Chapter 23.1 - Private nuisance

What is the usual definition of private nuisance?

"An unlawful interference with a person's use or enjoyment of land or some right over, or in connection with it."

Who can claim under private nuisance?

Anyone who has the use of enjoyment of the land, and is affected by interference, may claim. The claimant must have an interest in the land.

Hunter v Canary Wharf 1997

Residents in Docklands complained of interference with TV reception when Canary Wharf was being built. The loss of recreational facility is not sufficient interference to give rise to an action in nuisance. Only those with an interest in the land, not members of families, have a right to bring an action in nuisance.

What amounts to a nuisance?

The claimant will have to show an unlawful interference with a person's use or enjoyment of land or some right over, or in connection with it." In most cases the interference will be because of an indirect interference and mere interference on its own is not enough. The claimant must prove the defendant's activity amounts to an 'unlawful' use of land. Unlawful here does not mean illegal but instead unreasonable.

What are some examples of activities that have been held to amount to private nuisance?

- Fumes drifting over neighbouring land

- Smell from farm animals

- Noise

- Vibrations from industrial machinery

- Hot air rising into other premises

- Oily smuts from chimneys

- Fire

- Cricket balls being hit into a garden

- Known risk of flooding

- Slippage of earth

What are some forms of interference that will not be protected?

- A view

- Light

- Television reception

What are the factors of reasonableness that the courts consider?

Malice - (Christie v Davey)

Sensitivity - (Robinson v Kilvert)

Locality - (Sturges v Bridgeman)

Duration - (Crown River Cruises)

Social Benefit - (Miller v Jackson)

What is meant by the duration?

To be actionable, the interference is likely to be continuous and at unreasonable hours of the day or night. In this was, regular, noisy, late night parties might amount to nuisance, but a noisy one off party to celebrate a special occasion might not.

Crown River Cruises Ltd v Kimbolton Fireworks Ltd 1996

A river barge was set alight by flammable debris, from a 20 minute firework display. Even a short term activity can amount to a nuisance.

What does Crown River Cruises show about the duration?

The fact that the interference is only temporary is not a sufficient reason to avoid a claim if it is unreasonable interference with the claimant's use or enjoyment of land.

What is meant by the sensitivity of the claimant?

If it can be shown the claimant is particularly sensitive, then the activity may not be private nuisance. The law on nuisance is moving away from the idea of 'abnormal sensitivity' to a general test of foreseeability, as seen in Network Rail v Morris.

Robinson v Kilvert 1889

Paper boxes were stored in hot and dry conditions which caused paper stored above them to dry out. If the claimant is unduly sensitive, a nuisance will not be found.

Network Rail v Morris 2004

New track circuits were installed next to a recording studio which interfered with the amplification of guitars. The use of amplified guitars was abnormally sensitive equipment and as the nuisance was not foreseeable, meaning the defendants were not liable.

What is meany by locality?

Nuisance is all about the use of land in the area where it is situated, so the character of the neighbourhood has to be considered. The court will consider whether the area:

- is purely residential

- is partly residential and partly commercial or industrial

- is situated in the town or country

- has changed in character of time

What is meant by malice?

A deliberately harmful act will normally be unreasonable behaviour and considered a nuisance.

Christie v Davey 1893

The D was annoyed by his neighbour's music and deliberately banged trays on the walls, blew whistles and shouted to disturb the neighbour. The D's deliberate and malicious behaviour amounted to a nuisance.

What is meant by social benefit?

If it is considered that the D is providing a benefit to the community, the court may consider the actions reasonable.

Miller v Jackson 1977

The claimants' use of their garden was disrupted by cricket balls being hit into hit into it from the adjoining recreation ground. The use of sports ground and its benefit to the community was balanced against the claimants' use of the garden. The community use outweighed the private use.

Who may be sued under private nuisance?

- The person who causes the nuisance, or their successors in title, who have allowed the nuisance to occur

- The person who is causing, or calling the nuisance can be sued

- Where the occupier is not responsible for creating the nuisance, they might still be liable as a result of adopting the nuisance - in other words, failing to deal with the problem

- A defendant can also be liable where the nuisance is the result of natural causes which they are aware of but fail to deal with

Does the person who is causing the nuisance need an interest in the land?

The defendant who is causing the nuisance does not have to have an interest in the land from which the nuisance is coming. This means that a short term tenant or a member of the neighbour's family can be liable.

Sedleigh-Denfield v O'Callaghan 1940

A pipe, laid by the local authority, but on the defendant's land, was blocked, flooding the neighbouring land. An occupier who knows of a danger and allows it to continue is liable in nuisance, even is s/he has not created the danger him/herself.

What are the defences available for private nuisance?

- Prescription

- Moving to the nuisance

- Statutory authority

- Consent

How is prescription a defence?

If the action has been carried out for at least twenty years, and there has been no complaint between the parties in that time, then the defendant have a prescription right to continue.

Sturges v Bridgeman 1879

A doctor built consulting rooms in his garden on the boundary to a sweet factory. He complained of vibrations from machinery. The defence of prescription failed as the nuisance began when the consulting room was built. The period before the building was erected did not count.

How is moving to the nuisance a defence?

The defendant may argue that the claimant is only suffering the nuisance as they have moved closer to the alleged problem, or moved into the area and that there was not issue previously. This does not amount to a defence.

How is statutory authority a defence?

As many of the activities that can amount to a nuisance are now regulated or licensed by environmental or other laws, statutory authority is one of the most effective remedies. Local authority planning permission can sometimes be a lawful justification for a nuisance. However, if the planning permission does not change the character of the neighbourhood, it will not operate as a defence.

Coventry v Lawrence 2014

Planning permission had been given for speedway and later for other motor sports. A claim of noise nuisance was made, limiting the use of the track. The Supreme Court decided the rule in Sturges v Bridgman about the character of neighbourhood still applies.

Allen v Gulf Oil Refining 1981

Residents near an oil refinery brought a nuisance as the defendants did not have express permission to operate it. The refinery have statutory authority to operate as this must have been parliament's intention.

How is consent a defence?

This may be a defence to a nuisance claim if there are active steps taken by the claimant encouraging the creation of the nuisance.

What are the remedies available for private nuisance?

- Injunctions

- Abatement

- Damages