private nuisance

intro

• definition- “unlawful interference with a person's use or enjoyment of land”

• two types:

  1. Loss of amenity- smoke, noise, smells etc

  2. Physical damage- actual damage to Cs land

parties to an action

• must have proprietary/legal interest in the land

• This includes owners/ tenants NOT family/friends/guests

  • Hunter V Canary Wharf

Focus of a nuisance-

• reasonableness of the interference NOT whether D took reasonable care

• “the fact that the D has taken all reasonable care will not itself exonerate him”

  -Lord Goff in Cambridge water

natural nuisance

• D can be liable where nuisance is result of natural causes, when D is aware of it but does nothing to alleviate it

  • Leakey V National Trust

C must establish 3 elements

• An unreasonable use of land

• lead to an indirect interference

• with Cs use and/or enjoyment of land

element 1.1

• Locality factor

  • character of the neighbourhood decides if nuisance is reasonable for that type of area

    1. LOA- Leeman V Montague

    2. PD- St Helens Smelting

element 1.2

• duration of nuisance

  • more long lasting or more unreasonable hour = more likely unreasonable

  • short duration can suffice if certain circumstances are present

  • LOA- Dr Keyser Royal hotel

  • PD- Crown River Cruises

element 1.3

• seriousness of interference

  • courts must balance conflicting issues of C&D

  • must distinguish between PD and inconvenience

    • PD always be serious

    • an inconvenience must be extreme and excessive

      • compare to what an ordinary person would find

  • Leeman V Montague

element 1.4

• Sensitivity of claimant

  • would ordinary person would be affected

  • abnormal sensitivity is ignored

  • Heath V Mayor of Brighton

element 1.5

• Motive and malice of D

  • deliberately harmful action is more likely to be considered unreasonable

  • Christie V Davey

element 1.6

• Social benefit

  • if nuisance benefits wide community may be considered reasonable

  • Miller V Jackson

Element 2

• lead to an indirect interference

  • must be indirect as direct would be considered trespass

  • Leeman V Montague

  • St Helens Smelting

element 3

• Leeman/Montague

• St Helens Smelting

• Miller V Jackson

• recreational activities are not actionable

  • Hunter V Canary Wharf

special defences

• statutory authority-

  • will provide defence as a public body to an act of parliament

  • Hammersmith City Railway V Brand

• Planning permission

  • only defence when changes character of neighbourhood, making nuisance reasonable

    • Gillingham V Medway

  • If character of neighbourhood doesn’t change, nuisance still not reasonable

    • Wheeler V Saunders

• Prescription

  • tolerated for 20+ years, then becomes lawful

• Not a defence to say came to nuisance

  • Lawrence V Fen Tigers

special remedies

• injunctions

  • stop D from carrying out the nuisance

  • “injunctions can be tailored to meet the exact circumstances of the case”

  • Kennaway V Thompson

• Abatement

  • C can take steps to alleviate nuisance

  • Lemon V Webb