private nuisance

PN definition

“unlawful (unreasonable) interference with a person's use or enjoyment of land”

2 types of PN

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

2. Physical damage- actual damage to Cs land

Hunter V Canary Wharf

• must have proprietary/legal interest in the land

• This includes owners/ tenants NOT family, friends or guests.

Focus of a nuisance-

• the focus is on the 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

Leakey V National Trust

defendant can also be liable where nuisance is result of natural and D is aware of nuisance but does nothing to alleviate it

Element 1- An unreasonable use of land

• 1.1 Locality factor- the character of the neighbourhood

  • LOA- Leeman V Montague

  • PD- St Helens Smelting

• 1.2 duration of nuisance- short duration can suffice if certain circumstances are present

  • LOA- De Keyeser Royal hotel

  • PD- Crown River Cruises

• 1.3 seriousness of interference- courts must balance the conflicting issues of C&D they must distinguish between the physical damage and inconvenience

  • physical damage will always be serious- an inconvenience must be extreme and excessive- compare to ordinary person

  • Leeman V Montague

• Sensitivity of claimant- would ordinary person would be affected, abnormal sensitivity is ignored.

  • Heath V Mayor of Brighton

• Motive and malice of D- deliberately harmful action

  • Christie V Davey

• Social benefit-

  • Miller V Jackson OIR

Element 2 -lead to an indirect interference

• It must be an indirect interference as a direct one would be considered trespass

• Leeman V Montague/ St Helens Smelting

Hunter V Canary Wharf

Recreational activities are NOT actionable

Defences

• Statutory authority- public body due to an act of parliament

  • Hammersmith city railway V Brand

• Planning permission- only a defence when it changes the character of the neighbourhood

  • Gillingham V Medway

  • Wheeler V Saunders- If the character of the neighbourhood doesn't change the nuisance may still be unreasonable

• Prescription- is tolerated for 20+ years the nuisance becomes lawful

• Not a defence to say C came to the nuisance

  • Lawrence V Fen Tigers

Remedies

• special/ general and remoteness test

  • Wagon Mound/ Hughes V lord Advocate

• Injunctions-

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

  • Kennaway V Thompson

• Abatement- C can take steps to alleviate nuisance

  • Lemmon V Webb