Nuisance

Nuisance

1. Private Nuisance

   • Private nuisance is an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it as defined by Scott LH in Read v Lyons.
     • Private nuisance is any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or his use or enjoyment of that land per Bramwell B in Bramford v Turnley[1860].
       • Re Corby Group Litigation [2009] ‘The essence of the right that is protected by the tort of private nuisance is the right to enjoy one’s property… The essence of the right that is protected by the crim and tort of public nuisance is the right not to be adversely affected by an unlawful act or omission whose effect is to endanger the life, safety, health etc. of the public.

2. SUE?

   • CREATORS: The creator of a nuisance can always be sued even if they are no longer in occupation of the land from which the nuisance origins per Denfield v O’Callagan [1940]. It is necessary that the defendant must have been able to foresee damage of the relevant type when the act alleged to be a nuisance occurred per Cambridge Water Co v Eastern Counties Plc. [1994]. However, the creator will cease to be liable for continuing damage when they are unable to rectify the situation.
     • OCCUPIER: Occupiers will be liable for nuisances created by themselves even when the occupier has not created the nuisance, they may still be liable on the basis of having control of the land and not taking reasonable measures to bring it to an end, or prevent it, where he has actual or presumed knowledge of the nuisance per Denfield v O’Callagan [1940].
       • LANDLORDS: A landlord will be liable for a nuisance for which they have expressly or impliedly authorised the nuisance per Tetley v Chitty [1987]. Additionally, they will be liable if they had knowledge of the nuisance at the time of letting the land out to the occupier or ought to have has the knowledge per Brew Bros Ltd v Snax (Ross) Ltd [1970]. Fundamentally, liability will also arise if the nuisance is caused by a dangerous condition in the land which has arisen from want of repair during the tenancy and the landlord has covenanted to perform repairs or has an express or implied right to enter and perform repairs as per Mint v Good [1951].

3. ESTABLISHING

   • Unlawful Interference
     • Per St. Helens Smelting Co v Tipping [1865] The claimant must establish that the defendant has caused a substantial interference with their use or enjoyment of their land by physical damage to C’s land, substantial interference with enjoyment of land through noise, smells, vibrations, etc. and encroachment onto land by robots of branches. The nuisance must cause material damage to the claimant’s land, in order for the defendant to be held liable.
       • 1. Unreasonable use of land by the Defendant, leading to an…
       • 2. Unreasonable interference with the Claimant’s enjoyment/use of their own land
       • 3. Test of Reasonableness
         • Intensity
           • Per Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] Long Interferences are deemed unreasonable, whereas a one-off interference may only be considered unreasonable if they cause physical damage to the land.
         • Nature of the Locality
           • Per Sturges v Bridgman [1879] ‘where anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’ . The character of a locality and the levels of peace and quiet may change over time, Gillihgham Borough Council v Medway (Chatham) Dock Co Ltd [1993] however, the granting of planning permission does not amount to a defence to nuisance per Wheeler v JJ Saunders [1994].
         • Duration
           • Prolonged Building Works may pass the test of reasonableness if these are carried on with reasonable skills and care and the interference of the work with the claimant’s enjoyment of the land is minimised per Andreae v Selfridges and Co Ltd [1938].
         • Sensitivity
           • If the claimant experiences interferences another person would not experience, the interference would not amount to nuisance per Robinson v Kilvert [1889] as a claim in private nuisance will only stand where it is proved that a claimant of ordinary sensitivity would have suffered the nuisance that the claimant is suffering, thus allowing the claimant to recover for his full losses per McKinnon Industries Ltd v Walker [1951].
         • Public Utility
           • Planning Interest is irrelevant to the question of private rights and therefore will not be a matter for consideration in private nuisance, however, if a claimant is using their land for a use which is useful to society, then it is more likely that the courts will consider the interference as a serious one per Smith v Giddy [1904].
         • Malice
         • Nuisance and Fault
           • Private nuisance, as an unlawful interference, requires an unreasonable use of land by the defendant which leads to an unreasonable interference with the claimant’s use or enjoyment of their own land. This requires a balancing exercise of competing rights often referred to as the principle of give and take. Unreasonable interference alone is insufficient per London Borough of Southwark v Mills. Per, Walter v Selfe [1851] An unlawful interference must be substantial and not merely a fanciful complaint as a trivial interference cannot be a nuisance. The Court will ask if D’s conduct unlawfully interferes with the Claimants use of his land not merely according to the elegant and dainty habits of living, but according to plain and sober notions among the people.
       • 4. Unreasonable user causing unreasonable interferences

4. Remedies:

   • Damages: Damages may be recovered where property has been damaged, usually the cost of replacement or repair, whichever is less. However, damages for loss of amenity, are more difficult to assess as the basis of assessment is the diminution of amenity value of the land. The actual impact of the nuisance upon the occupier, the size/value of the property and expert evidence are relevant.
     • Dobson v Thames Water utilities [2009] – If the house is unoccupied throughout the time of the [transitory] nuisance, has suffered no physical injury, loss of value or other pecuniary damage, and would not in any event have been rented out, we are unable to see how there can be any damages beyond perhaps the nominal.
       • Hunter v Canary Wharf [1997] – Damages awarded for nuisance, where there has been personal discomfort, are assessed on the basis of compensation for diminution of the amenity value of the land. Damages for diminution of amenity value are measured by reference to the size, commodiousness and value of the property, but not the number of occupiers
         • Damages are not the primary remedy but they may be awarded either in addition to or in substitution/lieu of injunction or specific performance.
           • Shelfer v City of London Electric Lighting Company [1895] – Damages in lieu of injunction may be given provided that: D’s injury to C’s legal rights is small .The injury is capable of being estimated in money . The injury can be adequately compensable by a small sum; The case is one in which it would be oppressive to D to grant an injunction.
             • Miller v Jackson [1977] – The public interest should prevail over the private interest.
               • Kennaway v Thompson [1981] – In cases of continuing actionable nuisance the jurisdiction to award damages ought only to be exercised under very exceptional circumstances, and the public interest in continuing the activity constituting the nuisance did not prevail over private interest in obtaining an injunction.
                 • Dennis v MOD [2003] – Buckley J: Whilst public benefit could not be used to justify conduct which would otherwise be a nuisance, it may be relevant to determining the remedy that should be granted.