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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)
