Private Nuisance - OCR A Level Law

Definition of privet nuisance

An indirect and unlawful interference with a persons use or enjoyment of land, coming from neighbouring land

Elements of privet nuisance

- The interference of the land must be indirect (and come from the defendants use of their land)

- The interference with land must be unlawful

- C must be able to sue D (both parties must be eligible)

Indirect interference

Can involve physical damage or non-physical discomfort

When will damage amount to an interference

- Physical damage will always be an interference

- Non-Physical damage will be interference if it makes it physically unpleasant to be on the land

Tree roots growing on C's land can amount to interference

Davey v Harrow Corporation (1958)

Flooding can amount to interference

Sedleigh Denfeild v O' Callaghan (1940)

Loud noises can amount to interference

Coventry v Lawrence

Bad smells can amount to interference

Adams v Ursell

Emotional distress is enough to count as interference

Thompson-Schwab v Costaki (1956)

Blocking a view is not interfering with 'use or enjoyment' of land

it is just 'things of delight'

Bland v Moseley (1587)

Watching TV is not using or enjoying land

Hunter v Canary Wharf Ltd (1997)

Definition of continuing interference

Where a natural hazard develops and D fails to take precautions to stop it interfering with others land.

Leaky v National Trust (1980)

Despite not having caused the land slide, the failure to do anything about it was enough for interference

Meaning of unlawful interference

Unreasonable use of land

legal principle of Southwark London Borough Council v Mills

- Everyday noise if not unreasonable use of land

- There must be some give and take with out neighbours, unreasonable use is only what goes beyond acceptable behaviour

Factors used when deciding unreasonable use

- Sensitivity of C

- Locality

- Duration

- Malice

- Social benefit

Sensitivity of C

C has only been effected because of some abnormal sensitivity, ie. most people would not have been effected by what D did

Use can not be unreasonable if it would not usually cause damage

Robinson v Kilvert (1889)

In deciding if D's use was unreasonable, the court should consider if it was reasonably foreseeable that the use would cause this damage

Network Rail Infrastructure Ltd. v Morris (2004)

Locality

This means considering what is reasonable based on the area

What is reasonable for one area depends on the character and make-up

Sturges v Bridgman (1879)

The unreasonableness of D's actions should be based on what is expected of the area they are in, but if physical damage is caused, this will always be unreasonable, no matter the area

St. Helen's Smelting Co. v Tipping Ltd. (1965)

Duration

Considering when the interference happens and how long it lasts

What is reasonable at one time of day, may not be reasonable at another time

Halsey v Esso Petroleum

Even a temporary interference can be unreasonable if the interference is severe enough

Crown River Cruises Ltd. v Kimbolten Fireworks Ltd. (1996)

Malice

Considering if D was acting maliciously ie. he was trying to be a nuisance

Using ones land with bad intentions will be unreasonable use

- Christie v Davey (1893)

- Hollywood Silver Fox Farm v Emmett (1936)

Social benefit

If D's actions have some benefit

Reasonable use should consider how the use benefits the community at large

Miller v Jackson (1977)

Who can be sued

The occupier of the land can be sued for either creating a nuisance or adopting a nuisance from a previous owner, occupier or trespasser

Tetley v Chitty (1986)

The council had authorised the nuisance by authorising the land to be used for go-karting

An occupier of land who knows of a danger and allows it to happen/continue is liable, even if this danger was created by a trespasser

Sedleigh Denfeild v O' Callaghan (1940)

The person being interfered with must have propriety interest/legal right to the land

Hunter v Canary Wharf (1997)

Khorasandjian v Bush (1993)

C, a girl living at her parents house, could not sue due to not having legal rights to the land

Defences to privet nuisance

- Prescription

- Statutory authority

- Planning permission

Prescription

Where D has carried out the nuisance on C for 20 years, D has prescribed the right to continue this activity (has to be the same claimant affected for the 20 years)

Sturges v Bridgman (1879)

D can only be prescribed the right if his act has been a nuisance for 20 years

Statutory authority

Where a statute or other legal document gives D permission to carry out their act, this will stop them from being liable for this act

Planning permission

Can give permission to allow the defendant to try and change the locality to stop use being unreasonable

Gillingham Borough Council v Medway (Chatham) Dock (1993)

The locality of the area can change, so if planning permission made the residential area nor predominately commercial, then it will stop it being unreasonable use and D will not be liable

Wheeler v J J Saunders (1995)

Planning permission does not change the locality, just gives permission to D to try and do so.

Remedies to privet nuisance

- Injunction

- Damages

- Abatement

Injunction

Makes D stop doing the nuisance (completely or partially) or make D do something (e.g. sound proof building

Damages

Where D is made to pay C for the problems caused

Abatement

Letting C do something to prevent the nuisance, ie. letting D cut down branches from the tree

Main evaluation points

- No interference with recreational activities

- No defence of public benefit

- Damages can be hard to obtain

- Needing legal rights in land vs Human rights

- Strict liability could be unfair

- May worsen relationships between neighbours