Objective Notes: W300 – Agreements, rights & responsibilities
UNIT 28 - MANUAL FOUR
PRIVATE NUISANCE
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Where claims in private nuisance (prinu) may successfully arise
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Prinu arises where situations interfere with claimant’s use of their land & =
unlawful interference with person’s use/ enjoyment of land or rights over/ in
connection with it (Winfield & Jolowicz on Tort) but, essentially, it is def’s
unreasonable land use - rather than conduct - embracing frequency/ times, length
of time of use & degree/ cause of interference so question of fact whether
interferences unreasonable - taking into account ‘give & take’ (Bamford v Turnley
(1862 ) – acts necessary for ordinary & common use/ occupation may be done
without becoming actionable);
Claimants must have proprietary or possessory interest so restricted to land owners/
occupiers with rights of exclusive possession & includes tenants although landlords
have right of action where interference caused likely to cause permanent damage to
property (Hunter v Canary Wharf [1997]) & must have suffered damage, in certain
circumstances presumed, but where injury = personal discomfort no presumption so
damages recoverable re physical harm to land/ interference with quiet enjoyment/
use of land but no right of action for personal injury nor for damage to personal
property & damage must be reasonably foreseeable to someone in def’s position
when acts done (Cambridge Water Co v Eastern Counties Leather Plc [1994]);
Defs are (i) creator where nuisance created by positive action, rather than omission
even if land now occupied by another (Rosewell v Prior (1701)); (ii) occupiers
responsible not only for own acts/ omissions but also for persons under their
control, ind contractors where real danger nuisance committed unless reasonable
care exercised (Matania v National Provincial Bank Ltd [1936]), predecessors in
title where occupier knows/ reasonably should know nuisance exists (St Anne’s
Well Bakery Co v Roberts [1929]) & trespassers (Sedleigh- Denfield v
O’Callaghan (Trustees St Joseph’s Society for Foreign Missions) [1940]); (iii)
landlord where nuisance inevitably results from granting lease (Tetley v Chitty
[1986]) but not where results from tenants rather than premises (Smith v Scott
[1973]) although liab where nuisance existed when lease commenced & knew/
ought to have known (Brew Brothers Ltd v Snax (Ross) Ltd [1970]) &, where
leases contain covenants landlords will carry out repairs or have right to enter to do
so, if landlord fails so to do (Payne v Rogers (1794)).
Where damage caused, neighbourhood characteristics irrelevant but where
interference caused just personal discomfort, unreasonableness judged vis-à-vis
types/ degree of interference expected in particular areas (St Helen’s Smelting Co v
Tipping (1865)) but where claimants abnormally sensitive to interferences which
would not disturb others, courts not permit reliance on this (Robinson v Kilvert
[1889]);
Claimants must show continuous/ recurrent duration so isolated interferences
unlikely to give rise to liab unless become sufficiently repetitive to be actionable
(Miller v Jackson [1977]) & courts balance public benefits vis-à-vis claimants right
of peaceful enjoyment so where interference substantial private rights not
subordinate to public benefit & should be protected, albeit may have some
relevance re granting injunctions;
Establishing malice not necessary but likely evidence of unreasonable interference
(Hollywood Silver Fox Farm v Emmett [1936]);
Where occupier’s land has natural hazards posing threats to neighbours, duty = do
what can in all the circumstances reasonable to minimise known damage risks & to
remedy situation but where hazard not created by occupier, courts take subjective
approach to occupier’s circumstances/ physical & financial means & expect less
from someone impoverished &/ or infirm than someone wealthy &/ or able bodied
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Objective Notes: W300 – Agreements, rights & responsibilities
& may also consider claimant’s capacity financially & physically to protect
themselves (Leakey v National Trust [1980]).
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Defences
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Effective defences = (i) Prescription: where nuisance exists & has been actionable
for at least 20 years, defs can rely on fact have acquired right to commit it (Sturges
v Bridgman (1879); (ii) Stat authority: where stats permit defs to commit nuisances,
can rely on such provided can show it an inevitable result of what stat authorised
but planning authorities have no general jurisdiction to authorise nuisances unless
decision changes neighbourhood’s character (Gillingham B C v Medway (Chatham)
Dock Co Ltd [1993]) - matter of fact in every case & where such character change,
some permissions may authorise some nuisances (Wheeler v Saunders [1996]); (iii)
Contrib neg; (iv) Consent: where def shows claimant specifically agreed to accept
interference but rarely successful, especially that clamant ‘came to the nuisance’; &
(v) Acts of God/ nature: where nuisance results from ‘secret, unobservable process
of nature’ (Wringe v Cohen [1940]) or ‘Acts of God’ (e.g. lightning) but in every
case defs themselves must not have been neg;
Ineffective defences = (i) Came to the nuisance: where A buys land near to B’s &
where B’s use causes interferences which A aware of prior to purchase, B cannot
rely on this; (ii) Public benefit: but may be relevant in deciding whether to grant
injunction (Dennis v Ministry of Defence [2003]); & (ii) Others’ contributory
actions: where nuisance results from several actions by number of people provided
def aware what such others doing, so cannot say his actions alone not constitute
actionable nuisance.
Remedies
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Damages awardable as compensation for physical damage & personal
inconvenience/ discomfort & where continuing nuisance causes damage which def
knew/ ought to have known, claimants may recover reasonable remedial costs but
defs entitled to be given notice & to have reasonable opportunity to remove
(Delaware Mansions Ltd & Anr v Westminster City Council [2002]) & where
injunction refused, claimants entitled to damages covering both past & future losses;
Courts grant injunction (inj) where just & convenient but not granted where
damages = adequate remedy so where money sufficiently compensates will not
injunct def halting/ restricting activities & where claimant knew reasonable activity
carried on could not complain if continued at that level but increased activity may
be unreasonable justifying restriction so claimant entitled only to inj restraining
defs from activities actually causing nuisance (Kennaway v Thompson [1981]);
Interference can be abated/ removed by claimant provided has given def prior
notice, except in emergency or where can be exercised without entering def’s
property (Lemmon v Webb [1895] but any part of other party’s property removed
(e.g. overhanging branches) belong to him & should be returned once cut off (Mills
v Brooker [1919]).
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