private nuisance

Question 1

what is a private nuisance?

Answer 1

‘An unlawful interference for a substantial length of time with a person’s right to enjoy or use his and in a reasonable way’

Question 2

a claimant in an action for private nuisance must show that:

Answer 2

• He has the right to bring an action and that the person he is suing is capable of being the defendant (identify C and D’s)
• There is an interference in the form of either physical damage to the land or loss of amenity (convenience) in using the land;
• The interference is sufficiently serious – unreasonable - in all the circumstances to be unlawful.

Question 3

who is the claimant in private nuisance and what must they have to bring an action?

Answer 3

• a claimant must be someone with a legal interest in the affected land, such as an owner or a tenant.
• this rule was confirmed in Hunter v Canary Wharf - also held that it cannot include a member of the owner’s family

Question 4

Hunter v Canary Wharf

Answer 4

• the case was brought by a number of claimants who were complaining about things such as dust and interference with television reception caused by building works
• only those claimants with an interest in land, and not members of families, were able to bring a claim
• also held interference with television recepetion was not private nuisance

Question 5

who is the defendant in a case of private nuisance?

Answer 5

• creator of the nuisance
• also the occupier of the land if he adopts or continues the activities of the creator - sedleigh-denfield v o’callaghan
• also possible for a landlord to be liable for the activities of a tenant, if he authorised or approved those activities - tetley v chitty

Question 6

Sedleigh-Denfield v O’Callaghan

Answer 6

• A trespasser installed a pipe in a ditch on the defendant’s land
• the pipe became blocked and the subsequent flooding damaged the claimant’s land
• The defendant was liable, even though he had not installed the pipe, as he knew of its existence.

D can be occupier of land if he adopts or cont activities of creator

Question 7

Tetley v Chitty

Answer 7

A local council was liable for the noise and disturbances caused by a go-kart club, after the council had leased land to the club for the express purpose of developing a go-kart track

possible for landlord to be liable if authorised or approved activities

Question 8

interference - 2nd part of test

what are the two types?

Answer 8

a claim will only be brough in the tort of nuisance if the interference is indirect
* usually needs to be continuous

Claims in private nuisance cover two types;
* Physical damage to the land; and
* Loss of amenity (convenience) in using the land

Question 9

physical damage to land

Answer 9

E.g. to plants and crops (and goods stored on the land)
But does not allow the recovery of damages for personal injury (a claim in negligence is required).
Examples of physical damage include:

• Gases from a factory killing or damaging flowers;
• Oil smuts from a refinery covering washing pegged on a line or damaging paintwork;
• Water damage if a drain overflows; and
• Damage to foundations caused by vibrations from a generating plant.

The nuisance may also occur naturally if the defendant knows about it and does not take reasonable precautions

Holbeck Hall Hotel v Scarborough BC (2000)

Question 10

Holbeck Hall Hotel v Scarborough BC (2000)

Answer 10

• The claimant’s hotel was built on the council’s land, and it collapsed when there was a landslide.
• The council had not taken reasonable precautions to prevent the landslide but it was not held liable as the damage was not foreseeable.

Question 11

St Helen’s Smelting Co v Tippings

Answer 11

• C was the owner of a large country house with over a thousand acres of land. This land was close to a copper smelting factory which had long been in operation. The smelting factory discharged noxious gases as a result of its operation, which were considered to be a normal part of the smelting operation.
• As a result, trees on the claimant’s land were damaged by the fumes and noxious gases. The claimant sued in nuisance and won.

Question 12

Loss of amenity/enjoyment

Answer 12

• This is where there is no physical damage, but where the claimant’s ability to use or enjoy his land is restricted by the activities of the defendant.

Examples include;
* Excessive noise preventing the claimant from getting a good night’s sleep;
* Unpleasant smells and fumes preventing the claimant from opening his windows.

Question 13

can temporary nuisances still be considered continual?

Answer 13

yes - De Keyser’s Royal Hotel v Spicer Bros(1914)

Question 14

De Keyser’s Royal Hotel v Spicer Bros(1914)

Answer 14

• D’s were constructing a building nearby to the C’s hotel. Involved excavation of the foundations and pile-driving operations. The excavation work was carried on between 7:30pm and 6:40am, with pile-driving operations being carried on mostly during the daytime. However, on one occasion the pile-driving continued throughout the night. The claimant’s brought a claim in private nuisance alleging that the ongoing activity prevented guests from sleeping and from guests being able to hear the speaker after dinner.
• The claimants sought an injunction to prevent the work being carried out at these times and won - the works had continued throughout the evening for a matter of months and because they had been carried out at unreasonable times in the evening and through the night.

Question 15

3rd part of test - Unlawfulness (unreasonableness)

Answer 15

• The test that the courts use in deciding when this limit has been reached is whether the nuisance interferes with ordinary existence, in other words, whether the impact on the claimant is so unreasonable that he should not be expected to put up with it.
• To help the courts make a decision as to whether something has become unreasonable they will consider a number of factors.

Question 16

what factors will the court consider regarding unlawfulness (unreasonableness) of nuisance?

Answer 16

1) The sensitivity of the claimant

2) The locality of the events

3) The duration of the nuisance

4) The social utility of the defendant’s conduct

5) The motive behind the defendant’s activities – is there any malice?

Question 17

1) The sensitivity of the claimant

Answer 17

The claimant won’t succeed if they’re using the property for extra sensitive purposes

McKinnon v Walker, Robinson v Kilvert

Question 18

McKinnon v Walker

Answer 18

• McKinnon could claim for the full damage caused to delicate orchids by gas emitted from the defendant’s factory.
• The reason was that even normal flowers of ordinary sensitivity would have been affected

Question 19

Robinson v Kilvert

Answer 19

Paper boxes were stored in hot and dry conditions which caused paper stored above them to dry out. The heat from the basement would not have dried out normal paper, so there was no nuisance.

LP - If the claimant is unduly sensitive, a nuisance will not be found.

Question 20

2) The locality of the events

Answer 20

• The locality of the nuisance may affect the success of a claim.
• In Sturges v Bridgman (1879) the judge explained the importance of locality by stating ‘What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’.
• Belgrave Square - quiet residential area whereas Bermondsey - industrial area.

nuisance claim is more likely to be successful if theres dmg to property

Question 21

3) The duration of the nuisance

Answer 21

The courts are more likely to consider a nuisance unreasonable if it lasts for a long time or occurs during unsociable hours – the more often something happens, the more likely it is to be a nuisance.

Bolton v Stone (1951)

Question 22

Bolton v Stone (1951)

Answer 22

• C was injured when she was struck by a cricket ball outside her home.
• She brought an action against the cricket club in nuisance and negligence.
• The cricket field was surrounded by a 7 foot fence
• A witness who lived in the same road as the claimant but close to pitch said that five or six times during the last 30 years he had known balls hit his house or come into the yard. Two members of the Club, of over 30 years’ standing, agreed that the hit was altogether exceptional to anything previously seen on that ground.
• Held: No breach of duty. The likelihood of harm was low the defendant had taken all practical precautions in the circumstances. The cricket ground had been there for 90 years without injury and provided a useful service for the community.

Question 23

However, more recently these principles have been extended. A single event can amount to a nuisance as seen in…

Answer 23

Crown River Cruises v Kimbolton Fireworks (1996)

Question 24

Crown River Cruises v Kimbolton Fireworks (1996)

Question 25

4) The social utility of the defendant’s conduct

Answer 25

• The usefulness to society of the defendant’s conduct has a bearing on whether it is reasonable for the claimant to have to put up with it.
• Just because something is considered useful to society does not mean that a remedy is not available in nuisance

Dennis v MOD (2003)

Question 26

Dennis v MOD (2003)

Answer 26

• Mr Dennis lived in a large house in he country, but his peace was regularly destroyed by RAF training ets flying overhead.
• The court found that the noise did amount to a nuisance and awarded damages, but it was not prepared to grant an injunction as the flights were a necessary part of this country’s defence preparations.

Question 27

5) The motive behind the defendant’s activities – is there any malice?

Answer 27

If a nuisance is caused for malicious reasons, the claim is more likely to succeed. In these situations the Ds malice can make unlawful something that might not otherwise be a nuisance

Hollywood Silver Fox Farm v Emmett (1936) and Christie v Davey (1892)

Question 28

Hollywood Silver Fox Farm v Emmett (1936)

Answer 28

• The C farmed silver foxes.
• The D, as part of an ongoing feud, deliberately fired shotguns within the boundaries of his own land so as to startle the foxes and cause them to miscarry.
• In normal circumstances, firing a shotgun in the countryside would probably not amount to a nuisance, but the malicious motive on this case made it unlawful.

Question 29

Christie v Davey

Answer 29

• The D lived next-door to a house in which various people gave piano and singing lessons.
• To show his annoyance, he began to whistle, shriek and bang tin trays on the walls whenever a lesson was taking place.
• The court imposed an injunction against him because it was clear that his activities were done deliberately to disrupt and to upset.
• After careful consideration of evidence relating to number, length and timings of lesson, the judge also found that the original music-making was not a nuisance.

Question 30

Defences to an action in private nuisance

Answer 30

The main defences available for the tort of private nuisance are:
* Volenti (consent);
* Prescription;
* Statutory authority; and
* Other general defences include contributory negligence, act of a stranger, inevitable accident and act of God.

Question 31

Volenti (consent) – coming to the nuisance;

Sturgess v Bridgman (1879)

Answer 31

never succeeded
In Sturgess v Bridgman (1879) a doctor was able to bring an action for private nuisance when he built a consulting room in his garden on land adjacent to a confectioner. The noise from the confectioner’s machinery interfered with the doctor’s ability to see his patients, and it was no defence that the confectioner had been established first.

Question 32

Prescription (in nuisance)

Answer 32

The activity complained of must have been continuously carried out for at least 20 years. Throughout that time it must have been actionable as a private nuisance but nobody has in fact taken action.