Private Nuisance

Private Nuisance

1. any continuous activity or state of affairs causing a substantial and unreasonable interference with c's land, or his enjoyment of that land

   • Bamford v Turnley

2. claimant

   • must have propreitary interest in the land
     • not sufficient to be spouse/child of such
       • Malone v Laskey
         • wife injured when cistern fell on her due to vibes
     • Hunter v Canary Wharf
       • many of the 700 failed as no prop int in land
       • confirmed in Dobson v Thames Water

3. defendant

   • creator of nuisance, even if not occupier
     • Thomas v NUM
   • occupier of land from where nuisance originated
     • Leakey v National Trust
       • mound of earth collapsed
     • not liable if nuisance caused by
       • independent contracters
         • unless nuisance is reasonably foreseeable consequence of what occ. asked them to do
         • Matania v National Provincial Bank
           • liable for excesive noise and dust in building works
             • people expected to put up with a certain amount of disruption
           • music teacher was unable to earn living whilst contracters worked
       • previous occupiers
       • trespassers
         • unless occupier adopted/accepted nuisance by failing to abate it
           • Page Motors v Epsom
           • Sedleigh-Denfield v O'Callaghan
             • d hadn't taken steps to abate leaky pipe laid by LA
       • natural condition of the land
         • unless occupier knew and did nothing to abate
           • Goldman v Hargrave
           • but will not be liable if cost of abating is too onerous
             • Holbeck Hall Hotel v Scarborough BC
     • landlord only liable is he created or authorised nuisance
       • Tetley v Chitty
         • landlord liable for knowingly leasing premises to go kart club
       • Coventry v Lawrence
         • landlord could be liable if authorised, direct participation or leasing in circumstances where high probability that particular nuisance would happen

4. indirect interference

   • not through trespass
   • something originating on d's land must intefere with c's land
     • Bernstein v Skyviews
   • examples
     • noise and vibrations
       • Sturges v Bridgman
     • noise and smells
       • Halsey v Esso Petroleum

5. causing damage

   • damage is an essential component to a nuisance claim
     • inc consequential economic loss but not PEL
   • only reasonably foreseeable damage can be claimed for
     • Cambridge Water v Eastern Counties Leather
     • must be reasonably foreseeable type of damage even if exact way it occurred is not foreseeable
   • cannot claim for PI in private nuisance
     • Hunter v Canary Wharf
   • two types of damage are recoverable
     • property damage
       • eg subsidence caused by tree roots
         • Lemmon v Webb
     • sensible personal discomfort (SDP)
       • interference with c's use or enjoyoment of land
         • smells
         • noise
         • smoke
         • 'anything that affects the senses or the nerves'
           • St Helens Smelting v Tipping
         • cause of interference must be actively emitted
           • passive blocking of TV signals was not SDP
             • Hunter v Canary Wharf
       • more than fancical and materially intefere with ordinary human comfort
         • Walter v Selfe
     • St Helen's Smelting Co v Tipping
   • must be more than de minimis (trivial)
     • Mitchell v Darley Main Colliery

6. which is unlawful

   • unlawful = unreasonable
     • an objective standard
       • a question of give and take / live and let live in circumstances of everyday life
         • Bamford v Turnley
       • balance between rights of d and c to enjoy their land
         • Sedleigh-Denfield
   • liability is strict
     • if use is reasonable, d will not be liable for any consequential harm
     • if unreasonable, d still liable even if exercised reasonable care / skill in trying to avoid harm
   • factors to consider in deciding what is unreasonable
     • character of neighbourhood
       • Sturges v Bridgman
         • factory held to be unreasonable in residential area
         • what would be a nuisane in Belgrave Square would not necessarily be so in Bermondsey
       • character of area can change over time
       • granting of planning permission may alter character of a neighbourhood
         • Gillingham v Medway
       • not relevant factor for phyiscal damage (only SDP)
         • Helens Smelting v Tipping
       • Laws v Florinplace
         • sleazy men, sex shop in residential area
     • public utility
       • utility will never in itself prevent activity being unreasonable
         • Adams v Ursell
           • fish n chip shop was a nuisance despite benefitting local residents
         • Bellew v Irish Cement
           • the only cement factory in Ireland shut down
         • but may affect remedy awarded
           • eg partial injunction rather than full injunction
             • Dennis v MoD
               • harriers only allowed to fly at certain times
         • Barr v Biffa Waste Services
           • public utility not to be given too much signifnicance
     • time & duration
       • isolated one off incidents not actionable
         • Bolton v Stone
         • Castle v St Augustine Golf Club
         • unless it involves fire
           • Crown River Cruises v Kimbolton Fireworks
             • held to be privaten nuisance but succeeded in neg
             • firework display resulting in fire
       • nuisance must be continuous or regular occurence
       • courts will consider when nuisance occurs, how often, and duration
         • Kennaway v Thompson
           • noise from boat racing and water skiing club
         • Spicer v Smee
           • fire started in bungalow due to defective wiring, which was continual state of affairs even though the fire was a one off
       • mostly for SDP
     • malice
       • malicious actions are always unreasonable
       • where no real justification except to annoy c
       • Hollywood Silver Fox Farm v Emmett
         • firing into the air to force foxes to miscarry
       • Christie v Davey
         • neighbour caused noise nuisance during c's piano teaching
           • injunction
     • unusual / excessive / careless acts
       • usualy unreasonable
         • eg Farrer v Nelson
           • d owned hundreds of pheasants
     • abnormal sensitivity
       • c with abnormal sensitivities cannotv claim for activities that would not intefere with ordinary occupier
         • Robinson v Kilvert
           • heat sensitive paper damaged by neighbouring boiler
         • Morris v Network Rail
           • new traiinline signals interfering with recording equipment, not liable as held to be abnormally sensitive
         • McKinnon v Walker
           • rare orchards, died, but ordinary flowers would have died too so was claimable
     • moving to nuisance
       • immaterial
         • Sturges v Bridgman

7. defences

   • volenti
   • cont neg
   • statutory authority
     • full defence
     • Allen v Gulf Oil Refinery
       • statute authorised refinery. resultant noise and vibrations implied by statute
       • test
         • 1) d must have exercised all due care
         • 2) nuisance caused must be inevitable result of authorised activity
     • planning permission is not statutory authority
       • Wheeler v JJ Saunders
         • pig farm emitting smells preventing use of holiday cottages. planning permission was not a defence
   • 20 years prescription
     • not a defence to argue c moved to nuisance after has been actionable for 20 years +
     • c comes to nuisance and also changes use of land so that d's activities now cause nuisance then this may be a defence
       • Lawrence v Coventry
     • if no action taken after 20 years, defence operable

8. remedies

   • injunctions
     • full or partial
     • commonsense approach
   • damages in lieu of injunction
     • if nuisance is trivial or unpreventable
       • Dennis v MoD
     • damages compensate for actual damage or loss of amenity value for land
       • as in Hunter
   • abatement
     • self help remedy
     • c can enter d's lannd and take reasonable steps to stop nuisance with notice

9. 'good neighbourliness'

   • Southwark LBC v Tanner