Tort Law: Private Nuisance

What is needed to make a Claimant?

A claimant must have an interest in land (own/rent)
(Hunter V Canary Wharf)

Defendants need not have an interest in land, they can cause the nuisance, or be the successor in title who allows the nuisance which means?

Ownership of land

Brybook Barn Garden Centre V Kenty County Council

Where was it seen that defendants need not have an interest in land they can cause or allow the nuisance?

Tetley V Chitty

Where was it seen that defendants need not have an interest in land they can adopt a nuisance?

Failing to deal with the problem

Sedleigh Denfield V O’Callaghan

Where was it seen that defendants need not have an interest in land they can fail to deal with natural risk?

Leaky V National Trust

Which are the two types of nuisance?

Direct: Roots of a tree encroaching foundations or more commonly

Indirect: Noise, smell or smoke etc

What is the definition of nuisance?

‘An (unlawful=unreasonable) interference with a persons enjoyment of land or a right connected to it’

How do you establish a nuisance?

Fault need not be proved, but can be relevant, you must show that Ds use of land is unreasonable. Courts also balance D’s ability to use their own land. Mere irritation or annoyance is not enough.

What are the interests that are not protected?

Light, television signals (Hunter V Canary Wharf),

a view (Fearn and others V Board of Trustees of the Tate Gallery)

Where was it seen that the courts may protect propertys value against offensive behaviour?

Law v Florin Place Ltd

What are the factors considered by the courts?

• Duration

• Sensitivity Of Claimant

• Locality

• Malice

• Social Benefit/Community benefit

Factors considered by the courts: Duration

Longer the nuisance + the time of day/year can affect it

Crown River Cruises Ltd V Kimbolton Fireworks Ltd

Factors considered by the courts: Sensitivity of Claimant

If C is more sensitive D cannot be expected not to enjoy their land ‘abnormal sensitivity’

(Robinson V Kilvert)

Factors considered by the courts: Locality

The location of the area affects what can be reasonably tolerated ie: purely residential, partly residential/commercial, town/country or changes

(Sturges V Bridgman)

Factors considered by the courts: Malice

Deliberate harmful behaviour will normally be a nuisance

(Hollywood Silver Fox Farm V Emmett)

Factors considered by the courts: Social Benefit/Community Benefit

The greater the benefit to the community, the less likely it will be a nuisance (Miller V Jackson)

Specific Defences to Nuisances Claims: Prescription

Nuisance arising for 20 years, with no complaint, a prescriptive right arises. The 20 year period only starts when the potential nuisance arises
(Sturges V Bridgeman)

Specific Defences to Nuisances Claims: Moving to the nuisance

Moving to a nuisance is not acceptance of it

(Miller V Jackson)

Specific Defences to Nuisances Claims: Statutory Authority

Many nuisances regulated by statutes which provide defences- purposively interpreted (Allen V Gulf Oil Refining)

Specific Defences to Nuisances Claims: Planning Permission

Local authority planning permission can act as a defence, but only if its explicitly changes the character of the area (Wheeler V Saunders)

Specific Defences to Nuisances Claims: Effect of Coventry V Lawrence

Locality still relevant (Sturges V Bridgman);

If C uses property for same purpose as predecessor D cannot use moving to nuisance

Where C builds on the land/changes purposes- the claim may still fail

How can volenti apply in Private Nuisance?

Can apply if there are active steps taken by C to encourage the nuisance

Remedies: Injuctions

Most common until Coventry V Lawrence

Historically Prohibitive- limit use of a lake for racing boats (Kennaway V Thompson)

Remedies: Abatement

The Courts provide authority for the claimant to prevent or reduce the nuisance

(Lemmon V Webb)

What is the original test for Private Nuisance (Con) Damages?

Shelfer V City of London Electric Lighting Co- damages should only awarded when

1) The injury to the claimants rights was small, and

2) The Claimant can be compensated by a small amount of money

3) It would be unfair on the defendant to grant an injunction

Where was Private Nuisance Damages clarified in?

Coventry V Lawrence

1) Injunction can be default claim

2) Open for D to argue for the appropriateness of damages

3) Shelfer should not be applied rigidly

4) Injunction is not automatically granted even if Shelfer is satsified