Private nuisance

Define private nuisance (PN) - “unlawful (unreasonable)

interference with a person's use or enjoyment of land”

2. 2 types of PN-

1. Loss of amenity- smoke, noise, smells etc

2. Physical damage- actual damage to Cs land

Apply- which nuisance is present in the scenario?

3. Parties to an action- D & C must have proprietary interest in

the land

Hunter V Canary Wharf

This includes owners/ tenants NOT family, friends or guests.

Apply- who is involved in the question & what legal rights do

they have?

4. Focus of a nuisance- the focus is on the reasonableness of the

interference NOT whether D took reasonable care “the fact that

the D has taken all reasonable care will not itself exonerate

him”

Lord Goff in Cambridge water

O.I.R- defendant can also be liable where nuisance is result

of natural and D is aware of nuisance but does nothing to

alleviate it

Leakey V National Trust

Apply- has D done anything to alleviate/ combat nuisance?

5. C must establish 3 elements of PN to be successful in their

claim

○ 1.1 ● Element 1- An unreasonable use of land

Locality factor- the character of the neighbourhood

has to be considered to decide if the nuisance is

reasonable for that type of area

LOA- Leeman V montague

PD- St Helens Smelting

Apply- is the nuisance reasonable for that neighbourhood?

○ 1.2 duration of nuisance- the more long lasting or the

more unreasonable the hour the more likely it will be

considered unreasonable however a short duration can

suffice if certain circumstances are present

LOA- De Keyeser Royal hotel

PD- Crown River Cruises

Apply- how long and at what time of day was the nuisance

occurring?

○ 1.3 seriousness of interference- courts must balance the

conflicting issues of C&D they must distinguish between

the physical damage and inconvenience physical damage

will always be serious an inconvenience must be extreme

and excessive

Leeman V montague

Apply- is the interference serious or something an

ordinary person would deal with?

○ O.I.R

- Sensitivity of claimant- only applicable if an

ordinary person would be affected abnormal

sensitivity is ignored.

Heath V Mayor of Brighton OIR

Apply- is there anything that makes C unusually

sensitive?

○ O.I.R

- Motive and malice of D- deliberately harmful action

by D is more likely to be considered unreasonable

Christie V Davey OIR

Apply- what has D done in retaliation

○ O.I.R

- Social benefit- if D’s actions benefit wider

community they may be deemed as reasonable and

therefore not a nuisance.

Miller V Jackson OIR

Apply- what benefit is D providing

6. Element 2 -lead to an indirect interference. It must be an

indirect interference as a direct one would be considered

trespass

Leeman V Montague/ St Helens Smelting

Apply- what type of interference is it? What exactly is the

nuisance?

7. Element 3 -indirect interference with C’s use and/or enjoyment

of land

Leeman V Montague/ St Helens Smelting/ Miller V Jackson

Apply- how has it affected C?

● O.I.R

- Recreational activities are NOT actionable

Hunter V Canary Wharf

Apply- what can’t C claim for? (hobbies, activities

etc)

8. Conclusion- is the Defendant liable or not?

9. Defences

● Statutory authority- will provide D with a defence as a

public body due to an act of parliament

Hammersmith city railway V Brand

● Planning permission- only a defence when it changes the

character of the neighbourhood making the nuisance

reasonable

Gillingham V Medway

If the character of the neighbourhood doesn't change the

nuisance may still be unreasonable

Wheeler V Saunders

● Prescription- id tolerated for 20+ years the nuisance

becomes lawful

● Not a defence to say C came to the nuisance

Lawrence V Fen Tigers

10. Remedies

- damages - special/ general and remoteness test

Wagon Mound/ Hughes V lord Advocate

- Injunctions- stop D from carrying out nuisance

“injunctions can be tailored to meet the exact

circumstances of the case”

Kennaway V Thompson

- Abatement- C can take steps to alleviate nuisance

Lemmon V Webb