Private nuisance

• Introduction


  Definition

  • "Unlawful (unreasonable) indirect interference with a person's use or enjoyment of land"

  2 types:

  • Loss of amenity (noise, smell, vibration, smoke)
  • Material damage nuisance - dangerous state of affairs on lands causes significant physical damage

  Parties to an action

  • Claimant must have an interest in the land (owner or tenant, but not family member)
  • Hunter v Canary Warf

  Focus:

  • Reasonableness of interference - Cambridge Water - Reasonable care is irrelevant
  • IF RELEVANT: Natural causes that defendant fails to deal with - Leakey v National Trust
• Unlawful use of land

  Locality

  • Character of neighbourhood - Residential/commercial - Leeman

  Duration

  • Longer, more likely to be unreasonable - De Keyser's Royal Hotel
  • Temporary or one off can amount to a nuisance - Crown River Cruises

  Seriousness

  • If discomfort, must be extreme or excessive - Leeman

  Abnormal Sensitivity

  • Ignored - Heath v Mayor of Brighton
  • If foreseeable, D can be liable - Network Rail Infrastructure

  Motive and Malice

  • Christie v Davey - Deliberately harmful act is unreasonable behaviour

  Social benefit

  • Miller v Jackson - Benefit to the community is reasonable
• Leading to an indirect interference


  Must be indirect as a direct interference would be a trespass

  • Fumes
  • Loud noises
  • Vibrations from industrial machinery
  • Fire
  • Pollution from river
  • Leeman v Montague
• Claims


  Physical damage to land

  • Example: Fumes from a factory killing flowers

  Loss of Amenity

  • Example: Unable to get a good nights sleep due to bad smells
• Defences


  Statutory Authority

  • Hammersmith v Brand - Activities done by a public body operating under an Act of Parliament, C won't be able to sue as it is authorised

  Planning Permission

  • Gillingham Council v Medway - Permission from a local authority may provide a defence (lawful justification)
  • BUT: Wheeler v Saunders - Can only be a defence if it changes the character of the neighbourhood

  Prescription

  • If tolerated for 20 years, will become legal

  Come to the nuisance - NOT A DEFENCE

  • Miller v Jackson - If C moves to where the nuisance is, D can still be liable
• Remedies


  Injunctions

  • Discretionary court order which forces D to stop nuisance and restrain from any further nuisance
  • Given when damages are not a satisfactory remedy
  • Kennaway v Thompson
  • Court may refuse injunction if not in public interest - Miller v Jackson
• Damages


  Remoteness Test - Wagon mound

  Special/General damages can be claimed

  Abatement - C entitled to take steps to alleviate nuisance - Lemmon v Webb