Private Nuisance Page 57-68

What is private nuisance + Case

Defined in Fearn V Tate Gallery as the use of land that substantially interferes with the ordinary use and enjoyment of neighbouring lands and is judged by the standard of an ordinary person

Claimant on right to bring action

A claimant who is usually a landowner or tenant excluding guest or employees will have a right to brig an action if they have a legal interest in the land and have been affected by the interference

Case for claimant right to bring an action

Hunter V Canary Wharf - where the owners and tenants of the area had a right to bring an action as they had a legal interest in the property because the tower that was built interfered with the tv reception however, their relatives did not have a right as they had no legal interest in the property.

Who is the defendant

A defendant may be the creator of the nuisance or a person who allowed it to happen

Case for defendant right to bring action

Tetley V chitty where the landowners were liable for the noise disturbance created by the tenants who were go karting as they had allowed it to continue

What can also make a person liable for a nusiance + case

A person can be liable for a nuisance that he did not create, if he “adopts” the activity in question e.g Sedleigh Denfield V O’Callaghan where D was liable when C’s land was flooded because he had allowed the danger to continue.

Can natural causes be a nuisance + case

D can also be liable where the nuisance is a result of natural causes provided d was aware of the nuisance and failed to deal with it e.g. Leakey v national trust where Ds were liable as they knew that a slippage might happen and they failed to prevent it.

Interference explained

There must be a substantial interference either physical damage or loss of amenity

Physical damage explained

Physical damage e.g damage to plants or crops generally regarded as unlawful

Case for physical damage

Halsey V Esso - Physical damage was acid smuts that damaged his car

What is loss of amenity

A non physical damage that affects the claimants ability to use or enjoy his or her land

Case for loss of amenity

Bone V seal - the smells emanating from a pig farm

What key points must be satisfied for it to be an interference

• The interference must relate to C’s use or enjoyment of land.

• The interference must be indirect,

• C cannot claim for personal injuries.

Unlawful interference defined

There will be no action in nuisance if

1. D is making no more than an ordinary use of land and

2. If the activity is done conveniently, with proper consideration for the interest of neighbours

What amounts to an ordinary use of land?

What amounts to an ordinary use of land depends on the character of locality

Case for ordinary use of land

Sturges V Bridgman - Where the noise and vibrations of industrial equipment was a nuisance in a quiet residential area.

What is not relevant and why + case

C’s special sensitivity is irrelevant, the damage has to be foreseeable e.g. network rail v morris where the railway tracks interference was unforeseeable

How is the convenience of an act determined

In order to determine whether an act has been done conveniently the duration , extent and malice of it must be considered

Case for convenience of an act ( Duration)

Barr v Biffa waste - where strong smell emanating from landfill site for over 5 years was a nuisance

What does it say about physical damage + case

A nuisance can arise from a single act and most likely to be the case where there is physical damage e.g. Crown River Cruises Kimbolton Fireworks where burning debris set fire to a barge

What does it say about actions motivated by malice + case

A deliberate harmful or malicious act by D is more likely to be considered unlawful e.g. christie v Davey where D started banging on the walls, beating trays and shouting in retaliation to C who was teaching music lessons

What does it say about social utility + case

Social utility is not a relevant factor for determining whether there is a nuisance but it May affect the remedy granted, e.g. Miller v Jackson where court refused to grant injunction against cricket club but instead awarded damages.

2 Defences to private nuisance

Prescription and statutory authority

What is prescription+ case

Prescription is a defence in which D’s activity has been causing a nuisance for 20 or more years without complaint e.g. Sturges v Bridgman where prescription failed as the nuisance only began when the consulting room was built.

When does the 20 year period begin + case

The 20 year period will begin when D’s activity begins to interfere with C e.g. Coventry V Lawerence

What is there no defence for

There is no defence for coming to the nuisance e.g. Miller V Jackson where the house was built next to cricket pitch

What is the defence of statutory authority

Where the act will fail if the nuisance is created by a public body acting under statutory authoirty e.g Allen V Gulf Oil where the oil refinery was built under powers in an act of parliament

More on statutory authority + case

Planning permission does not mean no nuisance

Could be relevant to more than ordinary use if it has changed character of neighbourhood (Done case by cases basis)

(Gillingham BC v Medway where renovation of dock to industrial dock meant area no longer regarded a residential area so could not complain)

What other defences +case

Consent + Act of God however if D is aware and fails to remedy the nuisance in a reasonable time then they may adopt the nuisance e.g. Sedleigh denfield

Remedie of Injunction

This is where the act may be prohibited or controlled to its defined limits e.g Kennaway V Thompson Where a partial injunction was made to control the number of races .

Remedy of damage

Where planning permission has taken place or there is public benefit to the activity damage could be a much better remedy than injunction and this can be awarded through physical damage , loss of amenity and punitive damage if it is with malice.

Remedy of abatement

Where D has the right do deal with the nuisance themselves.