Private Nuisance

Question 1

How does private nuisance arise?

Answer 1

Arises from an act or an omission carried out by D which substantively interfered with C’s established property rights.

Question 2

WHat does substantial interference mean?

Answer 2

more than the hustle and bustle of life.

Question 3

WHat types are there?

Answer 3

Interference…
By way of physical damage
Structural fault
With C’s legal interests
With Amenity

Question 4

Which case outlines the distinction between actual damage and interference with enjoyment?

Answer 4

St Helens Smelting v Tipping

Question 5

What is the takeaway from ST Helens v Tipping

Answer 5

do the facts reveal actual physical damage or are they suggesting that what is happening is the interference of use and enjoyment.

Question 6

what is the caveat to private nuisance

Answer 6

when proving actual physical damage, you have to prove it is a foreseeable damage.

Question 7

What are the preconditions to private nuisance?

Answer 7

Who can sue?
Who can be sued?
Requirement for substantial interference

Question 8

Who can sue?

Answer 8

someone who has a legal interest int he property.

Question 9

Explain how ‘who can sue’ was extended and then narrowed (with cases)?

Answer 9

Extended to substantial occupation in Khorasandijan v Bush.
Returned to previous rule in Hunter v Canary Wharf.

Question 10

Who can lawfully be sued?

Answer 10

Freehold owner – Arscott and Ors v The Coal Authority.

Person with a proprietary interest in an easement – Transco v Stockport.

A tenant – Hunter.

A landlord whose reversionary interests is transferred – Hunter.

A license with exclusive possession – Tinseltime v Eryl Roberts and others.

A person with exclusive possession to land, which is valid against all but the true owner – Foster v Washington.

A tolerated trespasser who, while remaining in the premises, has actual and exclusive possession – Pemberton v Southwark.

Question 11

Those who cannot lawfully sue?

Answer 11

Lodgers - Hunter
Children living with parents - Hunter
Worker who suffers interference at the workplace - Hunter
Spouses without property rights - Malone v Laskey
someone with only a contractual right - tate v Lyle
Mere trespasser/temporary occupier - Algrete Shipping v International Oil Pollution Compensation Fund.

Question 12

Who can be sued

Answer 12

Normally it is the party who creates, occupies or in more limited circumstances owns the land.

Question 13

Who can be sued when it is off land?

Answer 13

Contentious as to whether this is classed as a private nuisance and who is responsible.

Question 14

What is the adoption of a nuisance (and case)?

Answer 14

D must both continue nuisance and make use of nuisance for own benefit Sedleigh-Denfield v O’Callaghan

Question 15

What is the continuation of a nuisance (with case)?

Answer 15

D must know of nuisance but fail to bring it to an end when had reasonable means to do so – see Lippiatt v South Gloucestershire CC [2000].

Question 16

When is a landlord liable for a tenant’s nuisance (with case)?

Answer 16

Landlord actively participates in nuisance/authorises by conduct:

Hussain v Lancaster CC [2000] 2 WLR 1142

Question 17

what about vicarious liability?

Answer 17

An employer can become vicarious liability for a private nuisance created by an employee.

Question 18

What is the threshold of inconvenience principle?

Answer 18

Nuisance will only be found if there is a substantial interference. Actual damage is likely to be substantial. Interference of use and enjoyment must be proven to be substantial by the claimant.

Question 19

what are the elements of tort?

Answer 19

1. an interference with the use/enjoyment of C’s land.
2. Interference is unreasonable use of land
3. Must cause the damage and isn’t too remote.

Question 20

What is the standard for the fist element of tort?

Answer 20

objective standard:
Whether D’s act/omission interfered with C’s use and enjoyment of his land sufficient to constitute private nuisance is to be determined according to objective standard.

Question 21

what key case links to the first element of tort

Answer 21

Coventry v Lawrence

Question 22

Which activities cause nuisance?

Answer 22

Tangible: actual damage to property e.g. paint damage, cracks in buildings, damage to drains, encroachment from trees (most common example) etc.

Intangible: Odours, smells, fumes, noise, floodwater etc.

Question 23

Can private nuisance apply to the prevention of a natural feature reaching C’s land (with case)?

Answer 23

Rarely, but yes. in cases of privacy erosion.
E.g. Fearn v Board of Trustees of the Tate Gallery.

Question 24

Can private nuisance apply to one off situations (with case)?

Answer 24

it is an exception to the rule but yes.
Spicer v Smee.

Question 25

What is the reasoning behind the second element of tort?

Answer 25

Essence of private nuisance is ‘give and take’ balancing exercise between D’s right to make use of his property and C’s right to peaceful and enjoyable use of his land.

Question 26

What must the court consider int he second element of tort?

Answer 26

The competing interests of the claimant and defendant, and their rights to enjoy their land. Must look at duration, timing, level of interference.

Question 27

What must the reasonable user show?

Answer 27

that what they are doing is necessary for the common and ordinary use of the land. And it is conveniently done – with proper consideration of the interests of neighbouring occupier’s

Question 28

What are the balancing factors?

Answer 28

Character of neighbourhood Duration/intesity Public benenfit of D’s actions Presence of malice Effect of planning permission

Question 29

What principle outlines the third element of tort?

Answer 29

If its actual property damage, they must show a foreseeable causal link between D’s conduct and the damage to their property.

Question 30

What must be proven by C for the third element of tort?

Answer 30

Damage was foreseeable and compensable On the on balance of probabilities that but for interference the damage would not have occurred. If damage would have occurred anyway, causal link will fail. Interference need not be sole cause of damage but it must be ‘an effective and substantial cause Not too remote

Question 31

Which cases relate to who can be a defendant?

Answer 31

Southport v Esso Petroleum Jones v Llanwrst

Question 32

Which case relates to landlords and tenants?

Answer 32

Hussain v Lancaster CC

Question 33

Which case links to the incovenience principle?

Answer 33

Walter v Selfe

Question 34

Other cases linking to the objective standrad found in the first element of tort?

Answer 34

Hirose electrical v Peak ingredients Barr v Biffa waste services

Question 35

Which case had the opposite result to Coventry v Lawrence?

Answer 35

Gillingham v Medway Dock Company

Question 36

Extra case linking to interferences with natural features reaching C's land?

Answer 36

Regan v Paul proerties No.1