12. Nuisance

Question 1

Purpose of the law of private nuisance

Answer 1

to protect an individual in their enjoyment of their own property.

Question 2

Definition of private nuisance

Answer 2

unlawful interference with a person’s
use or enjoyment of land, or some right over, or in connection with it

Question 3

Things the claimant must demonstrate to have a successful case in the tort of private nuisance

Answer 3

1. There is an interference with the claimant’s use and enjoyment of land or some rights they enjoy over it; and
2. the interference is unlawful

Question 4

Three types of ‘interferences’ in private nuisance

Answer 4

1. nuisance by encroachment on a neighbour’s land
2. nuisance by indirect physical injury to a neighbour’s land
3. nuisance by interference with a neighbour’s quiet enjoyment of his land

Question 5

Characteristics of an interference which is actionable in the tort of private nuisance

Answer 5

Something that materially interferes with ordinary comfort (not elegant or dainty modes of living) - ie. loss of a view is not actionable or loss to TV reception

Question 6

Definition of ‘unlawful interference’

Answer 6

An interference which is substantial and unreasonable (not necessarily criminal)
- eg. encroaching onto a neighbour’s land

Question 7

Relevant factors when assessing whether an interference is substantial and unreasonable (unlawful)

Answer 7

1. Duration and Frequency (cannot be an isolated incident unless this emanates from a continuing state of affairs on D’s property)
2. Excessiveness of conduct / extent of the harm (objective)
3. Character of the neighbourhood
4. Malice

Question 8

When is ‘the character of the neighbourhood’ a relevant consideration in a private nuisance claim

Answer 8

If the claimant has suffered personal discomfort or inconvenience due to the interference (rather than physical damage)
- each area has its own standards (eg. london)
- if the activities cannot be carried out without creating a nuisance they will have to be discounted when assessing the character of locality

Question 9

PN: When will the activities of the defendant NOT be taken into account when assessing the ‘character of the locality’

Answer 9

• if they cannot be carried out without creating a nuisance
• if they are in breach of planning permission

Question 10

PN: The effect of an activity done with ‘malice’ on the claimant’s case

Answer 10

If interference carried out with Malice it will never be regarded as reasonable (satisfying ‘unlawful’ requirement) - likely to tip balance in claimant’s favour

Question 11

Does the court take into claimants with ‘abnormal sensitives’ when deciding whether an interference is unlawful?

Answer 11

Generally no - the claimant will be judged against the normal user of their land
- BUT if they are successful, they can recover for ALL of their losses even if these losses are greater than those which a ‘normal’ person would incurr

Question 12

Who can sue in private nuisance?

Answer 12

Those with proprietary interest in land (and therefore the right to exclusive possession of land)
- Owner-occupier
- tenant of land

Question 13

Who CANNOT sue in private nuisance

Answer 13

1. children of owner-occupiers
2. anyone else staying in property legally owned by another person as their guest

Question 14

Three potential defendants in private nuisance

Answer 14

1. creator of the nuisance
2. occupier of land from which nuisance originates
3. the landlord

Question 15

When will ‘the creator of the nuisance’ be liable in PN?

Answer 15

Always, even if the land is now occupied by someone else (as they are the original creator)

Question 16

When is an ‘occupier of land’ liable for PN?

Answer 16

1. When they have created nuisances by positive acts or omissions
2. when the nuisance was created by an employee acting in the court of the occupier’s employment
3. where nuisance created by independent contractor if nature of work carried a special danger of the nuisance
4. where nuisance is created by a visitor, predecessor in title or trespasser or natural occurrence if occupier has ADOPTED nuisance or CONTINUED it

Question 17

When could an occupier be said to have ‘adopted’ a nuisance?

Answer 17

If they make use of the thing which constituted the nuisance

Question 18

When could an occupier be said to have ‘continued’ a nuisance?

Answer 18

if, once they know or ought reasonably to know of its
existence, they fail to take reasonable steps to end the nuisance.

Question 19

When assessing whether a defendant took reasonable steps to end a nuisance - will they take into account the defendant’s financial resources?

Answer 19

YES

Question 20

When will a landlord be liable for a PN claim

Answer 20

1. expressly or impliedly authorised nuisance (ie. nuisance inevitable result of the letting)
2. Nuisance existed at the start of the letting and landlord knew or ought reasonably to have known of it
3. landlord has covenanted to repair premises / or has right to enter to do so and fails to make these repairs (giving rise to the nuisance)

Question 21

If a landlord fails to make repairs which they have the right to enter (and do) and therefore a nuisance is created - is the tenant also liable?

Answer 21

Yes, potentially as an occupier

Question 22

PN: Types of damage recoverable

Answer 22

1. physical damage to land or buildings
2. NOT personal injury
3. interference with quiet enjoyment (personal discomfort)
4. MAYBE damage to personal property (if they flow as a consequence of personal discomfort caused by nuisance)
5. Consequential losses flowing from a recoverable damage

Question 23

Effective Defences for a PN Claim

Answer 23

1. Prescription
2. Statutory Authority
3. Contributory Negligence
4. Consent
5. Act of god or nature
6. Necessity

Question 24

PN: Defence of prescription requirements

Answer 24

if the defendant can show that they have been continuing
the nuisance for a period of at least 20 years against THE CLAIMANT. The effect of prescription
is that the defendant has ‘acquired’ the right to commit the nuisance.

Question 25

PN: Defence of Act of God / Nature

Answer 25

Where an interference on the defendant’s land results from a ‘secret unobservable process of nature’ (eg subsidence under or near the foundations of the defendant’s house) or from an act of God (eg lightning) then the defendant will not be liable in nuisance unless they adopt or continue the nuisance.

Question 26

PN: Defence of Necessity (two elements)

Answer 26

1. a situation of necessity exists because of an imminent danger to life and limb (or in limited circumstances, a threat to property); and 2. the defendant's actions were reasonable in all the circumstances

Question 27

Ineffective defences in the tort of private nuisance

Answer 27

1. claimant 'came to the nuisance' (knew about it) 2. Public Benefit 3. Contributory Actions of others 4. Planning permission was granted (but this will be considered in considering the character of the neighbourhood)

Question 28

PN Claim: Principal Remedies

Answer 28

1. Damages 2. Injunction 3. Abatement (self help)

Question 29

PN Claim: Damages

Answer 29

Damages will be awarded for any loss which the claimant has already suffered by the date of trial - the court also has limited power to award damages for future loss

Question 30

PN: Damages assessed for physical damage to claimant's land

Answer 30

a claimant will generally be awarded damages to reflect the cost of repairing the damage or, if this is not possible, the loss in value of the land in question.

Question 31

PN: Damages assessment for personal discomfort

Answer 31

it was suggested that personal discomfort should be valued by looking at the loss of amenity value of the land in question - but this is difficult to assess

Question 32

PN Claim: Can damages AND injunction both be pursued as remedies?

Answer 32

Yes - if court decides not to grant damages in lieu of injunction (which would cover future breaches)

Question 33

Quia Timet Injunction Definition

Answer 33

Exceptional Circumstances: court grants injunction (prohibitory or mandatory) in anticipation of the commission of the tort

Question 34

Requirements a claimant must show to be granted a quia timet injunction

Answer 34

Claimant: 1. are almost certain to incur damage without the injunction 2. such damage is imminent 3. the defendant will NOT stop their course of conduct without the order of the court

Question 35

PN: When should the court exercise its discretion to refuse an injunction and grant damages instead

Answer 35

1. the harm suffered by the applicant is - small - capable of being quantified in financial terms and - capable of adequate compensation by damages AND 2. it would be oppressive to the defendant to grant the injunction BUT court may still refuse to grant an injunction if these are NOT satisfied (as it is up to their discretion) - public interest may be a consideration and planning permission

Question 36

Definition of Abatement

Answer 36

The removal of the interference by the victim

Question 37

Requirements for abatement (notice?)

Answer 37

- victim must normally give notice except in an emergency OR where nuisance cannot be removed without entering wrongdoer's land

Question 38

Tort of Rylands v Fletcher

Answer 38

1. the defendant brings onto their land for their own purposes something likely to do mischief 2. if it escapes 3. which represents a non-natural use of land 4. and it causes foreseeable damage of the relevant type

Question 39

RvF: What must happen to the 'things likely to do mischief' to give rise to a successful claim

Answer 39

The things themselves must actual escape (they cannot just cause an issue from the defendant's land)

Question 40

RvF: Defences

Answer 40

1. Escape caused by the unforeseeable act of a stranger 2. escape caused by an 'act of god' which could not have been reasonably foreseen 3. statutory authority 4. consent 5. contributory negligence

Question 41

Public Nuisance: Crime or Tort

Answer 41

Both

Question 42

When does public nuisance give rise to tortious liability

Answer 42

1. conduct that materially affects the reasonable comfort and convenience of a ‘class of Her Majesty’s subjects’; and 2. the claimant has suffered particular harm.

Question 43

'Harm' in public nuisance

Answer 43

1. Property Damage 2. Loss of profit 3. Personal Injury **