Private nuisance

Private Nuisance is an unwanted, continuous & indirect interference with the claimant’s reasonable use and enjoyment of their land. It almost always includes competing claims from neighbours 

Who can claim? 

The claimant must have “an interest in the land” (owner or tenant) 

Hunter v Canary Warf – it cannot be a member of the owner’s family such as a child of someone who has an interest in the land. 

Who can be sued (the defendant)? 

The creator of the nuisance; or, the occupier; or, the owner of the land from which the nuisance originates. 

Tetley v Chitty (1986) 

FACTS: local council allowed go-karting.  

HELD: council (the owner) was liable because they let someone cause a nuisance on their land. 

Sedleigh-Denfield v O’Callaghan (1940) 

FACTS:  Monks occupied a land with a ditch which got full of water. Council tried by laying down a pipe which became blocked causing a flood and by this point D knew about the pipe. 

HELD: the monks were liable because they knew of the danger and allowed it to continue. It didn’t matter that they didn’t cause it. 

Leakey v National Trust (1980)

FACTS: Cs land was damaged by natural falls of soil and other debris from the defendant’s land. D was aware of  risks but did nothing to prevent such slides following legal advice. C noticed a big crack appear in the bank above her house and  offered to pay half the cost of making it safe. Her offer was rejected. A few weeks later there was a large fall. 

HELD: The National Trust were liable  for a naturally occurring hazard because they were aware of the danger and failed to act to make it safe.

WHAT DO CLAIMANTS HAVE TO PROVE

1. Interference : WHAT MIGHT AMOUNT TO A NUISANCE 

The interference must be indirect (e.g. noise on one piece of land which affects the people living next door) as opposed to direct interference where the defendant has come onto the claimant’s land. The interference usually needs to be continuous, rather than a one-off.  Examples of interference include:

Smells: 

Adams v Ursell (1913) 

FACTS: C complained about smell coming from a chip shop. 

HELD: Smell can be a nuisance.

TV Reception: 

Hunter v Canary Wharf (1997) 

FACTS: Local residents who lived near the Canary Wharf building in London found that   they no longer had very good television reception, as the building was so   tall, it caused interference. 

HELD:  The Court of Appeal decided  that television reception was not a  right, just as people do not have the right to a view (Bland v Moseley  1587). Therefore, their claim failed. 

General noise / dust / heat / light / vibrations:   

Halsey v Esso Petroleum (1961): 

FACTS:  C claimed that he was kept awake by the noise from trucks constantly moving about in the area he also complained about the smell and damage caused by smoke.

HELD:   The noise and smell were actionable as “materially interfering with the ordinary comfort, physically, of human existence according to the standards of ordinary and reasonable persons living in that area”. 

Natural ‘accidents’ 

Leakey v National Trust (1980) 

(see summary above)

Cliff subsidence (sudden) 

Holbeck Hall Hotel and Another v Scarborough BC (2000) 

FACTS: The claimants owned a  hotel in Scarborough  and the council owned the land between the hotel and the sea. A massive land slip took place on the cliff and the hotel  had to be demolished due to safety concerns. 

HELD: While a cliff subsidence could be a nuisance under the principle in  Leakey v National Trust (1980)   in this case there was no liability because the courts are to take into account the resources of the defendant.  Preventing this issue would have been too expensive and unjust for the council.  

 Sex shop lowering tone & house values

 Laws v Florinplace Ltd (1981)

FACTS:  A shop put up a signs advertising a ‘Sex Centre and Cinema Club’, a nd ‘Uncensored adult videos for sale or available’. The neighbours went to court to ask for an injunction (to force them to take the signs down).
HELD: The court granted the  injunction on the basis that the signs interfered with the comfortable enjoyment of the claimant's properties. 

Noisy neighbours 

Coventry v   Lawrence (2015)

FACTS: The claimants complained about noise generated by motor sports from a stadium which had planning permission for the sport. 

HELD: Noise was actionable but the claim ultimately failed because  the racing track had planning permission so the noise was an established part of the character of the locality (see section on Factors to be taken into account when testing ‘reasonableness’)

Christie v Davey (1893);  

FACTS:  The claimant gave music lessons and often had musical parties at his house. The defendant lived next door and would deliberately bang on the wall, shout   and scream in order to interrupt them. 

HELD:  The claimant got an injunction to stop the defendant making such noises. 

If   the defendant had made a claim against the music teacher instead of making deliberate noises, he may have had an injunction granted to limit the parties! 

2. Damage 

There is no requirement for physical damage to have occurred for there to be a claim in nuisance. Discomfort or inconvenience will be sufficient. However, a claim involving actual physical damage is much more likely to be successful and may allow a claim which would otherwise fail. This is the case as the courts are more likely to consider the interference unreasonable if there is damage (see below).  

St.   Helens Smelting Co. Ltd v Tipping (1865) 

FACTS:  A copper-smelting factory, from which fumes and acid rain were omitted,   caused damage to the claimant’s trees and shrubs. 

HELD:  This claim was successful but it would not have been if there had been no  physical damage due to the locality of the claimant’s land (see below). 

3. Unreasonableness

This requirement in nuisance tries to balance the conflicting interests between the claimant and the defendant. The interference caused by the defendant must be unreasonable for a claim to succeed. Behaviour that goes beyond the normal bounds of reasonable behaviour will be 'unreasonable'. 

Southwark  London Borough Council v Mills (1999) 

FACTS:   The claimant bought a flat in a house that had been converted by the council.   She complained that she could hear the residents of the other flats and blamed the council for not making the flats sound-proof. 

HELD:   The claim failed, as it was not unreasonable for the residents of flats to be able to hear their neighbours making everyday noises. 

Factors to be taken into account when testing ‘reasonableness’: 

Duration 

The courts are more likely to consider a nuisance unreasonable if it lasts a long time or occurs during unsociable hours. In Andreae v Selfridge (1938) the court held that discomfort caused by temporary building work was not unreasonable unless it caused damage (as occurred in Video London Studios v Keltbray Demolition (2001) where rubble caused damage to electrical equipment). However, in Crown River Cruises Ltd v Kimbolton  Fireworks Ltd (1996) a firework display lasting only 20 minutes was considered a nuisance when sparks set fire to a barge. This is an exception to the general rule. 

Sensitivity of claimant

The defendant will not be liable for damage which occurs due to the claimant’s abnormal sensitivity. However, if the nuisance causes damage to the claimant’s use and enjoyment of land, a claim for damage to something abnormally sensitive will be allowed. 

Some examples of this principle: 

Robinson v Kilvert (1889) 

FACTS:  The claimant used the ground floor of a building in order to store paper. In the cellar below, the defendant made cardboard boxes which required the room to be kept warm to dry the glue used in the process. The heat from the cellar damaged the claimant’s paper. 

HELD:   As the heat from the cellar was not unreasonable and normal paper would not   have been damaged, the claim failed. 

However, if the nuisance causes damage to the claimant’s use and enjoyment of land, a claim for damage to something abnormally sensitive will be allowed. 

McKinnon   Industries v Walker (1951) 

FACTS:   Fumes from the defendant’s factory damaged the claimant’s abnormally   sensitive orchids. 

HELD:   The claim was successful as there was also general damage to items that were not abnormally senstive. 

Locality 

The locality of the nuisance may affect the success of a claim. People who live in the country should expect certain noises and smells in the same way that someone who lived in the city would also expect different types of noises. 

Sturges   v Bridgman (1879)  

FACTS:   The defendant owned a confectioner which used machinery to produce its   products. The claimant was a doctor’s surgery who had never been affected by   the noise and vibrations until they built an extension which was used as a  patient’s waiting room. 

HELD:   The claimant was successful as the locality was predominantly residential with many other doctor’s surgeries. The noise from the confectioner was therefore unreasonable although it may not have been if it was a doctor’s surgery in an industrial area. The   judge explained the important of locality with this quote: ‘What   would be a nuisance in Belgrave Square would not necessarily be so in  Bermondsey.’ (Belgrave Square is a quiet residential area in London whereas Bermondsey is a more industrial area of London) 

However, this does not always mean that some activities will be reasonable simply due to their location. Sometimes some activities will be unreasonable despite their location. 

St.   Helens Smelting Co. Ltd v Tipping (1865) 

FACTS:   Fumes from the defendant’s factory damaged the trees and shrubs on the   claimant’s land. Normally this case would have failed as the claimant lived in an industrial area and should expect such things. 

HELD:   The claim was successful as the nuisance caused physical damage. The House of   Lords held that discomfort to the claimant would not have given rise to a  claim but the fact that there was damage to property made the fumes  unreasonable. 

Utility of defendant’s conduct

Miller v Jackson (1977)  (the cricket club and sixties)

FACTS:   The claimants had moved to a house near to a cricket ground. They wanted an   injunction because cricket balls were often hit into their garden. 

HELD:  Despite Lord Denning's view that cricket was an important public interest.  The Court of Appeal found that the cricket club was a nuisance but the majority considered that no injunction should be awarded. The final result was that the cricket club was able to continue playing cricket on the ground and only had to pay damages for losses they incurred. This balanced the rights of the claimant with the social utility of the club. 

Adams v Ursell (the fish and chip shop smells)

FACTS:  A house owner complained that his neighbour's fish produced smells that interfered with enjoyment of his land. 

HELD:  The fish and chip shop was found to be a nuisance claim despite its social utility. 

Effect of malice 

If a nuisance is caused for malicious reasons, the claim is more likely to succeed. The malice of the claimant will also be taken into consideration by the court and may affect their chances of success.  

Hollywood   Silver Fox Farm Ltd v Emmett (1936) 

FACTS:   The claimant bred silver foxes for their fur. The defendant owned   neighbouring land and deliberately fired shot guns close to the claimant’s land in order to scare the female foxes and prevent them from breeding. 

HELD:  The court decided that the defendant’s bad motive meant that there was a  claim for nuisance and the claimant was awarded damages and an injunction.

DEFENCES 

Some general defences may be available for the tort of nuisance such as contributory negligence, act of a stranger, inevitable accident and act of God. 

Specific defences include:

1. Prescription 

There will be a defence of prescription where the defendant has been causing a nuisance continuously for 20 years of which the claimant was aware and never complained about it. 

Sturges  v Bridgman (1879) 

The defendant’s noisy machinery had been in use for over 20 years but this defence failed as it only became a nuisance when the doctor extended his surgery closer to the defendant’s premises. 

Miller   v Jackson (1977) 

The   defence of prescription failed in this case as the cricket ground which had   been operating for over 70 years had only become a nuisance when the   claimant’s house was built nearby. 

2. Coming to the nuisance 

The defence of volenti (where the claimant is said to have consented to the nuisance by moving next to it) has never succeeded. 

Sturges   v Bridgman (1879)  

FACTS:  A doctor’s surgery extended their premises closer to a confectioner who used   machinery to make their products. 

HELD: The doctor’s claim in nuisance was successful regardless of the fact that he   had move closer to the nuisance. He had not consented to the nuisance. 

Miller   v Jackson (1977) 

FACTS:   The claimants had moved to a house near to a cricket ground. They wanted an   injunction because cricket balls were often hit into their garden. 

HELD:   The Court of Appeal would not accept the cricket ground’s argument that the   claimants had ‘come to the nuisance’ and therefore consent to it. Lord   Denning disagreed with the decision made by a majority of the judges in the   Court of Appeal as it must have been obvious to the claimant’s that such   incidents could occur when you move next to a cricket ground. 

3. Statutory authority 

This is the most successful defence in modern nuisance cases as most nuisance causing activities are permitted and regulated through Acts of Parliament. 

Allen   v Gulf Oil Refining Ltd (1981) 

Parliament authorised the defendant to buy land and build an oil refinery. The court decided that by allowing this, Parliament must have expected the defendant’s   to operate the refinery once it was built. The claim failed due to this   statutory authority. 

4. Public utility 

A claim in nuisance will not be prevented simply because it is useful to the public. However, utility will be considered. 

Bellew   v Cement Co. Ltd (1948) 

The   defendant’s owned the only cement factory in Ireland yet it was forced to   close because it was creating a nuisance. It did not matter that the factory   provided many jobs and cement was in high demand. There is no defence of care and skill in the tort of nuisance.