Private Nuisance

Private nuisance

• This only concerns people who live close to each other

• Deals with competing interests that need to be balanced in relation to rights to do what you want on your land

• You can do what you want until it becomes unreasonable to interfere with your neighbours rights to enjoy their land.

Winfield and Jolowicz defined private nuisance as…

‘an unlawful indirect interference with a person’s use or enjoyment of land or some right over, or in connection with’

Two types of private nuisance

1. Loss of amenity (enjoyment of land)

2. Material damage

1. Who can sue?

• the basic rule is that anyone who uses or enjoys the land may claim and is affected by an interference.

• The claimants must have an interest in the land- includes owners/ tenants, but not their family members, visitors/ lodgers

Hunter v Canary Wharf (1998)

Claimants were a number of people who lived near canary wharf (690 claimants in total). They claimed they had lost their tv reception due to the building of Canary Wharf tower. The majority of them were disclaimed on the basis that they did not have an interest in the land.

2. Who can be sued?

• The person causing the nuisance or the person allowing the nuisance (occupier)

• You can also sue the owner who may not have caused the nuisance, but had allowed it to continue.

Sedleigh Denfield v O’Callaghan (1940)

Ds land was a ditch in which a tresspasser (the council) laid an ill placed pipe grating design to keep out leaves. An accumulation of leaves, due to a thunderstorm, blocked the pipe and flooded D’s land. For nearly 3 years d’s servant would unblock and clean the pipe. D was liable despite not laying the pipe. (he was aware of the issue)

Leakey v National Trust (1980)

The claimants property was damaged due to a falling mound of soil and debris onto her house. A defendants is liable for a naturally occurring hazard on the land if they are aware of the danger and failed to act.

3. The elements of private nuisance- Winfield and Jolowicz

a) An unlawful unreasonable use of land

b) Leading to an indirect interference

c) Wit the claimant’s use or enjoyment of the land

a) An indirect interference with the enjoyment of the land

This will be either; Physical damage or loss of amenity/ enjoyment.

This must be caused indirectly.

Tree roots- Davey v Harrow Corporation (1958)

Noise- Christie v Davey and Hollywood Silver Fox Farm v Emmett (1936)

Smells- Wheeler v Saunders (1955)

Vibrations- Sturges V Bridgman (1879)

b) The interference must be unreasonable

The interference must go beyond the bounds of acceptable behaviour (objective test). The court will consider 5 factors:

Sensitivity: D is not liable for damage which occurs solely because C or C’s situation is abnormally sensitive (Robinson V Kilvert)

Locality: Where the nuisance takes place will have an important bearing on the claim (Sturges v Bridgman) (‘What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’)

Duration: The longer the nuisance goes on the more likely it will be considered unreasonable (Spicer v Smee), but it need not last long (Crown River Cruise Ltd v Kimbolton Fireworks Ltd)

Malice: This means with bad motive. (Hollywood Silver Fox Farm v Emmett (1936))

Social benefit: If it is considered that the D is providing a benefit to the community, the court may consider the actions reasonable (Miller v Jackson)

In applying these factors, the courts must balance the rights of the landowners to use his land as he pleases and the right of a neighbour not to have his use and enjoyment interfered with.

c) The unreasonable interference must cause damage to the claimant

‘But For’ Test- Barnett

The reasonably foreseeable test (WagonMound)

Defences

Statutory authority- Any complaint arising out of legislation or planning permission, may be allowable.

Prescription- If the nuisance has continued for 20 years without complaint, the right to complain will lapse.

Remedies

Injunction- Stopping them from committing the nuisance

Damages- Common when businesses are involved

Abatement- This gives a temp. right of access to the neighbours property, in order ti fix what is wrong and causing the nuisance.