Private nuisance

Question 1

what is meant by private nuisance?

Answer 1

Private nuisance occurs when there is an unlawful interference with another person’s use or enjoyment of land coming from neighbouring land

Question 2

What must the claimant demonstrate to bring a private nuisance claim? & case

Answer 2

The claimant must have a legal interest in the land (e.g., ownership or tenancy).

Case: Hunter v Canary Wharf (1997) – Claimants without a legal interest, such as family members living in the property, cannot bring a claim

Question 3

What must the D demonstrate to bring a private nuisance claim?

Answer 3

Must create/cause or allow the nuisance to occur.
If it’s a naturally occurring nuisance D is still liable if they know and do nothing about it.

Question 4

Case that confirms D’s nuisance

Answer 4

Sedleigh Denfield v O’Callaghan (1940)
The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance

Question 5

First element of private nuisance

Answer 5

• Unreasonable use of the land

Question 6

What does unreasonable use of the land mean?

Answer 6

• The D is using their land in such an unreasonable way that it is deemed unlawful.
  The ‘common and ordinary’ use of land will be considered

Question 7

1st factor in determining whether D’s use of the land is unreasonable? & case

Answer 7

Locality - The area will be considered to determine if the D’s use of land is unreasonable according to the character of the surrounding area

Fearne v Tate Gallery - viewing gallery had caused a substantial interference with the ordinary use and enjoyment of the claimants’ property

Question 8

2nd factor in determining whether D’s use of the land is unreasonable? & case

Answer 8

Duration - Increased duration / repetition / timing of an interference increases the likelihood of unreasonableness.

Crown River Cruises Ltd v Kimbolton Fireworks Ltd (1996):
Some burning debris from the display landed on a nearby barge which caught fire. The defendant was liable despite the nuisance only lasting twenty minutes

Question 9

3rd factor determining whether D’s use of the land was unreasonable & case

Answer 9

Sensitivity – Nuisance is judged according to the ordinary man. Where this would not be a nuisance to the majority of the population the claim is likely to be unsuccessful

Pusey v Somerset County Council (2012)
actionable case in nuisance there must be a real interference with the comfort or convenience of living according to the standards of the average person. Abnormal sensitivity to noise or the other matters complained of is not therefore sufficient to find a cause of action

Question 10

4th factor that determines whether D’s use of the land was unreasonable & case

Answer 10

• Motive of the defendant – Where it can be proven that a D is using their land in order to purposefully disturb or harm a neighbour, this significantly increases the likelihood of a finding of unreasonable use.
• Hollywood Silver Fox Farm v Emmett (1936)
  The defendant was liable despite the abnormal sensitivity of the foxes because he was motivated by malice.

Question 11

2nd element of private nuisance

Answer 11

• Leading to an indirect interference
• The interference must be indirect, this means that the D is not directly interfering with land themselves

Question 12

Under the 2nd element, what are two ways indirect interference can occur?

Answer 12

• Physical damage to land or property
  St Helen’s Smelting Co v Tipping (1865) – Physical damage to plants from fumes
• Loss of amenity (use or enjoyment of land)
  Halsey v Esso Petroleum Co Ltd (1961) – Noise and odours affected residential enjoyment

Question 13

3rd element of private nuisance

Answer 13

• With the claimant’s use or enjoyment of land

Question 14

What can the C claim for? What can they not?

Answer 14

Can claim for - Property damage (smoke, fires, flooding)
Loss of amenity (Noise, smells, vibrations, or excessive light making it difficult to enjoy the property)

Cannot claim for - Personal injury, Right to view, Pure economic loss

Question 15

Case for 3rd element of PN

Answer 15

Hunter v Canary Wharf Ltd (1997)
Loss of television reception caused by the construction of the Canary Wharf tower did not constitute private nuisance because it did not involve a direct or physical interference with the land

Question 16

How does the defence of consent (volenti non fit injuria) apply in private nuisance?

Answer 16

applies where the claimant:

Knew of the risk of the nuisance.
Voluntarily accepted or agreed to it, either explicitly or implicitly.

Question 17

Prescription as a defence to PN?

Answer 17

• Prescription is a claim that the activity has been ongoing as an actionable nuisance for at least 20 years without complaint by the C. There is no
  defence of ‘moving to the nuisance.’

Question 18

Contributory negligence

Answer 18

contributory negligence can be a partial defence to private nuisance if the claimant’s own actions contributed to the harm they suffered
Sturges v Bridgman

Question 19

Remedies avaliable for PN

Answer 19

Injunctions - court order either prohibiting or controlling an activity, where there is a substantial nuisance will not be awarded if there’s a public interest for the activity to continue
Kennaway v Thompson

Damages
Physical damage - repair, replacement cost
Loss of amenity - damages are equal to the loss in value to the land