public and private nuisance

Question 1

define the tort of private nuisance

Answer 1

• an unlawful, indirect interference with another person’s use or enjoyment of land or rights over it

Question 2

define the tort of public nuisance

Answer 2

• defined as where a group of people is affected by the use of land in the locality

Question 3

AO1 private nuisance

Answer 3

• private nuisance is a tort which attempts to balance conflicting interests in the use of land.
• the claimants are the people suffering the harm
• the defendants are those accused of causing the nuisance
• private nuisance requires proof of unlawful, indirect interference with a person’s use and enjoyment of land (or rights over that land)
• the law of nuisance accepts a wide range of indirect interference such as fumes, smoke, smells and vibrations (St Helens smelting and tipping)
• unlawful interference means unreasonable and in establishing unreasonableness the courts will take several factors into account such as locality (Kennaway v Thompson), duration (Spicer v Smee) and sensitivity (Network Rail)
• defences may include- statutory authority or planning permission
• remedies may include damages or an injunction (Coventry v Lawrence)

Question 4

what is private nuisance?

Answer 4

• this is where a persons use or enjoyment of their property is affected by the unreasonable behaviour of a neighbour

Question 5

who can the claimant be?

Answer 5

• the owner, tenant, or whoever has responsibility for the land.
• a child of the owners family who may have a legal interest in the property cannot be a claimant

Question 6

who is the defendant

Answer 6

• the occupier who will be held liable for the nuisance
• when the occupiers themselves are not the actual cause of the nuisance, they can still be held liable if they haven’t dealt with the problem
• a defendant can also b liable where the nuisance is a result of natural causes and hasn’t been dealt with

Question 7

what are the elements of private nuisance?

Answer 7

• the tort must be unlawful (not illegal)
• the interference occurred does not have to prove fault

Question 8

what is indirect interference?

Answer 8

• if the interference is obvious and direct, noise, smell and so on, then the defendant can be found liable. if it is indirect, an obstructed view, light being blocked or even television reception being affected, then this is not enough.

Question 9

emotional distress

Answer 9

• the courts are prepared to consider emotional distress- the running of a brothel in a respectable area of London in Thompson-Schwab v Costaki

Question 10

what are factors of reasonableness

Answer 10

• locality- what sort of an area is it? is it purely residential, partly commercial or industrial?
• duration of the interference- a one-off noisy party may not be a nuisance but regular late-night parties could be.
• sensitivity of the claimant, or foreseeability
• malice- is the unreasonable behaviour spiteful?
• social benefit- is the defendant providing a benefit to the community (Miller v Jackson)

Question 11

defences

Answer 11

• prescription: if the action has been carried on for at least 20 years and there has been no complaint in that time, the defendant might be able to use this defence.
• statutory authority: the defendant may argue that the nuisance is regulated and licensed by law
• if the permission is local authority, this can also be a justification for nuisance

Question 12

remedies

Answer 12

• injunctions
• shelfer test
• an injunction could be the default order in a nuisance claim
• the defendant may be able to argue an award of damages is more suitable
• damages should only be awarded if
• the injury to the claimants’ rights was small
• the claimant can be compensated by money
• a small payment is adequate
• and it would be unfair on the defendant to grant an injunction