Private nuisance

Private Nuisance

An unlawful interference with a person’s right to use and enjoy their land. A defendant may be strictly liable for nuisance even if they took reasonable steps to avoid it (Rapier v London Tramways Co [1893]).

Two types:

1. Physical damage to the claimant’s property (e.g., flooding or noxious fumes)

2. Substantial interference with enjoyment of land (e.g., noise, light, or vibration)

Hunter v Canary Wharf

The claimants, who lived near the construction of a 250-meter tall skyscraper, alleged that the building blocked their TV signal. The House of Lords held that those without proprietary interests in land (e.g., mere licensees) cannot bring a private nuisance claim.

Fearn v Board of Trustees of Tate Gallery [2023]

Claimants, who owned flats with exterior glass walls, brought a claim against the Tate Gallery due their viewing platform offering an unimpeded view into their flats.

The Court of Appeal found the gallery liable, emphasizing that visual intrusion can amount to a substantial interference with enjoyment of land.

Affirms Bamford v Turnley - protection from visual intrusions.

St Helen’s Smelting v Tipping

Lord Westbury made the distinguished that the character of the neighbourhood is only relevant where the plaintiff claimed that his enjoyment of the land has been interfered not for material damage.

Balancing Interests

A balancing test weighing the occupier’s right to use their land against their neighbour's right to enjoyment.

Kennaway v Thompson - “Nearly all of us living in these islands have to put up with a certain amount of annoyance from our neighbours..” Lawton LJ

Nature of Locality

What is typical or expected in the area? For example, industrial activities in industrial zones are less likely to be considered a nuisance than the same activities in residential areas (St. Helen’s Smelting Co v Tipping).

Sturges v Bridgman - “What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.” per Thesiger LJ.  

Duration

Cunard v Antifyre, Talbot J - “Private nuisances...are interferences for a substantial length of time...” 

De Keyser’s v Spicer Bros - imposed an injunction.

Crown River Cruises v Kimbolton - involved physical damage so was more likely to award a reward. 

Bolton v Stone [1950] - isolated cricket balls straying beyond the boundary was not nuisance.  

Sensitivity

C must show interference with ordinary use; abnormally sensitive uses fail (Robinson v Kilvert). If ordinary items would also be harmed, claim succeeds (McKinnon Industries).

Recreational activity sensitivity

Interference with recreational activities generally not actionable (Bridlington Relay), though modern tech may challenge this (Soundstar Studio obiter).

Malice 

Malicious acts converting otherwise lawful use into nuisance (Christie v Davey; Hollywood Silver Fox Farm). Legitimate use is not malicious (Bradford v Pickles).

Who can sue in private nuisance?

Only those with proprietary interest (owners/tenants) (Hunter v Canary Wharf). Licences insufficient (Malone v Laskey). Some exceptions (e.g., tolerated trespasser in Pemberton).

where can an occupier be sued?

C may sue the occupier where the occupier:  

1. exercises control over the creator of the nuisance –  Matania v Provincial Bank

2. in control or possession of the property  - Cocking v Eacott

3. adopts or continues a trespasser’s nuisance  - Sedleigh-Denfield

4. adopts or continues a nuisance created by an act of nature. - Goldman v Hargrave

5. Creator is the occupier’s predecessor in title - St. Anne’s v Roberts

Statutory authority defence

Complete defence where statute authorises nuisance (Allen v Gulf Oil). If D could act without nuisance, defence fails (Metropolitan Asylum District v Hill).

20‑year prescription defence

Requires 20 years of actionable nuisance against C’s land (Sturges v Bridgman). Objections reset the clock (Coventry v Lawrence).

Ineffective : coming to the nuisance

Not a defence that C moved to the nuisance (Bliss v Hall).

ineffective - Jus Tertii  

it is not possible to argue where a defendant has better title to the land in question and therefore should be sued instead.  (Nicholls v Ely Beet Sugar)

Ineffective : due to many

Lambton v Mellish [1894]  - merry ground case. There’s no defence that the defendant was one of many who contributed to the nuisance.  

Ineffective : utility

Social value irrelevant if nuisance exists (Adams v Ursell; Fearn v Tate).

Remedies in nuisance

Injunctions (discretionary; Shelfer criteria now flexible per Coventry), damages, and rare abatement (Lemmon v Webb).