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Private Nuisance Who can sue for Private Nuisance?
You can still claim even if you "come to the nuisance" o St Helen's Smelting Co v Tipping (1865):
? Damages can be claimed for nuisance prior to acquisition of land (i.e. "coming to the nuisance") [EVEN IF it is already know of]
o Miller - cricket balls kept flying into C's back garden which they'd recently bought, despite a high fence being erected
? Lord Denning (dis):
C should move elsewhere; cricket was a public good, and it was important to conserve the playing fields against development.
The rule in Bliss applies here - the fact someone has come to a nuisance is not a defence, no matter how much utility there is in D's activities o HOWEVER bear in mind Hunter
? Lord Hoffmann:
Damage is assessed as if an estate agent valued the difference between the right to occupy a house without the nuisance and the right to occupy one with it
? Therefore, it is likely that if the new person has come to the nuisance, then if they've obtained a discount from the purchase price,
they don't necessarily have any actionable damage if the nuisance has stayed the same.
You need a proprietary interest in the land in question o Khorasandijian v Bush :
? Dillon LJ: court should reconsider earlier decisions in light of changing conditions
And hold that even those without proprietary interest in the land can bring claims for nuisance o Approach rejected in Hunter v Canary Wharf Ltd :
? Lord Goff:
Court of Appeal in Khorasandjian v Bush tried to extend this principle to where person in question has an "occupancy of substantial nature" o Problem = CoA trying to give legs to tort of harassment by backdoor of tort of nuisance
? No longer necessary - statutory recognition given (tort of harassment instead) o Claim based on misunderstanding that licensee was entitled to sue, when no such claim exists in law.
? Lord Hoffmann
Nuisance is not founded on personal discomfort o Is it founded upon an injury to the land itself (although this may not manifest itself physically)
? This injury is then what causes the diminishing of enjoyment of the land
Thus, if you don't have an interest in the land
o Then you can't surely claim from an injury to land you don't have possession over. Lord Cooke (dis):
Article 8 seems to give some support to notion that proprietary rights are irrelevant considerations
Definition of occupier routinely changes o Can be an invitee, tenant, licensee etc.
? If merely a guest, than should not receive support
? But what if lives their permanently?
Old law said that sons could claim if living legally in father's house o From nuisances which are so noxious and long-continued
? so as to materially affect his wellbeing
What does this include?
o E.g. tenant, landowner, grantee of easement, profit a prendre or right to exclusive possession.
? But not member of landowner's family, guest, lodger or employee.
? Lord Goff in Hunter
It is however established that if C has actual occupation, he need not prove title in order to sue under private nuisance. o Pemberton v Southwark LBC (2000): C, a secure tenant, defaulted on the lease but was allowed to stay, provided that she paid something towards the rent, with the status of 'tolerated trespasser'. C's flat was invaded by cockroaches from the common parts of the building, which was the council's responsibility.
C's exclusive right to occupy the premises sufficed to bring it within the scope of nuisance, and Hunter was distinguished in this context.
? Yandle: the tort was viewed as a social right, to protect vulnerable people such as 'tolerated trespassers' like the claimant.
Infiltration of the ECHR? Will the ECHR break down Hunter completely?
Can those with proprietary interests claim on behalf of others?
o Hunter v Canary Wharf Ltd :
? Lord Lloyd
If the occupier of land suffers personal injury as a result of inhaling the smoke, may have a cause of action in negligence. o But he does not have a cause of action in nuisance for his personal injury,
? nor for interference with his personal enjoyment.
Thus quantum of damages in private nuisance does not depend on the number of those enjoying the land in question o It also follows that the only persons entitled to sue for loss in amenity value of the land
? are the owner or the occupier with the right to exclusive possession
? Lord Hoffmann
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