Private Nuisance

Question 1

Private nuisance plan

Answer 1

Private nuisance protects the occupier’s rights to reasonable use and quiet enjoyment of their land against D’s unreasonable use of land which causes interference (balancing conflicting rights)
- C must have legal interest in the land (can be presumed through ownership) - Hunter v Canary Wharf
- D must be creator of nuisance or authorized it

Interference can be noise, smells, flooding, physical damage, encroachment… - Barr v Biffa

Reasonableness of use of land/interference depends on:
1) Nature of locality/neighborhood
- Character of the area, eg industrial vs residential - Sturges v Bridgman
- Planning permission may change the locality’s nature but doesn’t authorize nuisance - Coventry v Lawrence
- Physical damage to property = locality principle has no relevance - St Helen’s Smelting Co v Tipping

2) Duration
- Continuous or repeated interference is more likely nuisance, but short-term disturbances can still count - De Keyser’s Royal Hotel v Spicer Bros

3) Sensitivity
- If the C/their use of land is abnormally sensitive, D isn’t liable unless the activity would be nuisance to a reasonable person using the land in a normal manner - Robinson v Kilvert

4) Malice
- Malicious acts by D make interference more likely unreasonable - Hollywood Silver Fox Farm v Emmett

5) Social utility
- D may argue their activity legitimately benefits the public, reducing unreasonableness - Kennaway v Thompson

Foreseeability of the type of damage caused is also important in deciding liability

Defences:
1) Ordinary use of land - Southwark London Borough Council v Mills (noise was merely ordinary)
2) Statutory authority
- public authorities acting under this (eg road works to improve water mains) - as long as nuisance doesn’t exceed what was authorized - Allen v Gulf Oil Refining Ltd
3) Act of God/nuisance arising naturally
- complete defence - event happens independently of any human action - Nicholls v Marsland (heavy rain causing flood)
- however, once occupier becomes aware of the nuisance and fails to remedy it within reasonable time, they may be liable for damage - Goldman v Hargrave
4) Prescription
- rarely succeeds - if the D can prove they’ve been doing it for 20 yrs and C has been aware but done nothing about it (D has acquired prescriptive right to commit the nuisance)
- 20 yrs doesn’t start until C becomes aware - Sturges v Bridgman

Question 2

Hunter v Canary Wharf

Answer 2

Proprietary interest

Claim failed as many C’s had no proprietary interest in the land

Question 3

St Helen’s Smelting Co v Tipping

Answer 3

Locality

Damage was caused by smelting works to crops, trees and foliage

Question 4

Coventry v Lawrence

Answer 4

Planning permission

Planning permission didn’t mean the noisy motorcycles were lawful nor stop it from being a nuisance

Question 5

Hollywood Silver Fox Farm v Emmett

Answer 5

Malice

Despite the abnormal sensitivity of the foxes, D was liable as he was motivated by malice

Question 6

Sturges v Bridgman

Answer 6

Locality

Thesiger LJ: ‘what would be a nuisance in Belgrade Square would not necessarily be so in Bermondsey’ - more disturbance is considered reasonable in industrial area than residential

Question 7

Robinson v Kilvert

Answer 7

Sensitivity

D not liable as they acted reasonably, damage was due to the special sensitivity of the paper

Question 8

De Keyser’s Royal Hotel v Spicer Bros

Answer 8

Duration

Although the noisy night-time construction was temporary, it was nuisance as it disrupted hotel guests’ sleep

Question 9

Kennaway v Thompson

Answer 9

Social utility

The noise from the boat racing was unreasonable interference, despite the public benefit. Remedies were balanced and court granted a partial injunction to limit the event (not stop)

Question 10

Barr v Biffa

Answer 10

Interference

Intermittent, offensive smells can substantially interfere with C’s quiet enjoyment

Question 11

Allen v Gulf Oil Refining Ltd

Answer 11

Defence - statutory authority

No liability as the smell was an inevitable consequence of activity authorized by statute

Question 12

Goldman v Hargrave

Answer 12

Defence - act of god

Although the danger was naturally occurring, D was liable as he was aware of the danger and failed to act within reasonable prudence to remove the hazard

Question 13

Sturges v Bridgman

Answer 13

Defence - prescription

Although the confectioner had used the noisy machine for over 20 years, it only became a nuisance when the doctor built his consulting room next door, defence failed