private nuisance

Question 1

steps of private nuisance

Answer 1

1. definition
2. parties to the nuisance
3. unlawful use of the land / factors affecting reasonableness
4. type of interference
5. remedies- injunctions and damages
6. deciding between injunction or damages
7. defences
8. defences - perscription
9. defences - planning permission

Question 2

1st step

Answer 2

definition

an unlawful indirect interference with a persons use or enjoyment of land coming from neighbouring land.

Question 3

2nd step

Answer 3

parties to the nuisance
C
- must have an interest in the land 
HUNTER V CANARY WHAF LTD
members of a household who do not have an interest in the land cannot claim

D
- the person causing or allowing the nuisance, does not need to have interest
SEDLEIGH DENFIELD V O’CALLAGHAN
an occupier who knows of the danger and allows It to continue is liable even if he has not created the danger himself.

LEAKY V NATIONAL TRUST
d can be liable where the nuisance is the result of natural causes which he us aware of but fails to deal with

Question 4

3rd step

1st half

Answer 4

unlawful use of land

not necessarily illegal but unreasonable in how it affects c

Question 5

3rd step 2nd Half

Answer 5

unlawful use of land

1. locality
   residential/partly commercial/industrial/ town/ country
2. duration of intereferance
   likely to e continuous and unreasonable hours of the day
   BUT
   CROWN RIVER CRUISES LTD. V KIMBOLTON FIREWORKS LTD
   short-term activity can amount to nuisance
   DE KEYSER’S ROYAL HOTEL LTD V SPICER BROS LTD
   temporary building work can amount to nuisance
3. C’s tolerance
   HEALTH V MAYOR OF BRIGHTON
   test for reasonableness is based on whether it would affect a person of normal tolerance
   ROBINSON V KILVERT
   if c is unduly sensitive, nuisance will not be found
4. Malice from D
   deliberate harmful act will normally be unreasonable and a nuisance
   CHRISTIE V DAVEY
   D’s deliberate and malicious behaviour amounted to nuisance

Question 6

4th step

Answer 6

Types of interference

1. Loss of amenity
   fumes, smell, noise
2. material damage
   dangerous state of affairs on D’s land causes physical damage to C’s land
   tree roots, fire, cricket balls
3. emotional distress
   THOMPSON-SCHWAB V COSTAKI
   running a brothel in a residential area was intereferance
   LAWS V FLARINPLACE LTD
   A sex shop in an area of shops, restaurants and housing was an interference.
4. can’t claim to protect a view, right to light, recreational facility
   HUNTER V CANARY WHARF LTD.
   loss of a recreational facility e.g. tv reception, not sufficient

Question 7

5th step

Answer 7

Remedies

1. injunctions
   - prohibitory injunction- order of court to stop doing something
   - mandatory injunction - less common - order of court to carry out a certain action
2. damages
3. abatement
   e. g entering D’s premises to prevent further nuisance
4. ADR
   not a remedy as such - court encourage negatiation and mediation as it allows parties to come to resolution with less confrontation - important as we still need to live alongside each other

Question 8

6th step

Answer 8

deciding between injunction or damages

KENNAWAY V THOMPSON
injunctions can be granted in whole or part

• social benefit - D is providing a benefit to the community - more likely C to be awarded damages rather than injunction
  MILLER V JACKSON
  social benefit to activity, damages should be considered rather than injunction
  DENNIS V MOD
  benefit to public schools should be considered rather than injunction
  CONENTRY V LAWRENCE
  damages should be considered as a remedy more often, especially where a planning permission has been awarded or public interest is involved

Question 9

7th step

Answer 9

defences moving to the nuisance

NOT a defence

MILLER V JACKSON
can’t argue they moved near a cricket ground
STURGES V BRIDGMAN
can’t argue he moved near the nuisance by building his consultant room near the factory

Question 10

8th step

Answer 10

defences presciption

If the action has been carrying on for at least 20 years and there has been no complaint between the parties, D may have a prescriptive right to continue

STURGES V BRIDGMAN
defence failed

COVENTRY V LAWRENCE
the defence only applies to an activity which was an actionable nuisance for at least 20 years – not just an activity which had been carried out for that time without complaint

Question 11

9th step

Answer 11

planning permission

GILLINGHAM BOROUGH COUNCIL V MEDWAY (CHATHAM) DOCK CO.
Character of neighbourhood had changed by planning permission so not a nuisance – defence allowed

WHEELER V SAUNDERS
if planning permission does not change the character of the neighbourhood, defence will not work