Private Nuisance

Question 1

Private nusiance

Answer 1

Any continuous activity or state of affairs causing a substantial and unreasonable interference with c’s land or their use or enjoyment of that land.

Question 2

The purpose of private nusiance

Answer 2

It is to balance two competing interests:
- the right of d to do what they like on their land
- the right of c to enjoy their land without being disturbed by d’s activities

Question 3

The objective test of private nusiance

Answer 3

Not every intentional interference with another’s enjoyment of land will be classed as a nuisance, only that which is unreasonable.

Question 4

The objective test of private nusiance - case

Answer 4

Bramford v Turnley - it is a ‘rule of give and take, live and let live’.

Question 5

Preliminaries - who can sue?

Answer 5

Anyone with a legal interest in the land affected.

Question 6

Preliminaries - who can sue? - case

Answer 6

Hunter v Canary Wharf - mere permission to use or occupy land is insufficient.

Question 7

Preliminaries- who can be sued?

Answer 7

• Creator of nusiance
• Occupier of land
• Owner of land

Question 8

Elements of private nuisance

Answer 8

1) indirect intereference
2) foreseeable, recognised type of damage
3) continuous act
4) unlawful interference

Question 9

Indirect interference

Answer 9

The nusiance starts on d’s land but then causes damage to some aspect of c’s use/enjoyment of the land.

Question 10

Indirect interference - cases

Answer 10

Sedleigh-Denfield v O’Callaghan - flooding
Wheeler v JJ Saunders - smells
Lemmon v Webb - encroachent
Kennaway v Thompson - noise
Miller v Jackson - cricket balls
Thompson-Schwab v Costaki - a brothel
St. Helen’s Smelting v Tipping - physical damage

Question 11

Foreseeable, recognised type of damage - case law

Answer 11

St. Helen’s Smelting v Tipping - the types of damages recoverable are:
a) physical damage to property
b) sensible personal discomfort (SPD) causing amenity to the land.

Question 12

Foreseeable, recognised type of damage - cases

Answer 12

Mitchell v Darley Main Colliery - physical damage to property must be more than de minimus
Walter v Selfe - SPD must be more than fanciful and materially interefere with human comfort
Hunter v Caranary Wharf - c cannot claim for personal injury since private nusiance is a tort against the land not the person
Cambridge Water v Eastern Countries Leather - the type of damage must have been reasonably foreseeable. C can then claim for any consequential loss flowing from recoverable damages.

Question 13

Continuous act

Answer 13

General rule: the nuisance must be continuous.

Question 14

Continuous act - exceptions cases

Answer 14

British Celanese v AH Hunt Ltd - a single incident caused by an underlying state of affairs
Crown Rivers Cruises v Kimbolton Fireworks - a activity which creates a state of affairs which give rise to the risk of escape of physically dangerous of damaging material.

Question 15

Unlawful interference

Answer 15

The term ‘unlawful’ means unreasonableness.

Question 16

Unlawful interference - cases

Answer 16

Cambridge Water v Eastern Countries Leather - test for unlawful interference: does the activity that is causing the nuisance amount to an unreasonable use of land?
Sedleigh-Denfield v O’Callaghan - reasonableness is ‘the ordinary useages of mankind living in society’

Question 17

Unlawful interference - factors

Answer 17

a) time and duration
b) locality
c) abormal sensitivity
d) malice
e) social benefit

Question 18

Unlawful interference - factors - time and duration cases

Answer 18

Kennaway v Thompson - time and duration (less relevant for property damage) asks:
- when
- for how long
- how frequently
De Keyser’s Hotel v Spicer Bros - a temporary activity may still consitute a nusiance

Question 19

Unlawful interference - factors - locality cases

Answer 19

(only relevant for SPD)
Sturges v Bridgman - an industrial business may be a nusiance in a residential area
Adams v Ursell - something that is a nusiance in one place, may not be a nusiance in another place.
Gillingham Borough Council v Medaway Dock - planning permission may alter the nature of an area
Wheeler v JJ Saunders - the mere granting of planning permission does not authorise a nuisance.

Question 20

Unlawful interference - factors - abnormal sensitivity cases

Answer 20

Robinson v Kilvert - a c who is unsually sensitive or has unusually sensitive property cannot claim nuisance for activities that would not interfere with the ordinary occupier
McKinnon v Walker - if the reasonable occupier would be affected, the thin skull rule applies.

Question 21

Unlawful interference - factors - malice case

Answer 21

Christie v Davey - d’s noise was held to be excessive and unreasonable given that it was made deliberately and maliciously for the purpose of upsetting c.

Question 22

Unlawful interference - factors - social benefit cases

Answer 22

Miller v Jackson - injunction was refused as it was considered that d was providing benefits to the community
Denis v MoD - in light of public benefit, damages were awarded over an injunction.

Question 23

Defences

Answer 23

• Prescription
• Ordinary use of land
• Statutory authority
• Act of God
  -Consent
• Contributory negligence

Question 24

Defences - prescription cases

Answer 24

Sturges v Bridgman - if d’s activity has been an actionable nuisance for 20 years or more, but c hadn’t brought and action, d will have earned the right to continue the nuisance
Coventry v Lawrence - it is the length of time that c compliained is cruical, not the length of time that the activity has been ongoing.

Question 25

Defences - ordinary use of land case

Answer 25

Southwark LBC v Mills - ordinary noises such as conversation, arguments, the television and the vaccum cleaner do not constitute a nuisance.

Question 26

Defences - statutory authority

Answer 26

Where d's activity is being carried out on the basis of statutory authority, they will escape liability if they have excersised all due care and the nuisance is an inevitable consequence of the activity. Planning permission is not statutory authority.

Question 27

Defences - statutory authority - case

Answer 27

Allen v Gulf Oil Refining - operations were authorised by statute and the nuisance was inevitable.

Question 28

Defences - act of god case

Answer 28

Goldman v Hargrave - d will not be liable for acts of god unless they adopt or continue the nuisance.

Question 29

Defences - consent

Answer 29

Normal rules apply.

Question 30

Defences - contributory negligence

Answer 30

Normal rules apply.

Question 31

What isn't a defence case

Answer 31

Miller v Jackson - cs moving to a nuisance is not a defence.

Question 32

Remedies

Answer 32

3 potential remedies: - injunction - damages - abatement

Question 33

Remedies - injunctions

Answer 33

The primary remedy: - normally prohibitory - could be mandatory A partial injunction may be a compromise, particularly where d's activities are of public benefit.

Question 34

Remedies - damages

Answer 34

For physical property damage: - can claim cost of repair - renewal - or any consequential economic loss. For amenity damage: - can be warded in lieu of an injunction, at the discretion of the court. Particular consideration will be given to how an injunction might affect the public interest - planning permission may support the argumnt that the activity is of public benefit - such damages are normally based on the reduction of value of c's property.

Question 35

Remedies - abatment

Answer 35

A 'self-help' remedy. C may enter the land of another and take reasonable steps to prevent the nuisance continuing. Anything belonging to d must be left on the property. Validly excersising the right to abate a nuisance will be a defence to tresspass.

Question 36

Remedies - the 'Shelfer test'

Answer 36

Shelfer v City of London Electric - damages should be awarded over an injunction when: 1) the injury to c's rights is small 2) c can be compensated by money 3) a small payment is adequent and 4) it would be unfair on d to grant an injunction Coventry v Lawrence - 1) an injunction could be the defult order in a nuisance claim, but 2) it is open to d to argue that an award of damages would be a suitable alternative 3) the Shelfer test should not be applied rigidly 4) an injunction will not automatically be granted even if the Shelfer test is met.