Law- Private Nuisance

What is private nuisance ?

Behaviour on your land effects neighbours ability to enjoy their land when the use is termed unreasonable

What does reasonableness depend on ?

Whether the interface caused by that action is sufficient

Who can claim ?

Claimant must have an interest in the land (own,rent)

What case highlights who can claim?

Hunter v Canary Wharf

Who can not claim ?

Someone living on land - has to be a legal interest

Who can have liability for private nuisance ?

Successor in title (ownership of land)

Causing or allowing the nuisance

Adopting the nuisance (knowing the nuisance is there but choosing to do nothing about it)

Failing to deal with a natural risk

What’s the case for successor in title ?

Bybrook barns garden centre v Kent county council

What’s the case for causing or allowing the nuisance ?

Tetley v Chitty

What’s the case for adopting the nuisance ?

Sedleigh Denfield v O’Callaghan

What’s the case for failing to deal with a natural risk ?

Leaky v national trust

What does the defendant not need ?

An interest in the land

What is an indirect nuisance?

Things like smoke,smell,noise

What are the balancing factors to nuisance ?

Duration

Sensitivity

Locality

Malice

Social/community benefit

What is the case for duration ?

Crown river cruises Ltd v Kimbolton Fireworks ltd

What is duration?

Longer the interference the more likely it is to be a nuisance

What if the interference is particularly bad ?

A shorter duration will amount to a nuisance

What is the case for sensitivity of the claimant ?

Network Rail Infastructure v Morris

What is sensitivity of the claimant ?

Where claimants use of land is more sensitive than others, defendant can be expected to lose rights to their land

What’s the case for localty ?

Coventry v Lawrence

What is locality ?

Location of the area will be affected by what can be expected to be tolerated

What is more significant than if the interference is in an industrial area ?

If it is a residential area

How is locality worked out ?

By asking: if the defendants nuisance was not there, would adding it to the area become a nuisance ? If so, it’s more likely to be a nuisance. If not, its less likely to be considered as what constitutes a nuisance in one place will not in another other

Whats the case that shows this test ?

Sturges v Bridgeman

What is the case for malice ?

Hollywood Silver Fox Farm v Emmett

What is malice ?

Where defendant deliberately causes an interference to affect the claimant use or enjoyment of land this will usually be a nuisance

What case shows that if you respond to a nuisance with a nuisance it can still be malice ?

Christie v Davey

Whats the case for social/community benefit ?

Miller v Jackson

What is social benefit ?

The greater the benefit to the community as a whole the less likely the interference will be a nuisance

How difficult is it to prove ?

Very unless you can show considerable community benefit

What case shows the the effect of planning permission ?

Coventry v Lawrence

Does planning permission prevent something from being a nuisance ?

No

Who is common law of nuisance reserved to?

The courts rather than the relevant planning authority

How may planning permission be relevant in assisting the claimants actions ?

Where planning permission stipulates limits as to frequency and intensify of noise

What can the courts do to planning permission?

Take it into account but are willing to ignore it

What are some cases where planning permission was ignored ?

Wheeler v Saunders

Watson v Croft promo-sport

What are the defences ?

Prescription

Moving to the nuisance

Statutory authority

Volenti

What is prescription ?

Nuisance arriving for 20 years with no complaints a prescriptive right arises (the right for the defendant to do the thing)

When does the 20 year period start?

When potential nuisance arises (Sturges v Bridgeman)

What is needed for a prescription to apply ?

The nuisance must have been actionable for the past 20 years (Coventry v Lawrence )

What is moving to the nuisance ?

Claimant moves to a nuisance it remains a nuisance even though the claimant moved there

What case shows moving to a nuisance ?

Coventry v Lawrence

What is statutory authority ?

Whwre a statutory right exists, it will operate as a defence

How will the right be interpreted ?

Widely

Whats the case that shows statutory authority ?

Allen v Gulf Oil Refining

What is volenti ?

Defendant can use this where a claimant takes active steps to encourage the nuisance

What are the three remedies

Injunctions

Abatement

Damages

What are injunctions ?

Most sought remedy

What can injunctions be ?

Partial or full

What is prohibitive injunctions ?

Preventing someone from doing something

What is the case for prohibitive injunctions ?

Kennaway v Thompson

What is positive injunction ?

Do something to prevent or reduce the nuisance, limit the extent of nuisance

What is an abatement ?

Courts provide authority for the claimants to prevent or reduce the nuisance

Whats the case for abatement ?

Lemmon v Webb

What is an example for abatement ?

If branches kept falling into a garden the court may provide the remedy of abatement for claimant to throw them back

What is the case for injury to claimant ?

Shelfer v City of London Electric Lighting Co

What is injury to claimant capable of ?

Bring estimated in money

What can the claimant be compensated in ?

Small amount of money

What would it be unfair on the defendant ?

To grant an injunction

Injunctions are usually an appropriate remedy unless what is satisfied ?

Shelfer test

How should you not apply the Shelfer test ?

Rigidly

Where the shelter test is met what doesn’t it prevent the court from doing ?

Granting an injunction

What will also be considered ?

Public interest

What may influence the court to award damages rather than injunctions ?

Planning permission

What was Lord Suption clear about?

Damages will often be considered the more appropriate remedy

What do the courts do following this guidance ?

Award fewer junctions and be prepared to award damages instead

Where statute outlines only remedies what may not be possible to claim ?

Nuisance (Martin v Thames Water PLC)