunction not possible - i.e. defendant stopping use of land would affect other people, such as Shelfer [2012], electrical company supplying London homes.
Loss of value - If claimants land lost value by nuisance, lost value given in damages

Abatement:
The action of the claimant taking matters into their own hands in order to stop nuisance. Only available for encroachment; I.e. if claimant’s land was encroached upon by overgrown branches, which they cut down themselves.