Unit 5- Private Nuisance Flashcards
Define Private Nuisance
Unreasonable interference with enjoyment/use of land
- Read v Lyons
Who can claim?
Proprietary interest- Hunter v Canary Wharf
- Not child or wife of someone with proprietary interest (Malone v Laskey
What are considered actionable interferences?
Hunter v Canary Wharf 3:
1) Encroachment (branches)
2) Physical injury to land
3) Quiet enjoyment of property
What are not considered actionable interferences?
Right to a view (alder’s case)
Right to TV reception (Hunter v Canary Wharf)
Elegant and dainty modes of use of the land- Waters v Selfe
What does Waters v Selfe say?
Elegant and dainty modes of use of land are not actionable interferences
Must materially interfere with ordinary use of land
Define unlawful
Unreasonable and substantial- Sedleigh- Denfield v O’Callaghan
What is the test for unlawfulness?
What is reasonable according to the ordinary usages of mankind living in a particular society
What are the factors that are taken into account for deciding unlawfulness?
Frequency/ duration of interference
Excessiveness/ extent of harm
Abnormal sensitivity
Character of the neighbourhood
Public Benefit
Malice
Explain ‘frequency/ duration’ factor
The higher both, the more likely it will be deemed an interference- Miller v Jackson cricket balls
A one off event can be unlawful if it is caused by a continuous state of the defendant’s premises- Spicer v Smee (faulty electrical cables)
Explain ‘excessiveness/ extent of harm’ factor
Two part test
Objective- how far from the norm has the defendant’s behaviour deviated
- Matania: noise 8-5pm considered excessive
- Physical damage often considered excessive
Subjective- effect on claimant
Explain ‘abnormal sensitivity’ factor
If harm is due to AS then no claim can be made (failed because of this in Robinson v Kilvern)
HOWEVER, if F/D factor can be proven, then full loss can be claimed even if it is due to AI- in the case of McKinnon Industries v Walker fumes would have damaged normal plants, so claimant could get damages for harm to rare orchids
Explain ‘character of neighbourhood’ factor
Sturges v Bridgman- fancy area? (noisy anyway?
Hasley v Esso Petroleum- can’t claim for loss of character, can for physical damage
Gillingham v Medway Docks Ltd- planning permission can change character of neighbourhood, making something once unlawful ok
Explain ‘public benefit’ factor
Adams v Ursell- a smelly chippy can be of public benefit
Courts more likely to consider when adjusting damages, don’t want defendant’s to be absolved of private nuisance liability for the sake of public benefit
Explain ‘malice’ factor
If acts intentional/ malicious then probably unlawful
- Hollywood Silver Fox Farm v Emmett
What damages are recoverable?
Consequential Economic Loss- Andreae v Selfridge & Co Ltd
NOT for personal property OR personal injury (Hunter v Canary Wharf)
Who can the claimant sue in PN?
Creator of nuisance (even if no longer in occupation)
Occupier of land- liable for nuisance created and ones that he has not taken reasonable steps to mitigate. Include
- Contractors
- Employees (Vicarious Liability)
- Visitors (Lippiatt v South Gloucestershie CC)
- Trespassers (Sedleigh- Denfield v O’Callaghan)
- Natural events (Leakey v National Trust)
- Predecessors in title (Roberts)
- Where occupier has adopted the nuisance i.e. made use of it (Sedleigh- Denfield v O’Callaghan)
Landlord- not usually liable, but in following circumstances
- Through letting land has given implied/ express permission (Tetley v Chitty)
- Nuisance existed before land let and LL should have known about it
- Promised repair but has failed to repair (Payne v Rogers
What are the effective defences to PN?
Effective- escape liability
Contributory Negligence
Consent
Act of God (Wringe v Cohen)
Statutory permission (Allen v Gulf Oil)
What are the ineffective defences to PN?
Ineffective- won’t allow escape from liability but will be considered when deciding appropriate remedy
Came to nuisance (Miller v Jackson)
Public Benefit (Miller v Jackson, Kennaway v Thompson)
Contributory actions of others
Planning permission
- Won’t legitimise a nuisance (Wheeler v Saunders)
- May operate to change character of neighbourhood (Gillingham BC v Medway Docks Co Ltd)
What does the claimant have to prove?
1) Locus standi
2) Actionable interference
3) Unlawful
4) Suffered recoverable damages
5) Causation
- But for/ NAI (Barnett)
- Reasonably foreseeable (Wagon Mound No 1)
What are the remedies available?
Damages
- Damage to claimant’s land (reflect cost of repair or loss of value of land)
- Discomfort- hard to prove, consideration loss of amenity (Hunter v Canary Wharf)
Injunction- only where damages not enough
- Claimant seeking to prevent future breaches
- P/M/P
Damages in lieu of injunction- Shelfer, appropriate where
- Case is suitable for injunction
- Injury to claimant’s legal rights/ damages;
+ Is small
+ Can be estimated in money
+ Can be adequately compensated by small payment
- Would be oppressive to the defendant to grant an injunction
Abatement (self help)
- Removal of interference by victim
- Must give notice unless it’s an emergency (Lemmon v Webb)
- Must return interference (Mills v Brooker)
Case law concerning the relationship between public benefit and injunctions?
Miller v Jackson- damages awarded but would have been inequitable to grant injunction due to function cricket ground served, how long it had been there, Miller benefited from living next to open space and Miller cam to nuisance
Kennaway v Thompson- injunction granted as public benefit of motor boat racing not significant enough. P injunction granted after appeal. NB: came to nuisance
When concluding, what else should be considered?
Claim in negligence if there are any grey areas
How do Private Nuisance and Negligence claims compare?
PN:
- Class of claimants narrower
- Claim requires continuity of nuisance
- Defendant’s financial resources taken into account
- Intangible damage allowed as well as tangible
- Personal injury no longer actionable
- Injunctions are available as remedies
PN and N:
Unreasonableness used or both (PN- with regard to defendant’s use of land, so could still be liable even though exercised reasonable care)
N:
Opposite for all of above
