Law of Tort: Private Nuisance

Private Nuisance

Private Nuisance is a land based tort, which means that it is not concerned with damage to a person. Private Nuisance can be simply defined as something that interferes with the ordinary use of the land, and affects the enjoyment of the land. The key principles that characterise a Private Nuisance are protecting land and property from unreasonable interference.

“The very essence of private nuisance … is the unreasonable use of man of his land to the detriment of his neighbour” – Miller v Jackson [1977] QB 966 CA

There are five main parts to a Private Nuisance claim:

  • Identifying the Claimant and Defendant
  • Establishing whether they have an interest in land
  • Unlawful Interference
  • Remedies
  • Defences

Identifying the Claimant and Defendant

This is a relatively straight forward exercise to identify both the claimant and defendant in a Private Nuisance claim. The defendant is the person who created the Nuisance, which can include a third party if they authorised the Nuisance (Tetley v Chitty [1986] 1 All ER 663). The claimant is the person who has had interference with the ordinary enjoyment of their land.

Establishing Whether a Claimant has an Interest in Land

There are two legal interests in land, which are leasehold and Freehold. In terms of Tort Law, the basic meaning of Freehold is that you own the land, whereas Leasehold means you rent the land for a term of years.

The Law of Property Act 1925

1 Legal estates and equitable interests.

(1)The only estates in land which are capable of subsisting or of being conveyed or created at law are—

       (a)An estate in fee simple absolute in possession; (Freehold)

       (b)A term of years absolute. (Leasehold)

A Claimant must have an interest in land to use Private Nuisance because it is a land tort. If a claimant is unable to satisfy these criteria’s then they will be unable to make a claim.

Originally the requirement for an interest in land came from (Malone v Laskey [1907] 2 KB 141), but this was departed from in (Khorasandjian v Bush [1993] QB 727). Since then the law has reinstated needing a legal interest in the land in the case of (Hunter v Canary Wharf [1997] 2 All ER 426).

Unlawful Interference

The standard for Unlawful interference varies depending on circumstances. If a Rock band for example decided that they wanted to play loudly in the early hours of the morning in a residential area, they are likely to be creating a Private Nuisance. However, if this same Rock band participates in exactly the same activities, but they do so in  secluded barn in the countryside, where there is nobody around – they are unlikely to be creating a Private Nuisance. this is an example of how circumstances can affect unlawful interference.

Remedies

Usually you want an injunction to stop the nuisance. A full inunction to stop the activities may be ideal. However, a partial injunction as in (Kenneway v Thompson) may balance the interests of both parties.

Damages without an injunction are also possible (Miller v Jackson). If the value of the property has been diminished and the court won’t give you an injunction, you can recover the money that your property has been reduced by. A recent example of this is (Dennis v MOD – guy got a nice house directly under the trail for RAF Fighter Jets. Defence of the realm defence, but got the money for the diminished value of house)

Defences

Statutory Authorisation – This is where a statute has authorised the act. Examples of Statutory Authorisation include Power stations and Dams. These may create a Private nuisance, however the statute allows them to do so.

Prescription – After 20 years pass without complaint, you will be effective in defending the alleged Nuisance, which will mean you can continue to do so. Prescription is the same as in Land Law.

Factors the Courts Consider as to if the Defendants use of land is Reasonable

  • Locality – Halsey v Esso. Noise from a factory may be tolerated in the city, but not in the countryside. If the nuisance causes physical damage, the character of the neighbourhood is irrelevant (St Helen’s smelting Company v Tippings (1865))
  • Duration –  The longer and more often it happens means it is more likely that there will be a nuisance. (Biffa v Barr – Landfill site that was mostly organic, which created an awful smell that affected the houses.)
  • Degree of Interference – (Biffa v Barr – Particularly noxious and couldn’t sit in gardens or invite people to their houses.) (Merdoch v Glacier Metal – Lady complained on constant low level hum. She lived near a road, which made much more noise.)
  • Sensitivity – If as a claimant you have a hyper sensitive use of land which is being interfered with, you cannot claim for nuisance if an ordinary user, would not have been interfered with (Bridlington Relay v Yorkshire Electricity – The alleged nuisance were overhead power cables, that it was interfering with television relays. Couldn’t sue because it didn’t affect anyone)
  • Social or Public Utility – (Miller v Jackson – Playing cricket on the green had social and public utility.) (Shelfer v City of London Electric – cannot claim that supplying electric to city was one)
  • Malice – if the only reason you’re doing something is to be a nuisance. (Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468 – Fox farm next door was believed to decrease Emmet’s land value, so he fired his shotgun to deliberately interfere with the fox’s breeding, fox breeding was legal. Emmet’s actions were not unreasonable, however disrupting the lawful activities of his neighbour changed the character of his actions, and made them unreasonable and an actionable private nuisance.) You were there first is not a defence.

 

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