Private Nuisance Flashcards
(34 cards)
What is private nuisance?
An unlawful interference for a substantial length of time with a person’s right to enjoy or use his land in a reasonable way and is actionable in tort
What 3 things must an action for private nuisance show? (fully written out)
- They have the right to bring an action and that the person he is suing is capable of being the D
- There is an indirect interference in the form of either physical damage to the land or loss of amenity in using the land
- The interference is sufficiently serious in all the circumstances to be unlawful
In simple terms what 3 things must the claimant show for a private nuisance claim?
- A valid C and D
- Interference
- The interference was unlawful
Who is a claimant in a claim for private nuisance and what case confirmed this?
A claimant must be someone with a legal interest in the affected land, such as an owner or tenant: Hunter v Canary Wharf
Why is the law so strict about who the claimant is?
PN is a tort relating to interference with land and the possible impact that it might have on the value of the land, and therefore the proper claimant is the person that might suffer a financial loss. If the law protected people other than owners, it might be very difficult for someone who is creating a nuisance to reach an out of court settlement with all the various interested parties
Who is a defendant in a private nuisance claim?
- The usual creator of the nuisance
- A person may not create the nuisance but ‘adopt’ or continue the activities of the creator: Sedleigh-Denfield v O’Callaghan
- A landlord to be liable for the activities of a tenant, if he authorised or approved those activities
What is meant by interference in a private nuisance claim? Give examples:
It must be indirect. It will usually be continuous rather than a one-off occurrence:
- Smoke (bonfires)
- Noise (continuous loud music)
- Smell (BBQ every night in a built up housing estate)
What are the types of interference?
- Physical damage to the land
- Loss of amenity in using the land
What are examples of physical damage to the land and what cases show these?
- Gases from a factory killing or damaging trees/flowers: St Helens Smelting v Tipping
- Oil smuts from a refinery covering washing pegged on a line or paint work : Hasley v Esso
- Water damage if drain overflows: Sedleigh Denfield v O’Callaghen
- Damage to foundations caused by vibrations from a generating plant
What are example of loss of amenity and what cases show these?
- Excessive noise preventing the C from getting a good nights sleep: Kennaway v Thompson
- Unpleasant smells and fumes preventing the C from opening their windows: Wheeler v Saunders
- Being overlooked: Fearn and others v Board of Trustees of the Tate Gallery
What is meant by unlawfulness (unreasonableness) in private nuisance?
There’s a limit beyond which activities become unlawful. The test that the courts use in deciding when this limit has been reached is whether the impact on the C is so unreasonable that he shouldn’t be expected to put up with it
What factors will the court take into account when deciding the unlawfulness of a nuisance?
- Sensitivity of C
- Locality of events
- Duration of nuisance
- Social utility of D’s conduct
- Motive behind D’s activities (malice)
What case demonstrates the sensitivity of the claimant as a factor of unreasonableness?
McKinnon v Walker
What case demonstrates the locality of events as a factor of unreasonableness?
St Helens Smelting v Tipping
What cases demonstrates the duration os the nuisance as a factor of unreasonableness?
Bolton v Stone
Crown River Cruises v Kimbolton Fireworks
What case demonstrates the social utility of the D’s actions as a factor of unreasonableness?
Dennis v MOD
What cases demonstrates the motive behind the D’s actions as a factor of unreasonableness?
Hollywood silver fox farm v Emmett
Christie v Davey
What is meant by sensitivity of the claimant as a factor of unreasonableness?
If the C is using his property for an extra-sensitive use, he isn’t entitled to sue in circumstances where a reasonable use wouldn’t need protection: McKinnon v Walker
What is meant by locality of events as a factor of unreasonableness?
In an industrial area, fumes are less likely to be considered unreasonable interference than in a rural area. Similarly, cockerels crowing in the morning are more likely to be considered an unreasonable interference in cities than in the country side: St Helens Smelting v Tipping
What is meant by the duration of the nuisance as a factor of unreasonableness?
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
What is meant by the social utility as a factor of unreasonableness?
The usefulness to society of the D’s conduct has a bearing on whether it’s reasonable for the C to have to put up with it - wind turbines are noisy but their social usefulness outweighs nuisance: Dennis v MOD
What is meant by the motive behind the D’s actions as a factor of unreasonableness?
If a nuisance is caused for malicious reasons, the claim is more likely to succeed. In these situations the Ds malice can make unlawful situation that might no have otherwise been a nuisance: Silver fox farming v Emmett
What are the three main defences for private nuisance?
- Volenti (consent)
- Prescription
- Statutory authority
What are the 4 general defences for private nuisance?
Contributory negligence
Act of a stranger
Inevitable accident
Act of God
