Private Nuisance

(Intro)

Private nuisance is an ‘indirect unlawful interference with a person’s use or enjoyment of land, or of some right over, or in connection with it’ (Winfield)

1. Who can sue?

Only someone with a proprietary interest in the land can sue (Hunter v Canary Wharf). Here…

2. Who can be sued

Anyone who creates, authorises or adopts the nuisance can be sued (Page Motors V Epsom & Ewell BC). Here …

3. The unlawful interference must be indirect

The unlawful interference must be indirect (as opposed to direct trespass). Here, the indirect interference is ____ and is similar to ______ (case)

4. The nuisance must cause either physical damage or loss of enjoyment

The nuisance must cause either physical damage as in St Helens Smelting where hedges and trees were damaged by acid rain from D’s smelting works or loss of enjoyment affecting C’s ability to use or enjoy his land, such as not being able to sleep in Hayley v Esso.

5. The interference with the land must be unreasonable

The unlawful interference has to be unreasonable (this is an objective test). The law requires ‘give and take’ and the court will balance a number of factors in considering reasonableness and the conflicting interests of neighbours. [LSD]

6. Locality

The location of the nuisance is a relevant factor. The character of a neighbourhood has to be considered as people are expected to put up with some level of noise, particularly in industrial areas.

(Sturges v Bridgeman - “what would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey)

(Leeman v Montague - successful injunction for sex shop in residential area)

7. Seriousness

Seriousness of the interference looks at how unreasonable was the disturbance. This relates to the idea of ‘give and take’ and what reasonable use of property is.

(Walter v Selfe - ‘materially interfering with the ordinary comfort of human existence’)

8. Duration

There must be a continuous interference over a period of time with the claimants use or enjoyment of land. The time of day is relevant.

(Spicer Bros - noisy pile driving at night was a nuisance, even if temporary)

(Crown River Cruises v Kimbolton Fireworks - one off fireworks display that led to physical damage was a nuisance)

9. Sensitivity

If it can be shown the claimant or the claimant’s property is particularly sensitive, then the nuisance claim may fail. The standard of tolerance is that of the ‘normal neighbour’.

(Robinson v Kilvert - ordinary paper would not have been damaged)

(McKinnon Industries v walker - ordinary flowers would have been damaged)

10. Utility

If the activity is providing employment or another social benefit to the area, it may be considered reasonable.

(Harrison v Southwark Water Co - building work at reasonable times of day was not a nuisance as it was useful to have new houses built)

(Adams v Ursel - Popular fish and chips shop was nuisance in residential area)

11. Malice

A deliberately harmful act will normally be unreasonable behaviour and considered a nuisance

(Christie v Davey - D deliberately annoyed neighbour to interrupt music lessons)

(Hollywood Silver Fox Farm v Emmett - fired gun to scare off silver foxes during breeding time)

12. Defences

Two defences which may succeed are statutory authority (Allen v Gulf Oil refining) and prescription (Sturges v Bridgeman).

13. Statutory Authority if relevant

Means that the nuisance is created by a public body under the authority of the statute. (Allen v Gulf Oil Refining)

14. prescription if relevant

if a claimant tolerates D’s activites for more than 20 years and there had been no complaints, then D is seen to have a prescriptive right to continue (Sturges v Bridgman)

15. Defences that will not succeed (summarise)

Coming to the nuisance - Miller v Jackson

Planning permission does not mean activity is lawful - Coventry v Lawrence

Public benefit - Bellow v Cement Co Ltd

16. Remedies

Damages - compensate C for damage to land/plants/goods or loss in value of lands. Not possible for personal injury.

Injunction - granted at the court’s discretion. Must come with ‘clean hands’. Prohibitory = require D to not do something. Mandatory = required to do something.

Partial injunction (Kennaway v Thompson)

Full injunction (Christie v Davey)

Social utility may award damages but not injunction (Miller v Jackson)