Unit 5- Private Nuisance

Question 1

Define Private Nuisance

Answer 1

Unreasonable interference with enjoyment/use of land

- Read v Lyons

Question 2

Who can claim?

Answer 2

Proprietary interest- Hunter v Canary Wharf

- Not child or wife of someone with proprietary interest (Malone v Laskey

Question 3

What are considered actionable interferences?

Answer 3

Hunter v Canary Wharf 3:

1) Encroachment (branches)
2) Physical injury to land
3) Quiet enjoyment of property

Question 4

What are not considered actionable interferences?

Answer 4

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

Question 5

What does Waters v Selfe say?

Answer 5

Elegant and dainty modes of use of land are not actionable interferences

Must materially interfere with ordinary use of land

Question 6

Define unlawful

Answer 6

Unreasonable and substantial- Sedleigh- Denfield v O’Callaghan

Question 7

What is the test for unlawfulness?

Answer 7

What is reasonable according to the ordinary usages of mankind living in a particular society

Question 8

What are the factors that are taken into account for deciding unlawfulness?

Answer 8

Frequency/ duration of interference

Excessiveness/ extent of harm

Abnormal sensitivity

Character of the neighbourhood

Public Benefit

Malice

Question 9

Explain ‘frequency/ duration’ factor

Answer 9

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)

Question 10

Explain ‘excessiveness/ extent of harm’ factor

Answer 10

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

Question 11

Explain ‘abnormal sensitivity’ factor

Answer 11

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

Question 12

Explain ‘character of neighbourhood’ factor

Answer 12

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

Question 13

Explain ‘public benefit’ factor

Answer 13

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

Question 14

Explain ‘malice’ factor

Answer 14

If acts intentional/ malicious then probably unlawful

- Hollywood Silver Fox Farm v Emmett

Question 15

What damages are recoverable?

Answer 15

Consequential Economic Loss- Andreae v Selfridge & Co Ltd

NOT for personal property OR personal injury (Hunter v Canary Wharf)

Question 16

Who can the claimant sue in PN?

Answer 16

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

Question 17

What are the effective defences to PN?

Answer 17

Effective- escape liability

Contributory Negligence
Consent
Act of God (Wringe v Cohen)
Statutory permission (Allen v Gulf Oil)

Question 18

What are the ineffective defences to PN?

Answer 18

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)

Question 19

What does the claimant have to prove?

Answer 19

1) Locus standi
2) Actionable interference
3) Unlawful
4) Suffered recoverable damages

5) Causation
- But for/ NAI (Barnett)
- Reasonably foreseeable (Wagon Mound No 1)

Question 20

What are the remedies available?

Answer 20

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)

Question 21

Case law concerning the relationship between public benefit and injunctions?

Answer 21

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

Question 22

When concluding, what else should be considered?

Answer 22

Claim in negligence if there are any grey areas

Question 23

How do Private Nuisance and Negligence claims compare?

Answer 23

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