Nuisance Question
In this particular case, it is clear that nuisance would be the appropriate type of law to
apply. There are two types of nuisance public nuisance and private nuisance. Private
nuisance is the type of nuisance that applies to this case. The definition of private
nuisance is ‘continuous, unlawful and indirect interference with a person’s use or
enjoyment of land or some right over, or in connection with it.’ Nuisance covers an
indirect interference by a tortfeaser. There are three types of public nuisance, nuisance by
encroachment to land, nuisance by a direct physical injury to a neighbours land and
nuisance by interference with a neighbour's quiet enjoyment of his land. In private
nuisance, only people with a proprietary interest in the land can claim. For example in the
case of Hunter v Canary Wharf [1997] a tenant’s family members made an
unsuccessful claim because they did not have a proprietary interest in the land. There are
three types of defendant in a nuisance claim, the individual who created the nuisance, the
occupiers or the landlord. In Tetley v Chitty (1986) the council granted permission for a
go kart track on council owned land. The council ‘adopted’ the nuisance and was
therefore found liable for the nuisance suffered by the claimant from the noise created as
a result of the go karts.
There are 3 requirements which must be satisfied. Firstly, there must be a continuous
interference over a period of time with the claimant’s use or enjoyment of their land like
in the case British Celanese v Hunt Ltd (1969). The second requirement is for the
defendant’s conduct to be proven unreasonable and therefore unlawful or somehow
impairing the claimant’s enjoyment of land. There are several factors that the courts may
use when trying to establish the level of reasonableness or otherwise of the defendant’s
use of land. These include the locality, which simply means the area, in Sturges v
Bridgman (1879) it was stated that ‘what might be a nuisance in Belgravia Square would
not necessarily be so in Bermondsey.’ The sensitivity of the claimant, in nuisance the
tolerance is that of a normal neighbour, therefore an abnormally sensitive claimant is
unlikely to succeed, like in the case Robinson v Kilvert (1889). The utility of the
defendant’s conduct wont amount to nuisance if it is seen as useful to society as a whole.
In the case of Harrison V Southwalk Water Co (1891), building work carried out at
reasonable times of the day did not amount to nuisance. Malicious behaviour may also
been taken into consideration when attempting to prove unreasonableness of the
defendant, it may also be taken into consideration if the claimant retaliates maliciously.
The last requirement is that the claimant proves that some sort of damage has occurred,
for example physical damage to property or to the claimants health. In Bliss V Hall
(1838) smells and fumes from candle making affected enjoyment of the adjoining land.
There are also defences a defendant can use in nuisance which include: prescription,
which is when the nuisance has happened for 20 years or more without interruption, then
the defendant will not be liable if he or she pleads a prescriptive right to the nuisance. An
example of this can be found in the case of Sturges V Bridgman (1897) when a doctor
built a consulting room next to a confectioner’s workshop, which had been operating for
over 20 years. The claim failed as the court held that the confectioner had a prescriptive
right to the nuisance. Statutory authority, which is when the activities caused by the
nuisance can be shown to be authorised (expressly or impliedly) by a statute like in the
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case of Allen v Gulf oil (1981). Local authority planning permission can also act as a
lawful justification in some circumstances if the defendant’s behaviour is otherwise
reasonable.
A court may use several remedies in a case of nuisance. Abatement, which is the
remedy of self-help, i.e. removing over hanging tree branches, which are a nuisance. An
injunction may also be used, which has the aim of stopping future acts of nuisance.
In the claim between Norman and Emma V Les there is a potential claim as Norman
and Emma have proprietary interest in the land and Les is the occupier of the land, which
means that he can be sued. The first claim they could make is due to the noise Les has
created due to drilling and hammering late over many nights and from the smell coming
from the rubbish. This is similar to the cases Halsey v Esso Petroleum (1961) and
Bliss v Hall (1838). Both the noise and the smell are indirect acts of nuisance. This claim
is for nuisance via interference with a neighbour's quiet enjoyment of his land
Les is acting unreasonable by continuously working late and making lots of noise, he is
also acting unreasonably by not getting rid of his rubbish that is starting to smell badly.
Les has also acted maliciously by not ceasing to work late at night, even after Norman
and Emma asked him to. Acts of malice also occurred in Hollywood Silver Fox Farm v
Emmett (1936). The case notes also state that Emma and Norman are light sleepers,
which is a sign of sensitivity. Sensitivity was also apparent in the Robinson v Kilvert
(1889). Cases involving sensitivity are often unsuccessful. However, because Emily is
another neighbour who is also being affected by the late night noise this sensitivity is
likely to be ignored as ‘normal’ tolerance neighbours are also being affected. Norman and
Emily’s claim would be successful.
In the second claim of Norman and Emma V Les there is a potential claim as damage to
their valuable plants in their garden, like in Mckinnon industries v Walker (1951)
where orchids were damaged, was due to paint stripper fumes from rubbish on Les’
property. The fumes indirectly interfere with their enjoyment of the land. Les’ land might
be inspected to see if he took reasonable precautions to protect Norman and Emily’s land
from any damage. Since the damage has occurred it is unlikely that he did, this is called
res ispa loquitur when the thing speaks for itself. This claim is also likely to succeed.
Emily also has a potential claim as she too has a proprietary interest in the land. She has
also had her enjoyment of the land interfered with due to the noise late at night caused by
Les. However, she has retaliated by playing her radio at full blast. This is similar to the
case Christie V Davey (1893) where the defendant maliciously made lots of noise to
spoil the music lessons taught by the claimant. The court will consider this and will
probably perceive this to be a malicious act. Therefore, her claim would fail. Les
however, could claim against her, as her actions could be perceived as a nuisance.
In conclusion, both or Norman and Emily’s claims are likely to succeed against Les,
but Emily’s is highly unlikely to succeed because of her malicious retaliation. As a result
of Emily’s malicious retaliation, Les could claim against her.
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