Private Nuisance

• Prima facie, the claimant may be able to make a claim under Private Nuisance. Private nuisance is a tort which attempts to balance conflicting interests in the use of land. It has been defined as 'an unlawful indirect interference with another's use or enjoyment of land coming from neighbouring land.'
• To make a claim, the claimant must have an interest in the land (for example, as a resident or owner) as in Hunter v Canary Wharf and an occasional visitor/guest cannot claim (Malone v Laskey) as well as being affected by the alleged nuisance. There have been challenges to this based on the provisions of the Human Rights Act 1998 Art. 8 respect for private and family life, home and correspondence, however these have not succeeded yet (Marcic v Thames Water).
• It will be necessary to establish that any potential defendant is causing or allowing the nuisance; Tetley v Chitty. The defendant does not have to have an interest in the land to be sued. Where the defendant didn't create the nuisance, but they have adopted it (Sedleigh Denfield v O'Callaghan) or it was caused by natural causes that the owner was aware of but failed to deal with (Leakey v National Trust) then they will also be responsible.
• The first element of private nuisance that needs to be satisfied is that the interference must be unlawful. This does not have to be criminal but the court will consider if 'in all the circumstances, it is reasonable for c to have to suffer the particular interference.'
• The interference must also be indirect. The law of nuisance accepts a wide range of indirect interference such as fumes, noise, smoke, smells and vibrations from machinery (St Helens Smelting v Tipping). Feelings of emotional distress are protected (Thompson-Swhwab v Costaki) but a right to light, right to a view or right to a t.v signal are not (Hunter v Canary Wharf).
• Private nuisance involves balancing the competing interests of the claimant and the defendant. To assess this, the court will consider the factors of reasonableness.
• The locality or character of the area, is a relevant factor to consider, as stated by Thesiger LJ in Sturges v Bridgman, 'what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.'
• Laws v Florin Place - held that a sex shop was unsuitable in a residential area.

  However, as illustrated in St Helens Smelting Co v Tipping - where there is physical damage to property then the locality principle has no relevance.
• The duration of the nuisance is another factor to consider. The interference is more likely to be considered a nuisance if it lasts a long time rather than for a temporary period although there are exceptions to this (Crown River Cruises v Kimboltan Fireworks) or if it occurs during unsociable hours at unreasonable times (e.g. late at night, early mornings, weekends) as illustrated in Halsey v Esso Petroleum.
• The claimant's sensitivity must be considered as if their use of his land (e.g keeping rare fish) is considered too sensitive, then the D's use of land will not be unreasonable (Robinson v Kilvert). However, the law is now moving away from considering the idea of 'abnormal sensitivity' to a more general test of foreseeability (Network Rail v Morris).
• Additionally, malice must also be considered. If the interference has been done deliberately (on purpose) then this is likely to be regarded as unreasonable (Hollywood Silver Fox Farm v Emmett/ Christie v Davey).
• A final factor to consider is social benefit. The C may not succeed if the D's use of land is socially useful and benefit the community as in Miller v Jackson where a cricket club was said to be of social benefit whereas in Adams v Ursell a fish and chip shop was not socially useful.
• If the interference is unreasonable then there are a number of defences the D can argue including; prescription, 'coming to the nuisance' and statutory authority.
• Prescription applies to nuisance and gives a defence if the nuisance has been ongoing continuously for over 20 years of which the C was aware and without complaint from the C (Sturges v Bridgman).
• However, it is no defence to say that the C 'moved to the nuisance' (Miller v Jackson) which means volenti (where the C has consented to the nuisance by moving next to it) will not succeed in nuisance.
• Statutory authority may also be a defence if the nuisance was authorised by an Act of Parliament (Allen v Gulf Oil Refining). This can include the granting of planning permission if it changes the character of the area (Gillingham BC v Medway Dock) but not if it does not (Wheeler v Saunders).
• More recently, the Supreme Court has considered private nuisance in Coventry v Lawrence and set out the following rules:

  • Sturges v Bridgman still applies so the C cannot say they came to the nuisance.
  • If the C changes their use of their property after D's nuisance began then this may also fail the defence of coming to the nuisance.
  • If stopping the nuisance would mean people lose their jobs, the courts will consider damages as a remedy rather than an injunction.
• If the defendant is liable then the court has the following remedies available; injunctions, damages and abatement.
• An injunction is a court order that forces the D to stop a certain activity or make them do something. A partial/limited injunction can be granted, limiting part of the activity or the timing of it as in Kennaway v Thompson where speedboats, but not all boats, were banned from a lake.
• The courts use the 'Shelfer' test and damages only awarded instead of an injunction where; injury to the C's rights is small, the C can be compensated by money, a small payment is adequate and it would be unfair to grant an injunction.
• Finally, abatement is a possible remedy where the C can go onto the D's land to prevent further nuisance by, for example, chopping down over-hanging branches but these do need to be given back to the defendant.
• In conclusion (apply if the D is liable or not, if liable, what would the successful remedy be).