Private Nuisance Notes

• Introduction

  - Nuisance: unlawful activity that is harmful/noxious + which interfered with another person’s rights, use or enjoyment of their land – Read v J. Lyons [1947].

  - 3 related torts: unreasonable use of d’s land damage/loss to another.

  • 1. private nuisance: most significant.

  • 2. public nuisance: also crime.

  • 3. rule in Rylands v Fletcher.

  - Private nuisance: any continuous activity or state of affairs causing substantial + unreasonable interference with c’s land or c’s use/enjoyment of that land – Bamford v Turnley [1862].

  • not actionable per se: c. must prove damage – actual property damage or sensible personal discomfort.

  Parties

  Who Can Sue?

  - C. must have proprietary or possessionary legal interest in land – Hunter v Canary Wharf Ltd [1997; HoL].

  • rationale: basis of tort is interference of use/enjoyment of land c. must have interest.

  • licence insufficient – Malone v Laskey [1907]: land occupied by tenant’s employee + employee’s wife; wife injured by falling cistern (made loose by d’s activity next door) no right of action (wives: no legal interest in 1907).

    • but blip: Khorasandijan v Bush [1993; CoA]: child allowed to sue (for harassment) overruled by Hunter – now covered by Protection from Harassment Act 1997.

  - Human rights challenge to requirement c. have interest in land.

  • McKenna v British Aluminium [2002]: breach of Art 6 (right to fair trial) + Art 8 (right to respect for family life)?

  • but: Dobson v Thames Water Utilities Ltd [2009; CoA]: Hunter v Canary Wharf confirmed need interest.

    • but solution: if no interest, can bring claim under human rights law directly – Art 8.

  Who Can Be Sued?

  - Creator of nuisance: liable even if not in position to end nuisance / not occupier – Thomas v NUM [1986]: NUM encouraged miners to picket highway liable.

  • but practical difficulties: may be difficult to find.

  - Occupier: liable for nuisances created by self + others (has control over land) usual d. – BUT EXCEPTIONS:

  • 1. independent contractors: unless c. authorises contractor to perform certain tasks + tasks cause reasonably foreseeable/inevitable nuisance – Matania v National Provincial Bank [1936]: building contractors cause excessive noise + dust occupier liable.

    • but N.B.: building work usually NOT nuisance – part of ‘give + take’ of daily life.

  • 2. previous owners: unless c. continued or adopted nuisance.

  • 3. trespassers: unless c. continued or adopted nuisance – Sedleigh-Denfield v Callaghan [1940]; or fails to abate – Page Motors Ltd v Epson and Ewell BC [1982].

    • but: if c. takes reasonable steps to abate no liability.

  • 4. act of nature / natural condition of land: unless d. knew + failed to take reasonable steps to abate – Goldman v Hargrave [1967; PC].

    • Leakey v National Trust [1980]: earth mound accumulated on d’s land + capsized onto c’s land; d. aware + took no steps to prevent d. liable.

    • but: duty to abate subject to means of occupier not expected to bankrupt self – Holbeck Hall Hotel v Scarborough BC [2000]: part of c’s hotel collapsed because of coastal erosion d. not liable: could not afford to prevent erosion, had done reasonable checks.

  - Landlord: generally NOT liable, unless: created/authorised, knew/ought to know, reserved right to enter + repair.

  • Tetley v Chitty [1986]: d. leased to ‘go-kart’ club with full knowledge liable.

  • Southwark LBC v Mills [1999]: noisy council tenants; c. sued council not liable: d. did not deliberately choose noisy tenants.

  - Party in control: Jones Ltd v Portsmouth CC [2002]: d. in charge of land (but did not own) liable.

  Elements

  - 3 elements to private nuisance:

  • 1. indirect interference: with use/enjoyment of land (cf. trespass: direct interference).

  • 2. damage: physical injury to property or interference with enjoyment.

    • remoteness: reasonable foreseeability test – Cambridge Water Co v Eastern Counties Leather [1994].

  • 3. unlawful interference: i.e. unreasonable – question of ‘give + take’ / ‘live + let live’ – Bamford v Turnley [1862].

    • objective test: reasonable man / sensible person discomfort.

  Indirect Interference

  - Indirect interference with use/enjoyment of c’s land.

  • not direct: trespass – Bernstein v Skyviews [1978].

  • indirect interference: nuisance starts on d’s land, then damage to some aspect of c’s use/enjoyment of his land.

    • e.g. sounds, smells, fumes, vibrations.

    • e.g. flood of water – Sedleigh-Denfield v O’Callaghan [1940].

  Damage

  - Nuisance not actionable per se: c. must prove damage – 3 types.

  - 1. actual damage to property.

  • Lemon v Webb [1895]: overhanging tree branches damaged c’s land.

  - 2. sensible personal discomfort: anything that discomposes or injuriously affects senses/nerves – St Helen’s Smelting Co v Tipping [1865] – e.g. health, comfort, convenience: noise, smoke, smells etc.

  • St Helen’s Smelting Co v Tipping: fumes from d’s factory physical damage (trees/shrubs) + SPD.

  • Leeman v Montagu [1936]: cockerels crowing excessively d. liable.

  • people can be a nuisance:

    • Laws v Florinplace Ltd [1981]: d. opened sex shop in Pimlico customers a nuisance.

    • Page Motors Ltd v Epsom and Ewell BC [1982]: gypsies trespassing on council land; damaged c’s neighbouring business; d. knew + did not abate nuisance.

    • Lippiatt v South Gloucs CC [1999]: group of travellers on d’s land nuisance.

  • NOT interference with recreational facilities (inc. TV/radio reception):

    • Bland v Moseley [1578]: d. built on land, blocking c’s view not nuisance – view = ‘thing of delight’.

    • Bridlington Relay v Yorks Electricity Board [1965]: d. installed sub-power station, interfered with c’s reception not nuisance.

      • rationale: nothing emanating from d’s land to interfere with c’s land; merely blocking.

    • vs. other jurs: Nor-Video Services Ltd v Ontario Hydro [1978; Can]: blocking reception = nuisance.

    • Hunter & Ors v Canary Wharf Ltd [1997; HoL]: building of Canary Wharf interfered with cs’ reception old position reaffirmed – not nuisance (planning law: better avenue for complaint).

  • N.B. personal injury NOT...

Buy the full version of these notes or essay plans and more in our GDL Tort Law Notes.