Priv nuisance

Question 1

What are the 3 land-based torts?

Answer 1

1. Private Nuisance;
2. Public Nuisance; and
3. The Rule inRylands v Fletcher.

Question 2

Define private nuisance.

Answer 2

• Anycontinuousactivity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or his use or enjoyment of that land.

Question 3

Who can sue in private nuisance?

Answer 3

• the claimant must have a legal interest in the land, namely a possessionary or proprietary interest. Mere permission to use or occupy land is insufficient. (Malone v Laskey)

Question 4

Who can be sued in private nuisance?

Answer 4

1. Creator of the nuisance
   - The creator of the nuisance can be sued even if they can’t end the nuisance and even though they may not be the occupier of the land (Thomas v NUM)
2. Occupier of the land
   - can be liable for nuisances created by themselves and of others (Leakey v National Trust)
   - including independent contractors (Matania v National Provincial Bank)
   - trespassers (Sedleigh-Denfield v O’Callaghan)
   - naturally occurring nuisances (Goldman v Hargrave)
3. Owner of the land.
   - Usually not be liable for a private nuisance unless they either: created it or authorised it, by actively and directly participating in it, or by leasing the property in circumstances where there was a very high degree of probability that leasing the land would result inthatnuisance being created.
   (Coventry v Lawrence)

Question 5

Will the occupier in a private nuisance case be liable for nuisance created by a trespasser?

Answer 5

If the nuisance was created by a trespasser, the occupier will be liable if they continued or adopted the nuisance (Sedleigh-Denfield v O’Callaghan)
Where the nuisance was created by the occupier’s predecessor in title and existed before the occupier obtained the land, the occupier would only be liable if they continued or adopted the nuisance.

Question 6

What are the 4 elements of the tort of private nuisance?

Answer 6

1. Indirect interference;
2. Recognised damage;
3. Continuous act; and
4. Unlawful interference.

Question 7

Explain indirect interference (private nuisance).

Answer 7

• What constitutes indirect interference is governed by the principles laid down by the courts.
• Sounds, smells, fumes and vibrations have all been held to be an indirect interference
• An indirect interference occurs where the nuisance starts on the defendant’s land but then causes damage to some aspect of the claimant’s use or enjoyment of his land.
• Indirect interference can include a failure to act which results in loss, for example a land slip.

Question 8

Explain loss (private nuisance).

Answer 8

• suffered some damage.
• To be recoverable the damage must have beenreasonably foreseeable(Cambridge Water Company v Eastern Counties Leather).
• Claimed damage must be one that affects the claimant’s use or enjoyment of their land.
• Personal injury is not possible (Hunter v Canary Wharf Ltd).
• Physical damage to property or SPD (sensible personal discomfort) (St Helen’s Smelting Co v William Tipping)
• Anyphysical damageto property must bemore than trivial (Mitchell v Darley Main Colliery)
• any SPD must bemore than fanciful and materially interfere with ordinary human comfort(Walter v Selfe).
• CEL is recoverable but not PEL (Hubbard v Pitt).

Question 9

Explain continuous act (private nuisance).

Answer 9

• The general rule is that the nuisance must be continuous.

- A one-off isolated event is not normally actionable in private nuisance.

Question 10

What are the exceptions to the “acts must be continuous” factor of private nuisance?

Answer 10

• single incident caused by an underlying state of affairs (British Celanese v AH Hunt Ltd)
• an activity which creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material (Crown River Cruises Ltd v Kimbolton Fireworks Ltd)

Question 11

Explain unlawful interference (private nuisance).

Answer 11

• The nuisance must constitute an unlawful interference with the claimant’s land or use or enjoyment of the land.
• ‘unlawful’ = unreasonableness.
• If the use of land is reasonable, the defendant will not be liable; but if the use is unreasonable, the defendant will be liable, even if they exercised reasonable care and skill to avoid it.

Question 12

What are the relevant factors in determining whether the defendants use of land is unreasonable?

Answer 12

• time and duration
• locality
• abnormal sensitivity
• malice
• lack of care
• excessive behaviour
• public benefit

Question 13

Describe the time and duration factor (unreasonableness).

Answer 13

• Everyone has to put up with some interference
• If the interference is frequent or for long periods of time, this may be deemed unreasonable.
• The interference must be substantial.
• it is important to seewhenthe alleged nuisance takes place,how longit continues and howfrequentlyit is repeated. (Kennaway v Thompson)
• Where the loss is property damage, the court might find a nuisance even if caused by a temporary or short-lived activity (Crown River Cruises Ltd v Kimbolton Fireworks Ltd).

Question 14

Describe the character of a neighbourhood/ locality factor (unreasonableness).

Answer 14

• Whether use of land is reasonable will depend, in part, on the character of the area.
• Not relevant when physical damage had been caused (St Helen’s Smelting Co v Tipping)
• only relevant in relation to SPD.
• Sturges v Bridgman
• Adams v Ursell

Question 15

How will a planning permission be relevant?

Answer 15

• Planning permission only helps the courts determine whether a nuisance exists (e.g if they were using the land reasonably)
• Planning permission may alter the character of the area, so that what was once a nuisance in that area is no longer a nuisance (Gillingham Borough Council v Medway (Chatham) Dock Co Ltd)
• Planning permission will not authorise a nuisance. (Wheeler v JJ Saunders Ltd)

Question 16

Describe the abnormal sensitivity factor (unreasonableness).

Answer 16

• A claimant who is unusually sensitive cannot claim that activities that would not interfere with the ordinary occupier are a nuisance, simply because they are a nuisance to them alone.
• Robinson v Kilvert
• If the reasonable occupier would be affected, the claimant can claim for the full extent of their loss and irritation, even though these are increased by their sensitivity.
• McKinnon Industries v Walker
• Abnormal sensitivity should be considered alongside as part of foreseeability.
• Network Rail Infrastructure Ltd v CJ Morris
• The correct test is whether it was foreseeable that specific damage would be caused to a specific claimant i.e. an activity on land can only be a nuisance if the defendant could reasonably foresee that it might be a nuisance to someone else.

Question 17

Describe the malice factor (unreasonableness).

Answer 17

• A certain amount of conflict is inevitable and if the defendant can show a legitimate reason for what they have been doing, the court will be less inclined to interfere with their activities.
• However, if the defendant can point to no real justification for their actions as their aim is solely to annoy the claimant, this will normally constitute a nuisance.
• the issue of malice.
• Christie v Davey
• Actions performed out of malice are almost certain to be considered as unreasonable interferences (Hollywood Silver Fox Farm v Emmett)

Question 18

Describe the defendant’s lack of care factor (unreasonableness).

Answer 18

• If the defendant has shown lack of care, this is likely to count in the claimant’s favour.
• Andreae v Selfridge and Co Ltd

Question 19

Describe the excessive behaviour factor (unreasonableness).

Answer 19

• If the defendant has behaved in an excessive manner, this may indicate that they are being unreasonable and creating a nuisance.
• Farrer v Nelson

Question 20

Describe the public benefit factor (unreasonableness).

Answer 20

• If the defendant’s activities serve a useful purpose or benefit the community, this will not mean that the defendant has not committed a nuisance.
• Adams v Ursell
  ○ It was confirmed that although public benefit might be a factor to be weighed up when balancing ‘give and take’, it is not to be given too much significance.
• Barrv Biffa Waste Services Ltd

Question 21

Can “moving to the nuisance” be a defence?

Answer 21

NO bro

• The fact that the claimant moved to the nuisance is immaterial: they are still entitled to bring an action.
• Miller v Jackson

Question 22

What are the defences for private nuisance?

Answer 22

1. 20 years’ prescription
   - If the defendant’s activity has been anactionable nuisance for 20 years or more(i.e. a claimant would have had grounds for bringing a claim against the defendant for that period) but no such action has been taken, the defendant will have earned the right to continue to commit the nuisance.
2. Statutory authority
3. Consent
   - If the claimant specifically agrees to the defendant causing the nuisance then that consent will be a defence.
4. Contributory negligence
   - The usual rules of contributory negligence apply (s.1 Law Reform (Contributory Negligence) Act 1945).
5. Act of third party
   - Where the nuisance has been created by a third party for whom the defendant bears no responsibility, the defendant will not be liable for the nuisance, unless they have carried on the nuisance or it is reasonable for them to put a stop to it (Sedleigh-Denfield v O’Callaghan).
6. Act of God.

Question 23

What are the remedies for private nuisance?

Answer 23

1. Injunction
   - can be full or partial
2. Damages
   - for actual physical damage -> cost of repair
   - CEL
   - in lieu of an injunction (SPD)
3. Abatement.
   - claimant can enter onto the land and take reasonable steps to prevent the nuisance continuing