Nuisance

What is the definition of nuisance?

The unlawful interference with a person’s use or enjoyment of land 

Who can be a claimant?

Hunter v Canary Wharf - only people with a legal interest in the land can claim eg owners & tenants

Who can be a defendant?

• The creator of the nuisance or the occupier of the land

• Even if the occupier didn’t cause the nuisance they can be liable if they knew about it or allowed it to happen

Southport Corp v Esso

• Ds oil tanker in the estuary near Southport leaked oil onto nearby beaches

• D was liable for nuisance although they didn’t own the estuary

Tetley v Chitty

Owner of land was liable for nuisance as they allowed other people to use the land for go-karting

Interference

• Must be indirect

• Usually emanations like noise, dust, smells, vibrations

• Law of give & take acquired unless nuisance goes beyond what a reasonable person would consider normal 

What are the 5 key factors that courts look at?

• Locality

• Duration of nuisance

• Is D using the land in a common & ordinary way

• Malice & motive

• Abnormal sensitivity of C

1. Locality

• Important to look at if the nuisance is an emanation

• Certain activities in some areas would be reasonable but unreasonable in others eg a quiet residential area expects peace whereas industrial areas tolerate more

Sturges v Bridgeman

What is a nuisance in Belgravia Square (rich area) would not be considered a nuisance in Bermondsey (poor area)

Leeman v Montague

C lived in a residential area & was regularly disturbed by D’s 750 cockerels 90 metres away - was considered a nuisance

St Helens Smelting v Tipping

• Fumes from D’s smelting works damaged trees on C’s land 

• Held that if nuisance causes physical damage to land then locality is irrelevant - it would be a nuisance 

Murdoch v Glacier Metal Co Ltd

Noise from the factory wasn’t considered a nuisance as C lived next to a busy road anyway

2. Duration of nuisance 

• The longer the interference occurs, the more likely it would be considered a nuisance

• Frequency & intensity are considered 

Bolton v Stone

The cricket ball had only left 6 times in 30 years so wasn’t continuous (frequency)

De Keysers Royal Hotel v Spiers Bros

Building work was considered a nuisance as it lasted 24 hours a day & stopped C from sleeping despite the fact it was temporary (intensity)

3. Is the D using the land in a common & ordinary way?

• Must be common & ordinary

Bamford v Turnley

D wasn’t using land in a common & ordinary way when they were burning bricks in a kiln

Southwark v Tanner

Household sounds of cooking & cleaning weren’t considered a nuisance as they were common & ordinary uses of land 

4. Motive & malice of D

• Any bad intentions by D when carrying out interference will tip the scales in the C’s favour 

Christie v Davey

• When C gave music lessons from home, D responded by banging trays on the wall, shouting & blowing a whistle (motivation of malice)

Hollywood Silver Fox Farm v Emmett

D deliberately fired his shotgun in order to frighten the C’s pregnant fox which had a miscarriage (motivation of malice)

5. Abnormal sensitivity of C

• If C has an abnormal sensitivity then claim less likely to succeed as C must have a normal sensitivity 

Robinson v Kilvert

• D’s cellar at 80 degrees dried out the special paper that was stored on the floor above

• Wasn’t considered a nuisance as normal paper wouldn't have been affected so C had an abnormal sensitivity

What are the 3 defences?

• Statutory right

• Planning permission

• Prescription

Statutory right

• If D is acting under an Act of Parliament

• Only applies if the nuisance is an inevitable consequence - if not carried out properly & causes the nuisance then D may be liable

Hammersmith & City Railway v Brand

D had a statutory right to run trains along tracks adjoining C’s property so weren’t liable for vibrations as it was an inevitable consequence 

Metropolitan Asylum Hospital v Hill

D had a statutory right to build a small pox hospital but built it in the wrong place - couldn’t use defence

Planning permission

• May provide a defence if it effectively changes the character of the locality (eg from residential to industrial to help local economy)

Gillingham Council v Medway

• D had planning permission to develop commercial port which lead to heavy traffic

• Held that as PP had changed character of locality from residential to commercial then what could be a nuisance then is now considered reasonable

Prescription

• Applies if nuisance has occurred for 20 years in which it’ll become legal & C won’t be able to claim

• D can’t claim C has come to nuisance & must tolerate it if they move house knowing of the particular nuisance

Sturges v Bridgeman

• D had a sugar grinding machine that had been in use for 26 years

• C built a new surgery & found machine caused vibrations

• D couldn’t use defence despite using it for 26 years - the 20 years prescription only starts from the time the nuisance becomes apparent to the C

Remedies

• Injunctions (limit D’s activities) - may be full or partial (eg limit hours) & only given if of public interest

• Damages awarded if an injunction wouldn’t be of public interest

Miller v Jackson

C was awarded damages for the frequent cricket balls being hit into his garden as it wouldn’t have been of public interest to ban playing cricket

Kennaway v Thompson

D was given a partial injunction which limited the water sports on the lake 

Dennis v Minisitry of Defence

C was awarded damages as it wasn’t of public interest to prevent the RAF from flying planes & training pilots with an injunction

Abatement (unlikely to appear in exam other than multiple choice)

• Form of self help where the C is entitled to take steps to alleviate the nuisance eg trimming branches that overhang your garden

Lemmon v Web

C was free to cut off branches from his neighbour’s tree that overhung his garden & wasn’t required to give notice of his intention