Tort Law - Nuisance

Question 1

What is the definition of nuisance? Who defined it?

Answer 1

Nuisance was originally defined by Professor Winfield as ‘an unlawful indirect interference with a persons use or enjoyment of the land coming from neighbouring land’

Question 2

In order to make a claim in nuisance what must the claimant have?

Answer 2

The claimant must have an interest in the land that has been interfered with, must be the owner or the tenant.

Question 3

Does it need to be proved that the defendant has created the nuisance? What case supports this?

Answer 3

No
Sedleigh Denfield. Held: as the occupiers of land they were liable in nuisance, they knew of the nuisance and allowed it to continue and thus adopted the nuisance, it did not matter that they had not created it

Question 4

Establishing nuisance can be broken down into what elements?

Answer 4

1. An unreasonable use of land
2. Leading to an indirect interference
3. With the claimants use or enjoyment of the land

Question 5

An unreasonable use of land: what does this mean?

Answer 5

It must be proved that the interference is so unreasonable that it is no longer a lawful use of land.
This requires balancing the rights of the neighbours to use their land as they wish against the rights of others to enjoy their land without interference

Question 6

An unreasonable use of land: what factors do the courts consider when determining reasonableness?

Answer 6

1. Locality
2. Duration
3. Sensitivity of the claimant
4. Malice
5. Social benefit of the activity

Question 7

Locality: how does this affect reasonableness? What case supports this?

Answer 7

The character of the neighbourhood will
be considered to determine if the defendants use of land is reasonable according to the nature of the area.
Fearn v Tate. Held: the use of land was consistent with the character of the area, it was an inner city urban environment, with a significant amount of tourist activity.
Sturges v Bridgman. ‘What would be a nuisance in one place would not necessarily be so in another’

Question 8

Duration of the interference: how does this affect reasonableness?

Answer 8

The longer the duration of the interference, the more likely that the use of land will be regarded as unreasonable. Usually repetition is required. The courts will also consider the time of the interference, for example loud noise at night is more likely to be regarded as unreasonable. A one off incident is not likely to be sufficient but has been held to amount to a nuisance in certain circumstances

Question 9

Duration of the interference: what case supports this?

Answer 9

Crown River Cruises. Held: there was actionable nuisance due to the property damage, even though it only lasted 20 minutes

Question 10

Sensitivity of the claimant: how does this affect reasonableness?

Answer 10

If the use of the defendants land only amounts to an interference because of an unusual sensitivity of the claimant it is unlikely that the use of land will amount to nuisance.

Question 11

Sensitivity of the claimant: what case supports this?

Answer 11

Network Rail Infrastructure v Morris. Held: the claim was not successful as no one else was affected by the use of land so it was not regarded as unreasonable

Question 12

Malice: how does this affect reasonableness?

Answer 12

If the defendants use of land is being conducted for the purpose of causing harm this will significantly increase the chances of it being regarded as unreasonable

Question 13

Malice: what case supports this?

Answer 13

Hollywood Silver Fox Farm. Held: the claim was successful despite the fact that the nuisance arose due to a particular sensitivity of the claimant, this was because of the malice behind the acts

Question 14

Social benefit of the activity: how does this affect reasonableness?

Answer 14

If an activity is providing an employment, amenity or a wider benefit to the community the courts may still find that the activity amounts to a nuisance but refuse to impose an injunction as a remedy.

Question 15

Social benefit of the activity: what case supports this?

Answer 15

Miller v Jackeson. Held: the cricket club was found liable in nuisance however, the court refused to enforce an injunction because of the value to the community of being able to play at the ground

Question 16

Leading to an indirect interference: what main forms does this come in?

Answer 16

Indirect interference can come in two main forms:

1. A loss of amenity, meaning that a claimant cannot enjoy their land because the defendants activities are indirectly interfering with this
2. The defendants activities are causing physical damage to the claimants land

Sometimes encroachment onto the claimants land, e.g. overhanging tree branches can amount to an indirect interference

Question 17

With the claimants use or enjoyment of land: what does this mean?

Answer 17

This means that the use of land has been interfered with, not simply that the users of the land have been inconvenienced.

Question 18

With the claimants use or enjoyment of the land: what case supports this?

Answer 18

Hunter v Canary Wharf. Held: the claim was unsuccessful as the interference had not prevented the use or enjoyment of the land, rather their enjoyment of the TV.

Question 19

What are the two defences to nuisance?

Answer 19

1. Prescription

2. Statutory authority

Question 20

Prescription: what is it?

Answer 20

Prescription is a claim that the activity being identified as a nuisance has been continuing as an actionable nuisance for at least 20 years with no complaints made during that time. If this is proved the defendant has the right to continue with the activity

Question 21

Prescription: which case supports this?

Answer 21

Sturges v Bridgman. Held: the defence failed, an actionable nuisance had been continuing for over 20 years, the actionable nuisance only began when the doctor was first affected by the defendants activities

Question 22

Statutory authority: what does this mean?

Answer 22

This means that the defendant can claim that they have legal authority to carry out the activity, either by statute or by planning permission

Question 23

Statutory authority: which cases support this?

Answer 23

Allen. Held: the statutory authority to build the refinery acted as a defence, parliament would not authorise the construction without also authorising the operation of the premises
Coventry v Lawrence. The Supreme Court held that the fact that planning permission has been granted does not mean that the relevant activity is lawful.

Question 24

What remedies are awarded upon finding a nuisance? Which case supports this?

Answer 24

Damages or an injunction will be awarded.
Coventry v Lawrence. In this case the Supreme Court said an injunction could be the default order in a nuisance claim, however, it is open to the defendant to argue that damages would be a suitable alternative and an injunction will not automatically be granted