Private nuisance

Question 1

What is private nuisance?

Answer 1

Any continuous activity causing a substantial and unreasonable interference with C’s land or use of enjoyment of that land

Question 2

Who can sue in private nuisance?

Answer 2

To bring a claim in private nuisance, C must have a legal interest in land - namely a possessionary or proprietary interest

Question 3

Who can be sued in private nuisance?

Answer 3

1. Creator of nuisance
- even when they many not be occupier of the land or
- be in a position to end nuisance
2. Occupier of land from which nuisance originates:
- can be liable for nuisance created by themselves as well as by others (e.g., building work being done in home)
- where occupier knew or ought to have known danger/existence of nuisance and failed to take reasonable steps to end it
3. Owner of land
- lanlord will not usually be liable for private nusiance unless exception landlord authorised it, by actively and directly participating in it or by leasing property in circunsatnces where there was a very high degree of probability that leasing land would result in that nuisance beign created

Question 4

What are the four elements needed for the tort of private nuisance?

Answer 4

• indirect interference
• recognised damage
• continous act and
• unlawful interference

Question 5

1) indirect interference?

Answer 5

Private nuisance concerns indirect interference with use or enjoyment of C’s land in contrast with direct inference which would be a trespasser of land
* example of indirect interference includes sounds, smells and vibraration
* it occurs where nuisance starts on D’s land but then causes damage to some aspect of C’s use or enjoyment og their land resulting to a loss

Question 6

2) recognised damage (loss)

Answer 6

C must have suffered some damage. Types of damage recoverable are:
* physical damage to property: must be more than de minimus (trivial)
* sensible personal discomfort (SPD): where C is affeceted in such way that C is unable to enjoy their land (e.g., noise) - must be more than fanciful and materially interfere with ordinary human comfort - can be defined as amenity damage

Type of damages must have been reasonably forseeable and C can recover any consequential losses flowing from recoverable damage (e.g., loss of profits caused by C’s inability to use land to make profits)
- C cannot claim personal injury given that private nuisance is a tort against land not person

Question 7

3) continuous act?

Answer 7

General rule is that nuisance must be continuous which exceptions being:
* single incident caused by an underlying state of affairs:
- where similar occurence has happened before
* state of affairs creating risk of escape of physically dangerous or damaging material:
-

Question 8

4) unlawful interference?

Answer 8

Court in deciding unlawful interference, look at whether activity that is causing nuisance amounts to unreasonable use of land regardless of even if D excercised reasonable care of skill.
Factors such as:
* time and duration: longer interference, likely it will be deemed unreasonable - looks at frequency
* locality: relevent only to SPD - this depends on character of the area (e.g., residential area) - planning permission does not authorise a nuisance but terms of it may have bearing on whether or not nuisance exists.
* malice: D’s aim is to solely annoy C
* abnormal sensitivity: C who is unsually sensitive cannot claim that activities that would not interfere with ordinary occupier are a nusiance

where loss is property damage only, court will allow short term/temporary interference