Answer to Private Nuisance PDF

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Summary

The question in this scenario directly relates to the area of civil law of private nuisance. There are two in areas of nuisance in law public nuisance and private nuisance. Winfield- defined private nuisance as any unreasonable ad that interferes with the claimant use and enjoyment comfort and conve...

Description

The question in this scenario directly relates to the area of civil law of private nuisance. There are two in areas of nuisance in law public nuisance and private nuisance. Winfield- defined private nuisance as any unreasonable ad that interferes with the claimant use and enjoyment comfort and convenience of his or her land that is not justified by the law. Clark and Lindsell- an act or omission that is interference. Private nuisance requires the person who has suffered the unreasonable interference to be to be in occupation/ possession or ownership of their land. The act of nuisance can be intentional, negligent or either. An activity in private nuisance will only be actionable if it is unreasonable. The two elements this scenario is concerned with are physical damage and interference with use or enjoyment of land. The tort of private nuisance is concerned with land and not the person therefore you cannot claim for personal injury. Needs to be physical damage e.g. flooding or interference with land thought e.g. noise/smells. In private nuisance damage must be established but it can be assumed. A good case illustrating physical damage was the case of St. Helens smelting where Lord Westbury distinguished between physical damageoccupier will be protected regardless of where they live and intangible damage- which will depend on the location of the interference. When concerned with interference with enjoyment of land, whether the defendant acts constitute nuisance or not is a degree of balancing factors. Defendant in reality may be doing something lawful which becomes unlawful because it is it exceeds reasonable limits. Whether the act is lawful on unlawful is a question of fact in bending over circumstances of the case. If the Court considers that the defendant act is unreasonable the fact that he has taking due diligence will not be a defence. The court will consider up to 6 factors depending on circumstances of the case. It is important to note that the court will look objectively as to whether the defendant act is an interference measured against an ordinary person standards who may occupy the land. In some cases, the nature the locality Will be a significant factor for the courts to consider contrast living in residential area to living in an industrial area. In laws v Florinplace, it was held that the nature of the business offended residents and that this was an interference with the enjoyment and use of land. it was also held that an act all be a nuisance if the use of the property is an upfront to the reasonable susceptibilities of ordinary individuals. In Lawrence v Fen Tigers- it was held that the defendant’s activities will be taken into account but only to the extent that they did not constitute nuisance, however just moving to a location and finding a nuisance there does not mean they have consented to the

nuisance. Though it may be the case that the defendant will be able to rely on the defence prescription. The defendant may rely on the defence of prescription, if their activity has been carried out for 20 years, the claimant is aware of the activity and in the 20 years’ activity has been a nuisance R v Taylor. In relation to abnormal sensitivity, the defendant’s act will not constitute a nuisance if it would have not troubled ordinary person of the same suspect abilities. In McKinnon industry, it was held that if the defendant activity would have interfered with the ordinary use of land in any event, defendant will be liable in private nuisance despite the delicate nature of the claimant operations. The farmer was confirmed in the case of Robinson waiter was held that activities that will not injure anyone but the more sensitive trades were not an actionable nuisance. Where the duration of interference is only for temporary nature, no liability will arise unless the gravity of the interference is serious or unreasonable. This was the case in the De Keysers Hotel, where the court granted a partial injunction to stop night pile diving. Additionally, an isolated incident command to a nuisance if it can be attributed to a continuing state of affairs. Public benefit in the case of private nuisance is more a defence than a factor. Although the court would take into account of the defendant activities unity and benefit to the public the court will only justify an argument for public benefit to an extent, beyond this extent the court will not accept an argument for public benefit. However, in Dennis v Ministry of defence we can see the court as a result of public benefit awarding damages instead on an injunction, thus suggests that public benefit may have an influence on the remedy awarded. If a statute authorises the defendant’s activity, there will be no liability unless the interference can be avoided by taking reasonable steps. In relation to planning permission, in Gilliham v LBC it was held that although planning permission cannot authorise a nuisance, it could change the nature of the locality in that an activity that was one a nuisance in the former is not a nuisance in the present. Where the defendant’s conduct is motivated by malice, this may convert a lawful activity into an actionable nuisance. A case in principle is Christie v Davey were an injunction was granted to stop the defendant’s acts motivated by malice and followed in Hollywood silver fox farm, where even though the claimants land law abnormally sensitive, the court still granted an injunction to stop the defendant’s acts motivated by malice. The factor of negligence in private nuisance suggests that, reasonable care by a defendant will not prevent his activity from being an actionable nuisance. But failure to exercise reasonable care or

negligence by a defendant will work in the claimant’s favour as the court will not sanction something that could have been avoided by the exercise of reasonable care. In private nuisance, because the tort protects interests in land, only a person with a proprietary interest in land may sue. Therefore, in the case of Malone v Laskey, the claimant’s argument failed on the fact that they did not have a proprietary interest. This position was confirmed by the HL in Hunter v Canary Wharf where it was held that in order to sue in private nuisance, the claimant needed to have exclusive possession. In private nuisance, the claimant can sue of one of two people, the creator of the nuisance who is the person who created the nuisance and it does not matter whether they have exclusive possession or not and the occupier- the person from who’s; and the nuisance emanates. The occupier will be liable for his own actions as well as the actions of others e.g. a visitor because the have authority to eject and invite the visitor to their land. in Denfield v O’Callaghan it was held that an occupier will not be liable for the acts of a trespasser unless he knew of the nuisance created by the trespasser and did not take reasonable steps to abate it or if he used it for his own benefit. An occupier will also be liable for acts of nature Leaky v National trust- where he has actual or constructive knowledge of the nuisance and fails to take reasonable steps to minimise or remove it. Knowledge of a nuisance is not enough to incur liability, unless the occupier has actually knowledge and has failed to take reasonable steps to minimise it. A landlord who has parted away with possession will not be liable for a nuisance unless he has authorised or participated with the nuisance. A landlord authorises a nuisance if he is aware for what purposes he is letting the premises as in the case of Tetley v Chitty and James v Harris. If an act itself is not an actionable nuisance the landlord will not be liable as in Southwark v LBC were a claim failed on the basis that a landlord had failed to input adequate soundproofing in a flat. In Bliss v Hall, it was held that coming to a nuisance is no defence. Also contribution of others is also not a defence. In a claim of nuisance, the court may award several remedies including the discretionary equitable remedy of an injunction as in the cases of Hollywood silver fox farm/ Christie v Davey. And also a partial injunction as in the case of De Keysers Hotel. The court may also award damages for interference with use and enjoyment and for physical damage but not personal injury because the tort is concerned with land than the person. Finally, the court can also award the remedy of abatement where the claimant

themselves are given permission to remove the nuisance e.g. cutting trees and hedges....