private nuisance

• A private nuisance is an interference with a person’s enjoyment and use of his land. It is a civil action. There are three key elements to private nuisance : the claimant must have interest in the land, there must be an unreasonable use of the land which is the source of the nuisance and the claimant must suffer some harm or loss. 
• There must be an interest in the land meaning the person must own or have right over the land.  This is seen in Khorasandjian V Bush where the daughter of the property owner tried to obtain an injunction against a man who was harassing her and she was given an injunction. It was decided that in this day and age, interest in the land was not needed. However, this was overruled by Hunter V Canary wharf which also stated that not all annoyances are a private nuisance.
• There must be unreasonable use of the land as judges have to balance the rights of the claimant and defendant when deciding if there has been a nuisance (article 8 - a right to a private life). There are many factors when deciding if there is unreasonable use of the land. : 

  1. sensitivity of claimant
  2. duration
  3. character of the area
  4. type of damage
  5. malice
• Sensitivity

  One factor is the sensitivity of the claimant. The standard of tolerance is that of the reasonable person and ordinary land use meaning abnormally sensitive claimants or using land for an unusual purpose that makes it sensitive to disruption is unlikely to succeed in a claim. This is seen in the case of Robinson V Kilvert where there was no private nuisance as the claimant was deemed to be abnormally sensitive as he wanted the defendant to stop putting his heating on as it was ruining the claimants special brown art paper.
• malice

  Another factor is malice of the defendant which is likely to lead to a successful action in private nuisance. This is seen in the case of Hollywood fox farm V Emmett where the claimant was entitled to an injunction and damages for private nuisance as although it was not unreasonable for the farmer to use a shotgun on his own land, but the defendant acted with malice.
• time and duration

  Another factor is time and duration which can determine whether a private nuisance has been created. In Halsey V Esso, the high court held that a private nuisance had been created by the noise at night from boilers and road tankers.
• character of the area

  Planning permission may be relevant but it doesn’t give immunity to being sued. Extensive planning permission will change the character of the area as seen in Wheeler V Sounders (explain) It was held that planning permission does not authorise the creation of a private nuisance.Furthermore, damage caused means the character of the area becomes irrelevant as seen in the case of st helen smelting where it was held that although character of the area is important, it does not prevent a successful action when damage is caused.
• Character of the area pp case

  Wheeler V Sounders - where a nuisance was created by the granting of planning permission for the building of two new pig houses. It was held that planning permission does not authorise the creation of a private nuisance.
• The claimant must suffer harm as seen in cambridge water where it was stated that harm must be foreseeable which confirmed the test in wagon mound.
• 3 elements of private nuisance

  1. interest in the land
  2. unreasonable use in the land
  3. claimant must suffer harm or loss