Private nuisance:

• •An unwanted, continuous and indirect interference with the claimant’s reasonable use and enjoyment of their land. 

  •What is unreasonable depends not so much on the behaviour of the defendant, but on whether or not the interference caused is sufficient to give rise to a legal action. 

  Usually, but not always, unreasonable behaviour involves adjoining properties. 
• Who can make a claim?

  •Any Claimant who has the use and enjoyment of the land and is affected by the nuisance can claim (e.g. owner/ tenant)

  •The claimant must have an interest in the land – if you have no legal interest in the property you cannot claim. 

  •Hunter V Canary Wharf 1997
• What amounts to a nuisance?

  •Interference is not enough. The defendant’s activity has to amount to ‘unlawful’ use of land (not illegal, but unreasonable)

  •Smells – from a farm or fish and chip shop, Adams v Ursell 1913

  •Fumes drifting over neighbouring land – Halsey v Esso Petroleum 1961

  •Noise – Coventry v Lawrence 2015

  •Sex shop – Laws v Florinplace Ltd 1981

  Natural ‘accidents’ – Leakey v National Trust 1980
• How do we know what unreasonable interference is?

  •This tort is all about balancing the competing interests of the claimant and the defendant, so the court will take into account various factors to decide whether or not the use of neighbouring land is reasonable.

  Duration of the interference- to be actionable likely to be continuous and at unreasonable hours of the day. 
• •Crown River Cruises V Kimbolton Fireworks 1996-firework display lasting 20 min was a nuisance.

  The fact that the interference is only temporary is not a sufficient reason to avoid a claim if it is an unreasonable interference with the claimants use and enjoyment of land. 
• Locality - Character of the neighbourhood will be considered (e.g. quiet/industrial/city/village etc)

  Sturges V Bridgman (“what would be a nuisance in Belgrave Square would not be in Bermondsey”)

  The court will consider if the area is:

  Purely residential

  Partly residential and commercial or industrial

  Situated in town or country

  Has changed in character over time
• • Sensitivity of claimant – If it can be proved that the claimant is particularly sensitive then it may not be a nuisance.

  •Moving away from the idea of ‘abnormal sensitivity’ (Robinson V Kilvert 1889 –

  To general test of foreseeability – Network Rail Infrastructure v Morris (2004)
• Malice:

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

  •Christie v Davey (1893)

  •Hollywood Silver Fox Farm v Emmett (1936)

  •Miller v Jackson (1977)

  EXCEPTION – If the defendant’s actions are taken as benefiting the community, the court may consider the action reasonable. Adams v Ursell (1913)
• Who may be sued?

  •The person who causes the nuisance or the successor who has allowed the nuisance to continue. 

  Bybrook Barn Garden Centre Ltd v Kent County Council (2001)

  Leakey v National Trust (1980)
• Tetley v Chitty – (1986) - The defendants were operating kart racing track on the premises that were owned by the local council. The local authority was aware of the purpose that the premises were to be used.

  The defendant does not have to have an interest in the land from which the nuisance is coming.  A short-term tenant or family member may be liable - Sedleigh Denfield v O’Callaghan (1940)

  An occupier who knows of a danger and allows it to continue is liable in nuisance, even if s/he has not created the danger him/herself.
• Defences:

  Prescription – unique to a nuisance.  If carried on for over 20 years and no complaint has been made, then the defendant has a prescriptive right to continue - Sturges v Bridgeman (1879)

  Statutory Authority – there are now laws that regulate people’s use of land and can be used as a defence. - Allen v Gulf Oil Refining (1981)

  Local authority planning permissions can sometimes be lawful justifications for a nuisance.
• Defences (Part 2):

  Contributory Negligence – if the defendant can prove that some of the nuisance is the fault of the claimant.  Sayers v Harlow (1958)

  Volenti – claimant gives consent to the activity that causes the nuisance. 

  Nettleship v Weston (1971)
• Remedies:

  •Injunction – common remedy for nuisance.  Order to stop what was causing the nuisance. 

  •Kennaway v Thompson (1981) – injunction was granted to limit the use of a lake close to the claimant’s house, for the racing of motor boats. 

  •Abatement - The Halsbury's Laws of England(1997) description: "Abatement means the summary removal or remedy or a nuisance by the party injured without having recourse to legal proceedings.

  •Form of self-help or removal of a nuisance. 

  Lemmon v Webb (1894)