Private Nuisance

Who can claim in private nuisance?

A person can claim only if they have legal interest in the land which is more than just living there (Hunter V Canary Wharf)

Hunter V Canary Wharf

A person must have legal interest in the land not just live there in order to claim private nuisance

Who can be sued in private nuisance?

• Person causing or allowing the nuisance (Tetley V Chitty)

• Person who adopts the nuisance (O’calllaghan)

• Person who fails to deal with a natural risk (Leaky V National Trust)

Tetley V Chitty

Person causing or allowing the nuisance

O’callaghan

Person who adopts the nuisance - knows the nuisance exists and does nothing about it

Leaky V National Trust

Person who fails to deal with natural risks

What is private nuisance claim?

Claimant must show an unreasonable interference with their use and enjoyment of their land

• Established by asking whether it is reasonable for the claimant to tolerate the interference?

• Mere irritation is not enough

What factors are considered when decided if something is a nuisance?

• Duration

• Sensitivity of claimant

• Locality

• Malice

Duration

Duration and intensity of interference is considered (Crown River Cruises)

Sensitivity of claimant

If claimants use of land is abnormally sensitive, it is less likely to be a nuisance; This is because defendants use of their land should not be restricted by others specialised or sensitive activities (Robinson V Kilvert)

Locality

What constitutes a nuisance in one place will not be in another (Sturges V Bridgman)

Malice

Where a defendant deliberately choses an activity with the intention of it affecting the claimants enjoyment of their land (Hollywood Silver Fox Farms V Emmett); This counts even if D is responding to original nuisance from the claimant

Defences

• Prescription

• Statutory authority

• Volenti

Prescription

Provided there has been a known actionable nuisance for 20 years or more without complaints, then D gains prescriptive right to continue the nuisance ( Sturges V Bridgman); Timer only starts once the nuisance becomes actionable

Statutory authority

Permission granted in an act of parliament; this is a completed defence

Volenti

defendant can show that the claimant has taken active steps to encourage the nuisance

Moving to the nuisance

Courts will take into account the character of the area and establish whether the actions of the defendant are out or character for the area; Moving to the nuisance is not a defence meaning a newcomer can successfully bring in a nuisance claim

Remedies

• Injunctions

• Abatement

• Damages

Injunctions

Prohibitive = prevents the person from doing something

Positive = require the defendant to do something to limit the expense of the nuisance

Abatement

Courts provide authority for the claimant to prevent or reduce the nuisance (Lemmon V Webb)