Private nuisance

1- What is private nuisance?

Private Nuisance is a tort where someone’s use or enjoyment of their property is affected by the unreasonable behaviour of a neighbour.

2- What are the rules for private nuisance?

2 main types of private nuisance:

1- Loss of amenity- nuisance caused by noise, smell or smoke.

2- Material damage- nuisance when a dangerous state of affairs on the defendants land causes physical damage to the claimants land.

3- Who is the claimant for private nuisance?

The claimant must have an interest in the land= being an owner or tenant. Cannot be a member of the owners family.

4- Who is the defendant for private nuisance?

The person who is causing or allowing the nuisance can be sued. Even if the occupier is not responsible for creating the nuisance, they may still be liable for failing to deal with the problem - ‘adopting the nuisance’ - even if the nuisance was caused by a previous owner or trespasser. As seen in Sedleigh Denfield v O’Callaghan 1940.

Sedleigh Denfield v O’Callaghan 1940

Even if the occupier is not responsible for creating the nuisance, they may still be liable if they knew of the danger and allowed it to continue even if they did not create the danger, they failed to deal with the problem.

Leakey v National Trust 1980

Defendants can be liable if nuisance is a result of natural causes which they are aware of but fails to deal with.

5- What are the elements of private nuisance?

1- ‘Unlawful’- Claimant must prove the defendants activity amounts to an unlawful use of land. Not illegal but unreasonable.

• is it reasonable for the claimant to have to suffer the interference?

• Is the interference excessive?

Does not need to prove fault.

2- Indirect interference

Loss of amenity:

• fumes

• Smells- farm animals

• Noises- children’s playground, gunfire

Material damage:

• Vibrations from industrial machinery

• Fire

• Balls being hit into gardens

Hunter v Canary Wharf

Claimant cannot take action to protect a right to a view, the right to light or interference to a TV reception.

On the other hand, courts are prepared to?

Protect feelings of emotional distress- Laws v Florinplace 1981- Injunction when a shop in an area of shops, restaurants and some housing was converted into a sex shop.

6- What are the factors of reasonableness for private nuisance?

Courts will take into account factors to decide whether the use of land by the defendant is unreasonable:

1- Locality

2- Duration

3- Sensitivity

4- Malice

5- Social benefit

1- Locality

• Character of the neighbourhood

• Is the area just residential?

• Is it commercial or industrial?

• Is it in a town or countryside?

No case for this factor.

2- Duration

• Continuous and carried out at unreasonable hours of the day

• Noisy one off party- not nuisance, but if regular, may be nuisance.

• However, Crown River Cruises v Kimbolton Fireworks said an event lasting 20 mins was a nuisance.

Crown River Cruises Ltd v Kimbolton Fireworks Ltd

Short term display amounted to an actionable nuisance. (20 mins). Event lasting 20 mins was a nuisance.

De Keysers Royal Hotel v Spicer Bros 1914

Work considered as unreasonable as it interfered with claimants sleep.

3- Sensitivity of the claimant

If the claimant is sensitive, action may not be a nuisance.

Robinson v Kilvert 1889

If claimant is sensitive, action may not be a nuisance.

4- Malice

Deliberate harmful act + unreasonable = nuisance.

Hollywood Silver Fox Farm v Emmett 1936

Deliberate harmful act + unreasonable = amounted to nuisance

5- Social benefit

If considered the defendant is providing a benefit to the community, court may reconsider. Have to consider whether the benefit to the community outweighs the nuisance caused to the claimant.

Miller v Jackson

Cricket balls were being hit into claimants garden from an adjoining park. Cricket club tried to stop it by putting up high fences.

Court weighed up the use of the ground and benefit of sport to the community which outweighed the claim.

Social benefit- If considered the defendant is providing a benefit to the community, court may reconsider.

7- What are the defences to private nuisance?

1. Prescription 

2. Moving to the nuisance 

3. Statutory authority 

1- Prescription

May be used as a defence if the action has been carrying on for at least 20 years and there has been no complaint between parties in that time. If so, defendant may be said to have a prescriptive right to continue.

Prescription- Sturges v Bridgman 1879

Claimant was a doctor. Lived and worked next to defendants confectionary factory. Claimant built a consulting room in his garden and complained about vibrations of defendants machinery. Prescriptive right and factory had run for years without complaint. Court failed for defence as nuisance began when the consulting room was built.

2- Moving to the nuisance

Defendant may argue claimant is only suffering the nuisance as they have moved closer to the problem (Sturges v Bridgman) or moved into the area (Miller v Jackson).

This argument will not give a defence to the defendant.

3- Statutory authority

Many activities that can amount to public nuisance are now regulated or licensed by environmental or other laws.

Allen v Gulf Oil Refining 1981

Residents in area where D operated oil refinery. D had statutory authority to acquire site and build a refinery but not permission to operate it. HoL said that must have been Parliaments intentions when they gave permission for D to build a refinery.

Nuisance- inevitable consequence.

Defence of statutory authority succeeded.

Gillingham Borough Council v Medway Dock Co 1993

Local authority planning permission can act as lawful justification for a nuisance.

Planning permission given for dockyard to be used as a commercial port.

Access only available by residential roads= caused noise disturbance.

Character of neighbourhood had changed from the planning permission- what was previously a nuisance was now reasonable= no nuisance.

Wheeler v Saunders 1996

But, if planning permission does not change the character of the neighbourhood- not a defence.

Pig farmer granted planning permission to build more pig houses- 1 pig house= 400 pigs. One pig house was 11 metres from neighbours cottage. Neighbour took action in nuisance due to strong smells. Planning permission did not change character of neighbourhood= no defence.

8- Remedies

Most common- injunction.

Positive injunction- eg installing a filter to prevent the escape of smells.

Injunction could be linked to award of damages where a loss has occurred.

How to structure private nuisance answer?

1- Definition of Private Nuisance

2- Who is the claimant?

3- Who is the defendant?

4- Type of Nuisance

5- Elements of Private Nuisance

6- Factors of reasonableness

7- Defences

8- Remedies