Private Nuisance Notes PDF

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Summary

Definition: Private nuisance is defined as any continuous, unlawful activity of the defendant that indirectly causes interference with the claimant’s use or enjoyment of his/her land where such interference is unreasonable. This tort covers physical damage to land. DAMAGE: PROOF OF DAMAGE NECESSARYP...

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Private Nuisance

Definition: 1. Private nuisance is defined as any continuous, unlawful activity of the defendant that indirectly causes interference with the claimant’s use or enjoyment of his/her land where such interference is unreasonable. This tort covers physical damage to land. DAMAGE: PROOF OF DAMAGE NECESSARY Private nuisance is not actionable per se, thus the claimant must suffer some harm, injury or damage to succeed with a claim. The types of damages that gives rise to an actionable private nuisance are: 1. Physical injury to land:  St Helens Smelting v Tipping, where the C’s crops and trees were damaged by the acid rain from the defendants smelting work.  Sedleigh-Denfleid v O’Callaghan, The overflow of water on to the land of another constitutes physical damage and is actionable in nuisance 2. Interference with the enjoyment of land (causing personal discomfort):  Leakey v National Trust, A landslip was held a nuisance  Tetley v Chitty, Disturbance by noise from a go-cart track  Bone v Seale, Nauseating smells had emanated from a pig farm  Laws v Florinplace, a sex shop in a residential street was held an unreasonable interference with enjoyment of property  Adams v Ursell, a fish and chip shop was unreasonable interference (its benefit to local poor inhabitants could not justify its presence in a fashionable street) 3. Encroachment: WHO CAN SUE? 

The claimant does need a proprietary interest in land to sue. This means that the claimant will usually be an owner or tenant not a guest or employee.  In Malone v Laskey, the claimant was unsuccessful with her claim because it was held that she had no proprietary interest in the land.  In Khorasandjian v Bush, the daughter of the property owner was harassed by the defendant. her action in PN succeeded despite the lack of proprietary interest in the property probably because there was no clear need for an injunction to protect her and no other basis upon which this could be issued.  An attempt to widen the use of nuisance was reversed and in Hunter v Canary Wharf, it confirmed that only those plaintiffs who had an interest in land could sue in PN. - FACTS: The construction of the canary wharf development created a large amount of dust in the neighbourhood, as well as interfering with tv reception of many residents.

Private Nuisance

WHO CAN BE SUED? 1. The creator of the nuisance even when the defendant is no longer occupying the land which is the source of the nuisance.  In Sedleigh-Denfield v O’Callaghan, person with some degree of personal responsibility. 2. The occupier of the land which is the source of nuisance  In Goldman v Hargrave, the occupier was liable because he failed to take adequate precautions to extinguish the fire.  In Leaky v National Trust, an occupier who fails to take reasonable care to abate a nuisance created by nature may also be liable. 3. A landlord who has leased premises is not liable for nuisance arising from them when the occupier take control of the land. However,  If the landlord has knowledge of the nuisance before leasing, the landlord will be liable Tetley v Chitty, land was let for the purpose of holding go cart racing. The landlord was liable for the noise caused because it was the natural consequence of the letting.  A landlord who has an obligation to repair may be liable by failing to repair the premises. Wringe v Cohen, if the premises become dangerous and someone is harmed by the danger, the occupier will be liable whether he knew/ought to have known of the danger or not. WHAT IS AN UNLAWFUL INTERFERENCE An ‘unlawful’ interference is one which is unreasonable. The rightness or wrongness of the defendants action will be determined by the effect on the claimants ability to enjoy and use his land. Factors 

SENSITIVITY OF THE CLAIMANT OR HIS PROPERTY

ISSUE: is the C unusually sensitive and is he using his land in a way that is susceptible to harm? Is the nuisance complained of one that would affect the ordinary use or enjoyment of land? A claimant may feel that his neighbour is committing a nuisance, but the defendants conduct must unreasonably affect the ordinary person using the land in an ordinary way. If the claimant is abnormally sensitive or their use of land is particularly sensitive, the defendant will not be liable. In Robinson v Kilvert, the plaintiff’s storage of delicate paper constituted special sensitivity. HOWEVER, In McKinnon Industries v Walker, where the loss was caused to the orchids, this was held not to be special sensitivity because any ordinary plants would also have been affected by the defendants activity. 

NATURE OF THE LOCALITY

Private Nuisance

The nature of the locality is taken into account and what is reasonable activity in one area may be unreasonable one in another. It was stated in Sturges v Bridgman (1879) 11 Ch D 852 that: "What would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey." FACTS: For more than 20 years a doctor had a property which adjoined a confectionary works. He then built a new consulting room at the end of his property and was then disturbed at the end of his property and was disturbed by noise and vibration from the confectionary works. It was held to be an actionable nuisance. The locality rule applies to cases of personal discomfort therefore locality is irrelevant if physical damage is caused. 

St Helens Smelting Co v Tipping

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PLANNING PERMISSION

The granting of planning permission might appear to authorise a nuisance. Planning permission by local authorities may have the effect of changing the nature of the locality and may act as a defence. The question of whether an interference arising from the activity on the land amounts to a nuisance will be decided with reference to its present use and not the previous nature of the locality. 

Gillingham BC v Medway Docks, the grant of planning permission to convert land to become a commercial dock meant that the area around it could no longer be regarded as residential, but industrial. This is held to have changed the character of the neighbourhood and the local residents were therefore unable to claim in nuisance for the disturbance it created.

HOWEVER, Planning permission does not mean a claim for private nuisance cannot be brought. in cases of small-scale developments, planning permission cannot alter the nature of the locality. 

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Wheeler v Saunders, the permission to extend a pig breeding operation did not alter the nature of locality. Thus, the defendants were liable as the smell constituted as interference/nuisance to the claimants enjoyment of land. In Coventry v Lawrence, Lord Neuberger concluded that planning permission cannot legalise a nuisance. There is a strong element of policy that determines whether planning permission has changed the nature of locality.  

A planning authority has to consider the effect of a proposed development on occupiers of neighbouring land. Barr v Biffa Waste Service, environmental permits are not equivalent to statutory authority, nor will they change the nature of locality.

Private Nuisance

Although the grant of planning permission does not override private rights such as rights of light and nuisance claims, it was relevant for deciding if the underlying activity was lawful. 

TIME AND DURATION 

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Time: What may be reasonable at one time of the day may be unreasonable if done at another time of day.  Halsey v Esso Petroleum: the filling of oil tankers at 10am was reasonable but when they undertook this activity at 10pm the court held it a nuisance. Duration: a nuisance must be continuous. The more frequent and the longer the period the more likely the court will find a nuisance. However, a single act can an amount to a nuisance  British Celanese v AH Hunt, foil had blown from the D's land where it was stored and had damaged an electricity substation, causing the electricity to an industrial estate to be cut off. this had occurred previously. The judge held this to be a nuisance as the method of storing the materials interfered with the plaintiffs enjoyment of their property.  However, it does not mean that a temporary state of affairs cannot be a nuisance.  De Keyser’s Royal Hotel v Spicer, Noisy pile driving at night during temporary building works was held to be a private nuisance. Rather than banning the activity, the courts limited the time of the activity through an injunction.

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THE DEFENDANT’S CONDUCT, MALICE

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If the defendant acts out of malice, the action is likely to be held unreasonable  Christie v Davie, The P had been giving music lessons in his homes. The D was annoyed by the noise and retaliated with malicious intention of annoying his neighbour. An injunction was granted to restrain the D’s behaviour. This was not a legitimate use of his house.  Hollywood Sliver Fox Farm v Emmett, although the shooting was not unlawful, the malicious purpose of the defendant made it an actionable nuisance.  Brandford v Rickles, Nuisance and Fault: Reasonableness of the defendant’s conduct  If a nuisance arises due to the effect of nature of 9the defendants land, then he may be liable, if he fails to take action to correct it.  Goldman v Hargrave, the defendant was liable for this naturally occurring source of nuisance which he should have, but failed to , prevent.  Once the occupier becomes aware of the nuisance and fails to remedy it within a reasonable time, he may become liable.

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Private Nuisance

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DEFENCES Effective  20 Years’ prescription If the defendant’s activity has been causing a nuisance for 20years or more, then he has acquired a legal right which acts as a defence to a nuisance claim. It is not sufficient for the defendant to show only the activity has been carried on for 20 years, the interference must show amounted to an actionable nuisance for a period of 20 years. In Sturges v Bridgman, when prescription was applied as a defence, it failed because the interference had not been actionable nuisance for the whole 20 years. (time ran from when the new building was erected and the nuisance started from that date)  Statutory authority The defendant may be a public body acting under statutory powers. This will serve as a defence to any nuisance action, if the nuisance is the avoidable outcome of authorised activity. Allen v Gulf Oil Refining Ltd, the plaintiff brought an action in that the refinery caused a nuisance , the house of lords decided, after careful interpretation of the statute, that it had effectively authorised the nuisance. Ineffective  Coming to nuisance is not an acceptable defence that the claimant came knowingly to an existing nuisance by occupying land. Bliss v Hall, the plaintiff complained about the smell/fumes of D’s candle making business. It was no defence that the D’s business had been in existences before the Ps arrival. As it was unreasonable to expect someone not to purchase land because a neighbour was abusing their rights. Miller v Jackson, the house next door to a cricket club, where the cricket club argued that they should not be liable because the claimant knew they moving in beside a cricket club.

 Social utility Although, there is public benefit of that particular activity, this will not stop the defendant being liable for the nuisance. Adam v Ursell, a fish and chip shop was not a benefit to the public on a fashionable street. REMEDIES Injunction is an order from the court to reduce or cease the defendant’s activity. An injunction will only be granted at the discretion of the court to balance the competing interests of the parties in their use and enjoyment of their land. 1. The injunction is a flexible remedy because it does not stop the defendants’ activity completely.  De Keyser’s Royal Hotel v Spicer,  The balancing exercise was undertaken by the court of appeal in Kennaway v Thompson, it held that an injunction should have been awarded. the claimant was entitled to an injunction restraining the

Private Nuisance

club from carrying on theirs activities which caused a nuisance to her in the enjoyment and use of land. despite the public interest in those activities. However, in Miller v Jackson, the court of appeal refused an injunction against a nuisance-causing village cricket club.  The court may take account of public interest and make an award of damages in lieu of an injunction, only in limited circumstances.  Coventry v Lawrence,  Damages in nuisance are intended to compensate for loss of amenity in the land. 1. Damages will be recoverable for an depreciation in the value of the land  Dennis v MOD, the claimants were awarded damages to compensate for the value reduction of their property caused by the noise of the harrier jets.  Abatement is where the injured party takes appropriate steps to stop the nuisance.  In Delaware Mansions v Westminister city council, it was appropriate for the council to pay the claimant to have the encroachment roots removed.  HOWEVER, a claimant who wishes to enter the neighbours property to undertake such activity must give notice of this intention, otherwise will be liable for trespass....