What is the definition of private nuisance?
Unlawful interference with a person’s
use or enjoyment of land, or some right over, or in connection with it
What are the three types of interference within private nuisance, from Hunter v Canary Wharf?
- Nuisance by encroachment
- Nuisance by direct physical damage to a neighbour’s land
- Nuisance by interference with a neighbour’s quiet enjoyment of their land (interference with personal comfort or loss of amenity)
With regard to “unlawful interference”, what constitutes “unlawful”?
Substantial and unreasonable
What are the factors a court will consider in deciding if an interference is substantial and unreasonable, and therefore “unlawful”?
Duration and frequency
Excessiveness of conduct/ extent of the harm
Character of the neighbourhood (only relevant to an interference which causes personal discomfort and inconvenience)
Malice of “unreasonable” activity
What relevance does abnormal sensitivity have on private nuisance claims?
When deciding whether an interference is unlawful the courts will look at its impact on
the normal user of neighbouring land, ignoring any abnormal sensitivity of the claimant
How is the “egg-shell skull rule” applicable in private nuisance?
If the claimant can show that the interference is unlawful when judged against the normal user of their land, they can then recover for all their loss even if greater (due to their sensitivity) than the normal user
Who can sue in private nuisance?
Only a person with the right to exclusive possession of land - i.e. owner/ occupier, or tenant
What three parties can be liable in private nuisance?
- Creator of the nuisance
- Occupier of the land from which the nuisance originates
- The landlord
If the land from which the nuisance originates is occupied by someone else, who is liable for the nuisance?
The creator of the nuisance
In what event would the occupier of the land from which the nuisance originates be liable instead of the creator of the nuisance?
When the creator can no longer be found, or is not financially worth suing
In what three events would a occupier be liable for a private nuisance which they did not create?
- Created by employee acting in the course of their employment
- Created by independent contractor, provided the nature of the work carries a special danger of the nuisance being created
- Created by a visitor, predecessor in title or trespasser, or arises through some natural occurrence provided the occupier has adopted the nuisance or continued it
In what events could the landlord be liable for nuisance caused by tenants?
- Express or implied authorisation for the nuisance
- Landlord aware of the existence of the nuisance at the start of the letting / landlord knew or ought reasonably to have known of it
- Landlord has covenanted to repair the premises / has the right to enter to do so, and fails to make the repairs which give rise to the nuisance
What types of damage are recoverable under private nuisance?
Physical damage to land or buildings
Recoverable damage and an consequential losses flowing from this
NOT personal injury or damage to personal property
What test for remoteness of damage applies for private nuisance?
Wagon Mound test
What is the defence of prescription in relation to private nuisance?
Defendant can show they have been continuing the nuisance for a period of at least 20 years against the claimant - therefore have acquired right to commit the nuisance
Interference must have been actionably by particular claimant for at least 20 years
Asides from prescription, what other defences are effective for private nuisance?
Contributory negligence
Consent
Act of God or nature
Necessity
What are the two elements required for the defence of necessity for private nuisance?
- Situation of necessity exists because of an imminent danger to life and limb, and
- Defendant’s actions were reasonably in all the circumstances
What are some ineffective defences against private nuisance?
Claimant “came to the nuisance”
Public benefit
Contributory actions of others - i.e. defendant’s action alone would not constitute an actionable nuisance
Planning permission
What are the principle remedies for private nuisance?
Damages (common law remedy)
Injunction (equitable remedy)
What are the three types of injunction?
Prohibitory injunction
Mandatory injunction
A “quia timet” injunction
What is a “quia timet” injunction?
A prohibitory or mandatory injunction granted in the anticipation of the commission of the tort by the defendant, in order to prevent the claimant suffering any damage
What does a claimant need to show in order to obtain an “quia intent” injunction?
They are almost certain to incur damage without the injunction, and
Such damage is imminent, and
Defendant will not stop their course of conduct without the order of the court
What are the requirements for the claimant to pursue the remedy of abatement (self-help) against private nuisance?
Victim must give prior notice to the wrongdoer (except in an emergency or where the nuisance can be removed without entering wrongdoer’s land)
What situation does the Ryland v Fletcher tort cover?
Where there is an escape of something dangerous in the course of a non-natural use of land
