Nuisance

Question 1

What does the law of tort provide

Answer 1

The possibility of a claim if this action continues beyond what is reasonable
This would be a nuisance

Question 2

Whats an example of an unreasonable behaviour

Answer 2

Loud parties every week

Question 3

What are the two types of nuisance

Answer 3

1. Public nuisance
2. Private nuisance

Question 4

What is public nuisance

Answer 4

It arises from an act that endangers the life, health, morals or comfort of the public

Question 5

What is private nuisance

Answer 5

Caused by someone doing something on their own land which they are lawfully entitled to do but that becomes a nuisance

Question 6

Is nuisance a criminal or civil issue

Answer 6

It can be both as statute has made some nuisances a criminal offence.

Question 7

When does private nuisance apply

Answer 7

It applies where only one person is affected by the use of land in the locality

Question 8

What did Fearne v Tate Gallery define nuisance as

Answer 8

‘A use of land which wrongfully interferes with the ordinary use and enjoyment of land’

Question 9

What are examples of indirect interference

Answer 9

A smoke, smell or noise

Question 10

What are examples of direct interference

Answer 10

Encroachment on a neighbour’s land. Physical injury to the land such as an overhanging branch

Question 11

The claimant

Answer 11

The claimant must have an interest in the land e.g. owner or tenant
Members of the owners family cannot claim if they don’t have an ‘interest’. However, if the owner was affected too, they could claim on the family members behalf

Question 12

Hunter v Canary Wharf

Answer 12

Facts: the claimants sought a remedy for the loss of TV reception due to new buildings
Held: the HoLs decided that was not an unlawful nuisance

Question 13

The defendant:

Answer 13

D is the person who is causing or allowing the nuisance
It can be an occupier (leaky v national trust)
They cannot have an interest in the land

Question 14

Leaky v National Trust

Answer 14

Facts: D’s owned land where there was a large natural mound on a hillside that slipped, damaging the claimant’s cottage
Held: Ds were liable as they knew that a slippage might happen and failed to prevent it

Question 15

What is the question for the courts

Answer 15

The question for the courts is whether it is reasonable for C to have to suffer the particular interference

Question 16

Hunter v Canary Wharf

Answer 16

Facts: the claimants sought a remedy for the loss of TV reception due to new buildings
Held: the HoLs decided that this was not an unlawful nuisance

Question 17

Fearn and Others v Tate Gallery

Answer 17

Facts: residents of the flats opposite the Tate attempted to claim when a ‘viewing tower’ had been built meaning pictures were being taken with the residents houses in the background
Held: the SC held this was a nuisance.

Question 18

What will the judge have to decide if the nuisance isnt ‘prima facie’

Answer 18

The courts will have to establish reasonableness

Question 19

What does ‘prima facie’ mean

Answer 19

It is an obvious nuisance on first glance such as physical damage

Question 20

What factors will the courts look at when establishing reasonableness

Answer 20

1. Locality
2. Duration of the interference
3. Sensitivity of the claimant
4. Malice

Question 21

1. Locality

Answer 21

• the character of the neighbourhood will be considered to establish whether the nuisance is ‘reasonable’
• the courts will consider whether the area has changed over time.
• Changes can be said to be unreasonable

Question 22

Kennaway v Thompson

Answer 22

Facts: D was a member of a boat club. C moved into a house near the lake but the boat club events increased over time
Held: the C was successful in a nuisance of noise due to the locality of the area

Question 23

2. Duration of the interference

Answer 23

In order for it to be unreasonable, the interference usually needs to be continuous and at unreasonable times of the day

Question 24

Crown River Cruises Ltd v Kimbolton Fireworks Ltd

Answer 24

Held: a firework display was held to be a nuisance

Question 25

3. Sensitivity of the claimant

Answer 25

- It is not reasonable for D to be liable if C is particularly sensitive - the courts will now look at the foreseeability of the interference

Question 26

Network Rail Infrastructure v Morris

Answer 26

Facts: the C ran a recording studio near a railway line. The track circuits interfered with the electric guitar amps, causing him to lose business Held: the CoA decided that interference from a new track circuit with nearby sensitive guitar equipment was not foreseeable so the D’s were not liable

Question 27

Malice

Answer 27

A deliberately harmful act will normally be considered unreasonable behaviour

Question 28

Hollywood Silver Fox Form v Emmett

Answer 28

Facts: D had a disagreement with the C so told his son to shoot his guns near the C’s property so his mink would not breed Held: shooting a gun near the minx was a deliberate act and therefore it is unreasonable, its a nuisance

Question 29

What are the 4 defences

Answer 29

1. Prescription 2. Consent (volenti non fit injuria) 3. Statutory Authority 4. Planning Permission

Question 30

1. Perscription

Answer 30

If the action has been carried on for at least 20 years and there has been no complaint between the same parties in that time, then D may have a prescriptive right to continue

Question 31

Sturges v Bridgman

Answer 31

Facts: the claimant had built a consulting room in his garden and then complained of nuisance due to the vibrations from the nearby factory. The defendant argued he had a prescriptive right to continue as he had been using the factory for over 20 years with no complaint. Held: the defence failed as the nuisance only began when the room was built

Question 32

Consent (volenti non fit injuria):

Answer 32

Consent is a full defence. If the claimant is found to have consented to the nuisance, there is no liability on the part of the defendant and the claimant will not receive any damages

Question 33

Statutory authority:

Answer 33

this is likely to be one of the most effective defences as many of the activities that could be a nuisance are now licensed by environmental laws. So by passing the law Parliament has essentially allowed that nuisance to happen as in Allen v Gulf Oil Refining.

Question 34

Planning permission

Answer 34

local authority planning permission cannot be an absolute defence and it is no more than evidence. However if the character of the neighbourhood does change following the permission this could lead to the nuisance being considered as reasonable.

Question 35

Gillingham Borough Council v Medway Dock Co

Answer 35

Facts: planning permission was given for a commercial port where the only access was by residential roads. Held: The courts decided there was no actionable nuisance because the granting of the planning permission had changed the character of the neighbourhood

Question 36

What are the 2 not defences

Answer 36

1. Moving to the nuisance 2. Social benefit

Question 37

Moving to the nuisance

Answer 37

the defendant may argue that the claimant is only suffering the nuisance as they have moved closer to the alleged problem, this is not a defence

Question 38

Social benefit

Answer 38

once a nuisance is established, defendants may argue that an activity which provides a public benefit should be exempt from a claim in nuisance. However it has been ruled that public benefit is not a defence

Question 39

Miller v Jackson

Answer 39

Facts: the claimant complained that their use of their garden was disrupted by cricket balls being hit into it. Held: The court recognised that cricket balls coming on to the land where a nuisance, however they they were not prepared to grant an injunction since it was not in the public interest to do so. However it may be a consideration when deciding appropriate remedies.

Question 40

What are the 3 remedies

Answer 40

1. Injuction 2. Abatement 3. Damages

Question 41

Injuction

Answer 41

injunctions are generally prohibitory, ordering the D to stop causing the nuisance. Or it could be positive in nature which is where the defendant has to take action to do something about the nuisance including installing sound proof

Question 42

Abatement

Answer 42

where the claimant is allowed to enter the defendants property to remove the nuisance. In Goldman v Hargrave Lord Willberforce added that the defendants conduct should be judged in the light of his or her resources and ability to act

Question 43

Damages

Answer 43

in Conventry v Lawrence the supreme court commented that an injunction should not be automatically be ordered in a nuisance case and that damages should may be considered more widely than in the past as an appropriate remedy.

Question 44

What are pecuniary losses

Answer 44

Easy to quantify like time off work Payed for by special damages

Question 45

What are non-pecuniary losses

Answer 45

Not easy to quantify such as pyschological harm General damages