Private Nuisance

Private nuisance

Private nuisance is an unlawful (indirect) interference with a person’s use or enjoyment of land (Winfield)

Who can sue

The claimant, a person who has a proprietary (legal) interest in the land, who is affected by the interference can claim (Hunter v Canary Wharf). This includes an owner, tenant or the spouse of an owner or tenant but not other family members

Who can be sued

The defendant, who crates the disturbance, organises or adopts the nuisance can be sued (Page Motors v Epsom & Ewell BC)

The unlawful interference must be indirect

The unlawful interference must be indirect, caused by noise, smells, fumes, etc

Bliss v Hall

Interference caused by smells and fumes

Halsey v Esso Petroleum

Interference through disturbing sleep with noise and vibrations, damage to clothes from acid smuts

Bone v Seale

Interference through smells from neighbours pig farm

Kennaway v Thompson

Interference through noise from power boats

Robinson v Kilvert

Interference through hot air rising into other premises

Spicer v Smee

Interference through fire

Hollywood Silver Fox Farm v Emmett

Interference through firing a gun on the boundary so foxes do not breed

The nuisance must cause physical damage or loss of enjoyment of land

St Helens Smelting, Halsey v Esso (in Hunter interference with TV reception caused by a tall building was NOT loss of enjoyment of land

The interference with the land must be reasonable

The court will balance a number of factors (location, seriousness, duration, sensitivity and malice if relevant)

Location

Whether the land is residential, countryside or industrial (rural or urban) must be considered. What may be a nuisance in a quiet village may not be so in or near an industrial area (Sturges v Bridgman)

Seriousness

The more serious an interference is the more likely it is to be a nuisance, is it excessive? The law requires an element of give and take on both parties (Walter v Selfe)

Duration

There must be a continuous interference over a period of time with the C’s use and enjoyment of land, the longer the activity lasts the more likely it is to be a nuisance.
In De Keyser’s Royal Hotel v Spicer Bros noisy pile driving at night during temporary building works was held to be a nuisance.
In Crown River Cruises v Kimbolton Fireworks a 20 minute firework display was held to be a nuisance as debris fell on C’s boat and damaged it

Sensitivity (if relevant)

Is the C being sensitive or is his property sensitive, abnormally sensitive Cs are unlikely to succeed
Robinson v Kilvert, C’s claim failed as ordinary paper would NOT have been damaged
McKinnon Industries v Walker, fumes from Ds factory damaged delicate orchids, there was a nuisance as flowers of ordinary sensitivity would have been damaged

Malice

Was D motivated by malice to annoy? This is evidence of unreasonable interference (Christie v Davey or Hollywood Silver Fox Farm v Emmett)

Defences: Prescription

The prescription defence may apply where Ds activity has been going on for more than 20 years without objection by C (Sturges v Bridgeman)

Defences: Statutory Authority

If the nuisance is created by a public body under the authority of a statute it may be authorised (Allen v Gulf Oil Refining)

Defences that will not succeed

Coming to the nuisance is not a defence (Miller v Jackson)
Having planning permission is not a defence (Coventry v Lawrence)
Public benefit of the nuisance is not a defence (Adams v Ursell)

Remedies: Injunctions

To obtain an injunction C must come with ‘clean hands’. A prohibitory injunction orders D not to do something, a mandatory injunction may require D to do something. A full injunction may require D to stop or limit certain activities at certain times of day.
Kennaway v Thompson, partial injunction limited number of races that could be held
Christie v Davey full prohibitory injunction prevented D’s actions completely

Where there is a public benefit to the nuisance damages may be awarded instead of an injunction