Private Nuisance

• [Defendant] may be liable for an action under private nuisance against [claimant]. Private nuisance is defined as an unlawful, unreasonable, interference with a person’s use or enjoyment of land.
• There are two main types of private nuisance; the first being loss of amenity nuisance which may be caused by noise, smell, smoke etc. Apply if relevant- what is the nuisance? The seccond being material damage; when a dangerous state of affairs on defendant’s land causes significant physical damage to the claimant’s land. Apply if relevent
• The claimant must have an interest in the land; this includes being a owner or tenant but, not a member of the owner’s family such as a child who has no legal interest in the property. This is the proprietary right and was established through Hunter V Canary Warf. Apply
• The focus of a nuisance action is on the reasonableness of the interference caused to the claimant and not wether the defendant took reasonable care- defendant is at fault because there is some unreasonable interference. Within Cambridge Water, Lord Goff stated that ‘the fact that the defendant has taken all reasonable care will not in itself exonerate him’. OIR A defendant can also be liable where the nuisance is a result of natural causes which he is aware of but fails to deal with. Shown in Leakey V National Trust Apply
• There are two main elements to a claim of private nuisance and within these, there are multiple factors that need to be taken into account. The first element is the unlawful (unreasonable) use of land. Firstly, we look at the locality factor and wether the character of the neighbourhood changes. OIR Leman V Montague Loss of amenity, interference was unreasonable. OIR St Helen’s Smelting for physical damage, location is irrelevant. Apply relevent.
• Next is the duration of the nuisance- the more long lasting, the more unreasonable the interference will be. Show in De Keyser’s Royal Hotel. However, a temporary one-off interference can amount to a nuisance too. Shown in Crown River Cruises. Apply
• Next is the seriousness of the interference and this measures the discomfort or inconvenience and physical damages. For discomfort or inconvenience, it must be seen as reasonable and for a claim, it must be extreme or excessive, established through Leman Apply
• OIR For sensitivity of the claimant, the defendants actions must be something which would affect an ordinary person; abnormal sensitivities are ignored. Shown in Network Rail Apply
• OIR For motive and malice of the defendant, established in Christie V Davey, a deliberately harmful act will normally be unreasonable and therefore a nuisance. Apply
• OIR If the nuisance is for social benefit, established through Miller V Jackson, if it is considered that the defendant is providing a benefit to the community, the courts may consider their actions reasonable- the courts have to balance the conflicting interest of neighbouring owners. Apply
• The second element is the leading to an indirect interference with the claimants use or enjoyment of land- this is done indirectly otherwise it would be trespass. Shown in OIR Leeman for loss of amenity or OIR St Helens Smelting for physical damage. Apply
• Defences:

  OIR coming to the nuisance is not a defence. Shown in Lawrence V Fen tigers
• OIR statutory authority- if authorised by parliament, a person cannot claim. Shown in Hammersmith and city railway
• OIR planning permission- only a defence if it changes the character of the neighbourhood. In Gillingham council, the change was allowed therefore no nuisance. In Wheeler V Saunders the nuisance didn’t change the character of the neighbourhood therefore no defence.
• OIR prescription- if nuisance has been tolerated for 20+ years, it will become legal.
• Remedies:

  • injunctions- awarded when damages are not a satisfactory result (balancing conflicting interests). Established in Kennaway V Thompson, limiting injunctions are available and can be tailored to each case. Apply if relevent
• • Abatement- claimant is entitled to take steps to alleviate the nuisance. Shown in Lemon V Webb apply if relevent