Private Nuisance Flashcards
(42 cards)
what are the two types of nuisance?
Private nuisance; and
Public Nuisance.
Define private nuisance.
Requires claimant to show:
1) there is interference with claimant’s use and enjoyment of land, or some rights they enjoy over it; and
2) that the interference is unlawful.
List the types of interference with land Hunter v Canary Wharf identified.
1) Nuisance by encroachment on a neighbour’s land;
2) Nuisance by direct physical injury to neighbours land; and
3) Nuisance by interference with a neighbour’s quiet enjoyment of his land.
What does an interference need to be to be potentially actionable?
Something materially interfering with ‘ordinary comfort’ not elegant or dainty modes of living.
Is disruption of TV signal caused by a new building an actionable interference?
No.
Is loss of a view from a home an actionable interference?
No.
What does unlawful mean for the purposes of an interference?
The interference must be substantial and unreasonable to be an unlawful interference.
This is not with regards to the reasonableness of the defendant’s conduct, but rather the reasonableness of their use of land, and whether it unreasonably interfered with C’s reasonable use of their own land.
What do the courts always find is unlawful interference without any further consideration?
Encroachment onto neighbouring land (eg overhanging tree branches.
What will the court attempt to do when determine whether an interference is unlawful?
Balance user’s right to enjoy their land with the neighbours right to enjoy theirs.
Explain the factor of duration and frequency a court will consider to determine whether interference is unreasonable.
Durations is important.
Some degree of continuity ad frequency will be required for interference to be unlawful.
A one off interference will only be actionable if arising from a containing state of affairs on d’s property.
Explain the excessiveness of conduct/ extent of harm factor.
Courts will assess how far removed from normal behaviour D’s conduct is. This is objective.
Also extent of harm is considered subjectively. If loud music is capable of a nuisance, but played whilst C it at work, this is unlikely to have sufficient impact to constitute harm.
Interference causing physical damage to C’s land will likely be considered excessive (unless damage is trivial).
Explain the character of neighbourhood factor.
Only a relevant factor where interference causes personal discomfort and inconvenience.
Some areas may have a higher threshold for tolerance than others (eg living in London you would expect more traffic disturbance).
Explain the public benefit factor.
Courts take view that public benefit should not deprive people of their private rights.
Public benefit therefore rarely a relevant factor.
Explain the malice factor.
If malice is apparent in the causing of the nuisance, this will often tip the balance in favour of the claimant.
Explain abnormal sensitivity.
Court’s ignore any abnormal sensitivity of c, and instead look at the normal user of the land.
Eg special type of paper being dried out by pipes in another part of a building would be irrelevant if normal paper would have been unaffected in the same circumstances.
Who can sue in nuisance?
Only a person with right to exclusive possession of land.
Someone staying at the property but who does not have a legal interest in it themselves will not be able to claim.
List the three potential defendant’s in a private nuisance claim.
1) creator of the nuisance;
2) occupier of the land from which the nuisance originates; or
3) landlord.
Explain liability in nuisance of an occupier of land.
May be liable for nuisances created where they have committed positive acts, or by omission (eg failing to repair a roof becoming dangerous).
Occupier may be liable for nuisances created by other people.
When is an occupier liable for nuisance created by others?
When nuisance is created:
1) By employee acting in course of their employment;
2) By independent contractor (provided nature of the work carried special danger of nuisance being created (eg risk of nuisance was inevitable due to the type of work being undertaken);
3) By visitor, predecessor in title, or trespasser, or arises through some natural occurrence, provided occupier adopted nuisance or continued it.
What is the general rule relating to landlords?
General rule is where nuisance arises on premises left to tenant, landlord Is not liable.
Explain when a D is liable for nuisance created by a trespasser.
They will be liable where:
1) Occupier has either adopted, or continued the nuisance.
2 Occupiers adopt a nuisance by making use of the thing constituting the nuisance; and
3) Occupiers continue the nuisance if, once they know or ought to have reasonably known of its existence, they fail to take reasonable steps to end the nuisance.
The same approach is used where nuisance was accreted by visitors or predecessors in title.
Give the exceptions where a landlord will be liable for nuisance on property let to tenant.
Where landlord has expressly or impliedly authorised the nuisance (ie inevitable results of the letting); or
Where landlord knew or ought to reasonably have known of it; or
Landlord covenanted to repair the premises, or has right to enter to do so, and in either case, fails to make repairs giving rise to the nuisance.
What is the rule in relation to damage?
C must prove they have suffered damage.
Explain causation and remoteness of damage in respect of private nuisance.
C must prove unlawful interference caused their damage.
Usual tests for causation apply (but for test and rules on intervening acts).
Usual test for remoteness applies (wagon mound).
