Private Nuisance Notes

• Bamford v Turnley:– ‘any continuous activity or state of affairs causing a substantial and unreasonable interference with a plaintiff’s land or his use or enjoyment of that land’

• Must prove damage (not actionable per se) but can be ‘sensible personal discomfort’ as well as actual physical damage

• Must have some duration and must be more than trivial

Who can sue?

• Must have a legal interest in land (possessionary or proprietary – (freehold/leasehold))

• Mere permission to use/occupy is insufficient

• Basis for this is that a claim in nuisance arises from ‘interference with one’s land’

  • Malone v Laskey: land occupied by a manager and his wife was injured – she had no interest in the land and so no right to sue Hunter v Canary Warf

  • Position reaffirmed in

• Scrutiny of the rule after the HRA 1998 – (McKenna v British Aluminium) – issue was whether there was an infringement of A6 and A8

  • Dobson v Thames Water Utilities Ltd – confirmed position in Hunter v Canary Warf – C must have interest in the land to have a right to sue

Who can be sued?

The creator of the nuisance

• Even if not in a position to end the nuisance and even if not the occupier of the land (Thomas v NUM)

The occupier of the land from where the nuisance is taking place

• Can be liable for nuisances created by himself as well as those created by others – responsibility derived from the fact that he has control over the land and the occurrences upon it

• Leakey v National Trust – NT liable for a large mound of earth which it had accumulated on its land, which collapsed onto the C’s neighbouring land – they had been aware of it and did nothing

• Liable for nuisances caused by third parties in exceptional circumstances:

• Independent contractors

  • If occupier has instructed them to perform tasks which cause reasonably foreseeable nuisance: Matania v National Provincial Bank: foreseeable excessive noise and dust caused by contractors altering his property – unusual as building doesn’t usually cause basis of a nuisance claim – people are expected to put up with the ‘live and let live’ in their daily living (Bamford v Turnley)

• Predecessors in title

  • Liable of the successor continued or adopted predecessor’s nuisance

• Trespassers

  • Liable if the occupier adopts the nuisance caused by trespasser

    • Sedleigh-Denfield v O’Callaghan –D used poorly maintained pipe that had been unlawfully put under his land, so liable when it leaked

  • But an occupier may escape liability if he takes reasonable steps to abate the nuisance

• Naturally occurring nuisances or natural condition of the land

  • Law traditionally absolved the occupier from liability

    • But Goldman v Hargrave – PC - occupier liable for naturally occurring nuisance where he knew or ought reasonably to have known of a danger and failed to take reasonable steps to abate it

      • However - a duty to abate is limited: will not be expected to bankrupt himself in the process of abating nuisance naturally occurring nuisance - Holbeck Hall Hotel v Scarborough BC

The landlord

• Not usually be liable for a private nuisance unless he has created it, or authorised it, or knew or ought to have known at the time of letting the property, or if he has expressly or impliedly reserved the right to enter or repair (Lippiatt v South Gloucestershire Council vs. Hussain v Lancaster City Council)

• Tetley v Chitty – Landlord was held liable for leasing premises to a ‘go-cart’ club

Elements of private nuisance

1. Indirect interference

• Sounds, smells, fumes, vibrations etc.

• Sedleigh-Denfield v O’Callaghan – flood of water held to be capable of constituting a private nuisance

• Nuisance starts on the D’s land and then causes damage to some aspect of C’s use/enjoyment of land

2. Damage

• Not actionable per se - must establish that they have endured damage

• Only reasonably foreseeable recoverable (Cambridge Water Company v Eastern Counties Leather)

• Not possible to claim for personal injury in private nuisance (Hunter v Canary Warf)

• HL in St Helens Smelting CO v Tipping – distinguished btw 2 types of damage – (a) physical damage to property and (b) sensible personal discomfort (SPD):

  • ‘the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses or the nerves’

  • Personal damage (Lemmon v Webb – overhanging tree branches causes physical damage)

  • Or SPD – where the senses of the C are affected– ‘amenity damage’ (Horsey and Rackley)

• However – not all interference with the enjoyment value can be claimed– e.g. Hunter v Canary Warf – refused to recognise claim for interference with TV signal – nothing had been emitted from D’s land

3. Unlawful interference

• C must show ‘unlawful interference with his enjoyment or use of the land’ – (Bamford v Turnley)

• ‘unlawful’ – unreasonableness more than illegality

• Cambridge Water Company v Eastern Counties Leather

  • ‘although liability has usually been regarded as strict…if the user is reasonable, the D will not be liable for consequent harm to his neighbour’s enjoyment of his land’

• Sedleigh Denfield O’Callaghan – ‘a balance has to be maintained btw the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with…but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society’: reasonable in a particular context

Factors to be considered for unlawful interference

Factors with ARE relevant

1. Time and Duration

• When the alleged nuisance takes place, how long it continues and how frequently it is repeated: determined with reference to all the circumstances

• No liability for an isolated incident

  • Single incident could be a nuisance if it illustrates underlying state of affairs – Spicer v Smee – fire started in bungalow with defective wiring

  • British Celanese v AH Hunt Ltd: Power cut caused by bits of tin foil (used in...

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