Private Nuisance

What must the claimant have

an interest in the land (Hunter v canary wharf)

Defendant does not need an interest in the land but can either:

1. Cause the nuisance, or be the successor in title (ownership of land), who allow the nuisance– Brybook Barn Barn Garden Centre V Kent County Council

2. Causing or allowing the nuisance – Tetley V Chitty

3. Adopting a nuisance – failing to deal with the problem – Sedleigh Denfield V O’Callaghan

4. Failing to deal with natural risk – Leaky V National Trust

two types of nuisance

direct – Roots of a tree encroaching foundations

indirect –noise, smell or smoke etc.

nuisance definition

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

Mere annoyance is not enough

Factors considered by Court

• Duration – longer the nuisance + the time of day/year can affect it – Crown River Cruises Ltd V Kimbolton Fireworks Ltd.

• Sensitivity of claimant – If C is more sensitive D cannot be expected not to enjoy their land: ( Robinson V Kilvert); moving to ‘abnormal sensitivity’ (Network Rail Infrastructure V Morris)

• Locality – the location of the area affects what can be reasonably tolerated, different places, different expectations – Sturges V Bridgman

• Malice – deliberate harmful behaviour will normally be a nuisance (Hollywood Silver Fox Farm V Emmett).

• 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 nuisance claims

• Prescription – Nuisance arising for 20 years, with no complaint, a prescriptive right arises.( Coventry V Lawrence )

• Moving to the nuisance – Moving to a nuisance is not acceptance of it, see: Sturges V Bridgman

• Statutory Authority – Many nuisances regulated by statutes which provide defences – Allen V Gulf Oil Refining;

• Planning Permission – Local authority planning permission can act as a defence, but only if it explicitly changes the character of the area, (Wheeler V Saunders);

• Effect of Coventry V Lawerence: 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 (depends on use); Damages may be considered a more appropriate remedy – esp. advocated by Lord Sumption.

• Volenti – Can apply if there are active steps taken by C to encourage the nuisance.

Remedies

• Injunction – most common until Coventry V Lawrence. (Kennaway V Thompson); Injunctions can also be positive in nature,

• Abatement – The Courts provide authority for the claimant to prevent or reduce the nuisance (Lemmon V Webb).

Remedies (damages) Shelfer V City of London Electric Lighting Co

Original test: Shelfer V City of London Electric Lighting Co – damages should only be awarded when

1) The injury to the claimant’s 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.

Shelfer V City of London Electric Lighting Co 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 satisfied.