private nuisance

Introduction

Private nuisance is defined in Tate v gallery as a use of land which substantially interferes with the ordinary use and enjoyment of neighbouring land judged by standards of an ordinary person

Part 1 - Right to bring a claim

It must be established that she has a right to bring a claim. The claimant must have a legal interest in the land so claimant is usually a tenant or land owner but not a guest or employee.

This was seen in the case of Hunter the Canary wolf where an office tower was built which interfered with the TV reception the owners had a right to bring an action but not children and partners of the tenants as they did not have a legal Interest in the property

The defendant is the person who created the nuisance or allowed it to continue. This was seen in Tetley v chitty where local authorities allowed go cart racing so they were liable for noise and disturbance caused by the

D can also be reliable where the nuisance is a result of natural causes this was seen in k even though nuisance was a result of natural causes these were liable as they knew that a slipper might happen and they fail to prevent it

Part 2 - must be substantial interference

There must be substantial interference that relates to Cs use or enjoyment of the land through either physical damage or loss of amenity

Physical damage is for example damage to plants or crops from fumes or smoke and the case of Hasley v esso C successfully claimed against an oil company for damage for oil depot that had damaged his car

Loss of amenity is inconvenience which affects the ordinary comfort of human existence. There is no physical damage but ability to use or enjoy the land is affected by these activities like noise or vibrations.

In the case of bone v seals damages were awarded for the effect of smell is coming from pig farm

In the case of Williams v network rail the infestation of Japanese knotweed amounted to a loss of amenity and carried the risk of future physical damage

The interference must be indirect interference and C cannot claim for personal injury

Part 3 was the interference unlawful

Part A

For unlawful interference to be decided 1. It must be decided whether the act complained about was more than an ordinary use and occupation of the land.

If D is making more than a common and ordinary use of the land. This depends on the nature and legality of the area whether it is residential commercial or industrial or whether it is a town or a city.

Sturges v bridgeman white noise and vibrations from industrial equipment in a quiet residential area was a nuisance

Network rail v morris new railway tracks interfered with sensitive recording equipment used in Cs studio he could not claim for damage to his business as the interference was extraordinary and unforeseeable

Part 3 was the interference unlawful

Part B

for lawful interference to be decided was the act done with proper consideration for the interest of the neighbour

To decide whether the act was conveniently done the length and the degree of the nuisance has to be considered as well as the time of day

In bar v biffs waste storage of organic material in a land full sight was a nuisance as it leads to strong garbage smells over five yearsf

A deliberately harmful or malicious act is more likely to be considered unlawful, in the case of Christen v Davey she gave music lessons at home and D started banging on the walls and shouting in retaliation these actions were motivated by malice so it was a factor in deciding nuisance

No defence for using land in a way that is beneficial to the public.

It is no defence to a claim that D is using their lad reasonably or in a way that is beneficial to the public

Miller v Jackson cricket balls regularly landed on sea garden from a cricket ground nearby. The courts decided that the community use of land did not outweigh the private use of the garden.

Defences to private nuisance

Prescription is a defence if D has carried out the activity causing the nuisance for at least 20 years and C has been aware of this and not complaint C has a defence of a prescriptive right to carry out the activity. The defence begins from when C is affected by the nuisance, not just an activity that has been carried out for 20 years.

Sturges v Bridgeman C was a doctor he treated patients in house then built a consultancy room in his garden. He complained that the noise from these factory was too loud for his patients D claimed a prescriptive right as he has used the factory for over 20 years without complain but C won and D failed as the nuisance only began when the consultancy room was built

Statutory authority an action will fail if the nuisance is created by public body acting under statutory authority

Allen v gulf oil C could Sue in nuisance about noise and fumes from an oral refinery as the refinery was built under powered in an act of parliament

local authority planning permission does not count it must be in statue law

Remedies in private nuisance

Injunction, this is a court order prohibiting or controlling activity, in kenneway v Thompson a partial injunction was granted limiting the number of races that D could organise at a powerboat club

Damages are a more appropriate remedy especially if planning permission was granted there can be damages for physical damage like land ,plants buildings but not personal injury and there can also be damages for loss of amenity to reflect the reduction in value of land or business

An abatement is where the claimant has a right to take reasonable steps to deal with any nuisance himself

Conclusion