2B.4.1 Private nuisance Flashcards
Private nuisance
Private nuisance is defined as “The unreasonable use of man of his land to the detriment of his neighbour” in the case of Miller v Jackson (1977).
In private nuisance is the interference direct or indirect?
In most cases the interference will be indirect, because any interference with use or enjoyment is likely to be caused by noise, smell or smoke. However, an action for nuisance by direct interference would be possible if, for example, the roots of trees encroached from one property into the neighbouring property, perhaps causing damage to foundations.
When is it deemed that private nuisance has occured?
When the behaviour on an individual’s own property, affects a neighbour’s ability to enjoy their land, and when this is deemed to be ‘unreasonable’, it amounts to nuisance.
What is reasonable depends on whether the interference caused by any form of action is sufficient to give rise to legal action.
The claimant
The claimant must have an interest in the land.
This will include being an owner or a tenant but not a member of the owner’s family (with the exception of spouse), such as a child or lodger – who has no legal interest in the property.
Case: Hunter v Canary Wharf
Hunter v Canary Wharf
The claimants were a number of people living in the Docklands area of East London when Canary Wharf was being built. They claimed that the building affected their television reception.
It was held:
* The interference with the television reception was not sufficient to amount to a private nuisance.
* Only those claimants with an interest in the land, and not members of families, were able to bring a claim.
The defendant
Who may be sued?
* The person who causes the nuisance who have allowed the nuisance to occur.
- The person who is causing, or allowing, the nuisance can be sued. For example, in the case of Tetley v Chitty (1986), a local authority which allowed go-kart racing on its land was held liable for a nuisance.
- Where the occupier is not responsible for creating the nuisance, they might still be liable as a result of ‘adopting the nuisance’ – in other words, failing to deal with the problem, even if it was caused by a previous owner or a trespasser. This was seen in the case of Sedleigh Denfield v O’Callaghan (1940).
- The occupier can be sued as long as they are aware of the nuisance on land under their control – as seen in Anthony v The Coal Authority (2005).
- The occupier can be sued, even if the nuisance occurred naturally but they didn’t take steps to prevent it. This was seen in the case of Leakey v National Trust (2005).
What amounts to a nuisance?
The claimant will have to show an unlawful interference with a person’s use or enjoyment of land or some right over, or in connection with it.
In most cases the interference will be because of an indirect interference.
Mere interference on its own is not enough for a claim. The claimant must prove that the defendant’s activity amounts to an ‘unlawful’ use of land.
‘Unlawful’ here does not mean illegal, but that the court accepts that the defendant’s use of the land is unreasonable in the way that it affects the claimant.
A variety of activities have been held to amount to private nuisance, including:
* Cricket balls (Miller v Jackson (1977))
* Noise (Coventry v Lawrence (2015))
* Known risk of flooding (Sedleigh-Denfield v O’Callaghan (1940))
* Slippage of earth (Leakley v National Trust (1980))
* Fire
* Smell
Unreasonable use of the land
The tort is about balancing competing interests of the claimant and the defendant. The court will take into account various factors to decide whether or not the use of neighbouring land is reasonable.
Five elements that the courts must consider
1) Character of neighbourhood
2) Sensitivity of the claimant
3) Duration of the nuisance
4) Public benefit
5) Malice of D
Character of neighbourhood
Nuisance relates to the use of land in the area where it is situated, so the character of the neighbourhood has to be considered. The court will consider whether the area:
- Is purely residential
- Is partly residential and partly commercial or industrial
- Is situated in the town or country
- Has changed in character over time
In the case of Sturges v Bridgman, the judge said “What is nuisance in Belgrave Square would not necessarily be nuisance in Bermondsey”.
This does not need to be considered if physical property damage is caused.
Sensitivity of the claimant
If it can be shown that the claimant is particularly sensitive, then the activity may not be a private nuisance. This was seen in the case of Robinson v Kilvert.
The law on nuisance is moving away now from the idea of ‘abnormal sensitivity’ to a general test of foreseeability, as shown in the case of Network Rail v Morris.
[Case - sensitivity of the claimant]
Network Rail v Morris (2004)
The claimant ran a recording studio near the main London to Brighton railway line. New track circuits were installed beside the railway which interfered with the amplification of electric guitars, causing the claimant to lose business.
Held: the use of amplified guitars was abnormally sensitive. As the nuisance was not foreseeable, the defendants were not liable for private nuisance.
[Case - sensitivity of the claimant]
Robinson v Kilvert (1889)
The claimant stored heat sensitive paper on the ground floor of a shared building, while the defendant stored paper boxes in the basement. The defendant needed the conditions to be hot and dry. The heat from the basement caused the paper to dry out and the C sued for the loss in value.
It was decided that the paper was particularly sensitive and the heat from the basement would not have dried out normal paper, so there was no nuisance.
Duration of the nuisance
To be actionable, the interference is likely to be continuous and at unreasonable hours of the day or night.
In this way, regular, noisy, late-night parties are likely to amount to a nuisance, but a one-off party to celebrate a special occasion might not. However the case of Crown River Cruises Ltd was an exception to this.
The fact that the interference is only temporary is not a sufficient reason to avoid a claim if it is an unreasonable interference with the claimant’s use or enjoyment of the land.
[Case - duration of nuisance]
Crown River Cruises Ltd (1996)
A river barge was set alight by flammable debris coming from a firework display lasting 20 mins. It was held that the display amounted to private nuisance.
