Private Nuisance

Private Nuisance

Definition (AO1)

“The unlawful interference with another person’s use or enjoyment of land in which they have an interest”.

• This is a land based tort

• Common law tort

• Based on principle of reciprocity between neighbours - Balance conflicting interests of the parties right to “use their land as they wish” and the right to “quiet enjoyment of their land”.

• Not based on negligence and so is a strict liability tort - Not fault based

Private Nuisance - Key Elements

Structure (AO2)

1. Valid Claimant and Valid defendant

2. Unlawful interference

3. Damage

Interferences that are capable of amounting to an actionable nuisance

Examples (AO2)

• Nuisance from flooding

• Nuisance in the form of smells

• Encroachment by tree branches or roots

• Nuisance noise

• Cricket Balls

A nuisance can relate to physical damage to the land and/or loss of amenity (reduction in enjoyment)

Interferences that are not capable of amounting to an actionable nuisance

Examples (AO2)

• Interference with television reception (Hunter v Canary Wharf)

• Interference with a view - Due to idea that environment constantly changes

Not every interference with land can be classed as a nuisance - Only those which are classed as unlawful

1. Valid Claimants

Rule (AO1)

In order to bring a claim in private nuisance, a C must have a legal interest in the land and, in general this means a right to exclusive possession

Valid Claimants

Examples (AO2)

• An owner of a house

• A tenant of a house

Invalid Claimants

Examples (AO2)

• A member of the owner’s family

• A temporary visitor

• A hotel guest

Valid Claimants

Case (AO3)

(Hunter v Canary Wharf)

TV reception case

1. Valid Defendants

Rule (AO1)

• The D is the party who is causing or allowing to cause the nuisance.

• D does not need to have a legal interest in the land.

• D will be liable for nuisances they have created whether by positive acts or by failing to take steps e.g. failing to repair a roof that becomes dangerous

• D may be an owner, occupier or another “creator” of the nuisance.

• The current occupier is the usual defendant, but the original creator of the nuisance can still be liable even where the land is later occupied by others

• Landlords will be liable for nuisances caused by their tenants.

May D be liable for the acts of a Third party / Trespasser or on the basis of continuing / Adopting a state of affairs

Rule (AO1)

An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance, even if naturally occurring and when the occupier didn’t know about it. - Objective Test

Occupiers will “continue” a nuisance where they knew or should have known of it and so are liable.

Nuisance based on trespasser

Case (AO3)

(Sedleigh-Denfield v O’Callaghan)

Trespassers (Council) had laid a pipe on D’s land designed to divert flood water. Following previous less-serious incidents, the pipe was blocked as no effective grating to keep out rubbish had been installed. C’s land was flooded

D was liable as he knew of the pipe’s existence and the problems with it

Nuisance based on naturally occurring event

Case (AO3)

(Leakey v National Trust)

Build up of land on a neighboring property created a land slippage onto next-door property causing damage.

D held liable on the basis they knew or ought to have known of this land build up and did nothing to prevent it.

2. Unlawful Interference - Key Elements

Structure (AO2)

1. Was there a substantial interference with the ordinary use/enjoyment of neighbouring land?

2. Was there a non-ordinary use of land by D

Unlawful Interference - Key Elements

Case (AO3)

(Fearn & Others v Trustees of Tate Gallery) - C’s were successful

C’s were leaseholders in a modern block of flats adjacent to the Tate Modern Gallery. Their complaint stemmed from the addition to the Tate of a viewing gallery that allowed 360^o view of central London. This included the interior of the residents’ glass-walled flats.

Visitors often took photos of the interior of the flats and uploaded them to social media.

The SC held that:

• Overlooking was capable of being a nuisance

• The test for unreasonableness is no longer relevant

• Key test is that of ordinary use so that any nuisance must interfere with the claimant’s ordinary use & enjoyment of the C’s property

• Must be an interference which an ordinary person would regard as substantial

• There is no claim if the D is doing more than making a common & ordinary use of their own land.

• No requirement for C’s to put up curtains to prevent / minimise the nuisance

Was there a substantial interference with the ordinary use/enjoyment of neighbouring land?

Rule (AO1)

Courts are not concerned with any minor annoyances created between neighbours, so any interference must be substantial.

Interference

Definition (AO1)

• Physical Damage to C’s land

• Loss of Amenity - Loss of the use or enjoyment of the land

Interference - Physical Damage to C’s land

Case (AO3)

(Malone v Laskey)

Interference - Loss of Amenity - Loss of the use or enjoyment of the land

Case (AO3)

(Wheeler v JJ Saunders) - Smell

(Kennaway v Thompson) - Noise

Was there a substantial interference with the ordinary use/enjoyment of neighbouring land?

Factors (AO2)

• Frequency & Duration (Degree of interference)

• Claimant Sensitivity

• Malice and Motive

Substantial interference with the ordinary use/enjoyment of neighbouring land? - Factors - Frequency & Duration

Rule (AO1)

Frequency & Times at which e.g. noise occurs; how long the noise has been complained about; Intensity/level of noise

A one off or temporary act is not generally enough to amount to a nuisance

Where the damage is physical, then small interferences will be unlawful.

If C claims loss of enjoyment then interference must materially interfere with ordinary existence.

Substantial interference with the ordinary use/enjoyment of neighbouring land? - Factors - Frequency & Duration

Case (AO3)

(Spicer v Smee) - One-off nuisance being sufficient

Fire broke out on D’s property cause by faulty wiring, which had been a continual problem and concern for local residents which the landlord failed to respond to. Fire spread to neighbouring property owned by C who succeeded in a nuisance claim.

(De Keyser’s Royal Hotel v Spicer Bros) - Temporary being sufficient

Injunction was granted to prevent building work taking place at night despite the fact that the work was only temporary in nature.

(Murdoch v Glacier Metal) - No interferrence with ordinary existence

C was being kept awake at night by a constant low level droning noise from D’s factory.

Held no nuisance as there was a considerable amount of noise from nearby road and no one else had complained.

Substantial interference with the ordinary use/enjoyment of neighbouring land? - Factors - Claimant Sensitivity

Rule (AO1)

The interference must be substantial to ordinary people so if the C is particularly sensitive or carries out an activity which is unusually sensitive, they are likely to find no nuisance has been committed and this will often defeat a claim for nuisance.

However, if the impact would be substantial to a reasonable person, Cs are not expected to take steps to minimise its impact on them. - i.e. Putting up curtains

D will also be liable for full extent of loss, even if full extent is due to extra-sensitive nature of C’s use.

E.g. A person who is overly sensitive and able to hear high pitched noises compared to the average person who does not hear them is unlikely to succeed on this issue alone.

Was there a substantial interference with the ordinary use/enjoyment of neighbouring land? - Factors - Claimant Sensitivity

Case (AO3)

(Network Rail v Morris)

Rail company (D) installed signaling which interfered electromagnetically with the C’s nearby recording studio

Held that there was no nuisance as C’s use of their land was unusually sensitive and no one else on the street complained.

Was there a substantial interference with the ordinary use/enjoyment of neighbouring land? - Factors - Malice and motive

Rule (AO1)

Malice or a bad motive can have the effect of making what would otherwise be an ordinary use of land and therefore not a nuisance into an unlawful activity and therefore a nuisance, provided in has a substantial impact on C

Malice can make an injunction more likely to be awarded.

Was there a substantial interference with the ordinary use/enjoyment of neighbouring land? - Factors - Malice and motive

Case (AO3)

(Christie v Davey)

C was a music teach who gave private lessons in her home. D who was a neighbour, complained on many occasions but to no avail. D then took to banging on the walls and beating trays in retaliation.

Held that D’s actions were motivated by spite and therefore did constitute a nuisance. An injunction was granted to restrain his actions.

Was there a non-ordinary use of land by D

Rule (AO1)

This is decided by reference to the character of the locality (local area)

Therefore, the character of the neighbourhood and the type of area i.e. a residential, rural or industrial area will be considered differently.

Was there a non-ordinary use of land by D

Case (AO1)

(Halsey v Esso Petroleum)

D owned an oil depot. Oil tankers were constantly coming and going at all hours of the day and night.

This was a nuisance as the depot was located in the middle of a housing estate and was interfering with the sleep of residents

Was there a non-ordinary use of land by D - Physical Damage

Case (AO3)

(St Helens Smelting v Tipping)

Claimant owned a manor house with 1300 acres of land a short distance from D’s copper smelting business. The smelting generated a very unpleasant vapour which affected people as well as plants in the grounds.

D argued that there were several industrial businesses in the locality including alkali works. Along with the fact that the smelting works existed before C purchased the property.

Held that where there is physical damage to property, the locality principle has no relevance. It is also no defence that C came to the nuisance and so D was liable.

Causation of Damage

Rule (AO1)

Foreseeability of harm is necessary to the recovery of damages in private nuisance.

Same test for remoteness of damage applied in Negligence (Wagon Mound), is required for Nuisance claims.

Court must decide whether the kind of damage which occurred was reasonable foreseeable to someone in the D’s position at the time the relevant acts were done.

Causation of Damage

Case (AO3)

(Cambridge Water Co v Eastern Counties Leather)