Tort connected to land

• People have a right to do what they want to do in their own home provided it is reasonable and doesn’t annoy their neighbours. Tort law provides a claim if the actions are unreasonable. Such as a person who is loudly playing music at 3am.
• There are two types of nuisance. Public nuisance and private nuisance.
• What is public nuisance?


  Public nuisance refers to an act or condition that interferes with the rights and comfort of the general public. Remedy is usually an injunction
• What is private nuisance?

  • Affects an individual
  • Remedy is damages
  • An interference with one’s enjoyment
• Statute has made actions a nuisance in some areas (e.g. protection of the environment) a

  criminal offence. Cases like this are likely to be prosecuted in criminal courts.
• For a successful private nuisance claim, the interference can be indirect

  (Halsey v Esso Petroleum) such as smoke, a smell or noise.
• It can be direct interference, such as roots from a tree of a neighbouring

  property causing damage to your property’s foundations.
• If there is physical damage then it is likely to be a nuisance (St Helens v

  Tipping). This would be a Prima Facie nuisance
• There can be no claim for personal injury under private nuisance (Malone v Laskey).
• The Claimant

  1. C must have an interest in the land e.g. owner or tenant
  2. Their use or enjoyments of the land affected by the interference.
• Traditionally, a member of the owner’s family cannot claim if they don’t have an ‘interest’ (Hunter v Canary Wharf). However, if the owner was affected too he could claim on their behalf.
• McKenna v British Aluminium – children who were affected by the fumes and smells, but had no interest in the land, were able to claim as the nuisance breached Article 8 Human

  Rights Act 1998 (the right to protect family life at home).
• The Defendant

  1. D is the person who is causing or allowing the nuisance.

  • D cannot have to have an interest in the land e.g. a member of the owner’s family.

  • This could be a local authority as in Tetley v Chitty.

  • The occupier can still be liable even if they did not create the nuisance but they fail to deal with it. This could be something that a trespasser or the previous owner did as in Sedleigh Denfield v O’Callaghan.

  • The nuisance could even be from natural causes:

  Leakey v National Trust
• Laws v Florinplace Ltd – residents were able to claim nuisance when shops, houses and restaurants in the area were converted into sex shops.
• In establishing ‘reasonableness’, the courts will look at a variety of factors:

  • locality
  • Duration of nuisance
  • Sensitivity of the claimant
  • Malice
• Locality: The type of are will be considered, such as city or rural areas to see reasonableness of nuisance. The courts will consider if the area has changed over time (Kennaway v Thompson)
• Duration of the interference:

  • In order for it to be unreasonable, the interference usually needs to be continuous and at unreasonable times of the day.

  (Crown River Cruises Ltd v Kimbolton Fireworks Ltd)
• Sensitivity of the claimant

  • It is not reasonable for D to be liable if C is particularly sensitive.

  • The courts will now look at the foreseeability of the interference. (Network Rail Infrastructure v Morris)
• Malice:

  • A deliberately harmful act will normally be considered unreasonable behaviour.

  (Hollywood Silver Fox Farm v Emmett)
• Defences:

  1. Prescription

  • If the action has been carried on for at least 20 years and there has been no complaint between the same parties in that time, then D may have a prescriptive right to continue (Sturges v Bridgman)
• Defences:

  • Consent (or volenti) is a full defence. If the claimant is found to have consented to the nuisance, then there is no liability on the part of D and the claimant will not receive any damages.
• Defences: Moving to the Nuisance (ALWAYS FAILS)

  • D may argue that C is only suffering the nuisance as they have moved closer to the alleged problem/into the area (Miller v Jackson). This argument is not a defence!
• Defences:

  4. Social benefit

  • If it is considered that the D is providing a benefit to the community, the court may consider the action as reasonable. (Miller v Jackson)
• Defences: Statutory Authority

  • Statutory authority is likely to be one of the most effective defences as many of the activities that can amount to a nuisance are now regulated or licensed by environmental or other laws.

  • So by passing the law Parliament has essentially allowed that nuisance to happen as in

  (Allen v Gulf Oil Refining.)
• Defences:

  Planning permission

  Local authority planning permission cannot be an absolute defence as seen in Coventry v Lawrence which stated it is no more than evidence. However, if the character of the

  neighbourhood does change following the permission this could lead to the nuisance being considered as reasonable. (Gillingham Borough Council v Medway (Chatham) Dock Co)
• Remedies:

  • Injunctions: Ordering D to stop
  • Abatement
  • • This involves entering the D’s premises in order to prevent further nuisance.