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Private Nuisance, Public Nuisance & Rylands
Private nuisance - Elements
66
Law
04/23/2012

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Term
What are the three elements you must show for a claim in private nuisance?
Definition
i) Indirect interference
ii) Damage
iii) Unlawful interference
Term
What are the two types of damage actionable under private nuisance?
Definition
i) Damage to property
ii) SPD
Term
In bring a claim for 'damage to property' under private nuisance, which elements of the 'unlawful interference test' must you consider?
Definition
i) Utility / public benefit of the activity
ii) Time and duration of the nuisance
iii) Isolated incident or continuing state of affairs
iv) Abnormal sensitivity
v) Malice
vi) Other misc factors
Term
In order to bring a claim for 'SPD' under private nuisance, which elements of the 'unlawful interference' test must you consider?
Definition
ALL OF THEM
i) Character of the neighbourhood / locality
ii) Utility / public benefit of the activity
iii) Time and duration of the nuisance
iv) Isolated incident or continuing state of affairs
v) Abnormal sensitivity
vi) Malice
vii) Other misc factors
Term
What are the different elements that may be considered when looking at the 'unlawful interference' element of private nuisance?
Definition
i) Character of the neighbourhood / locality
ii) Utility / public benefit of the activity
iii) Time and duration of the nuisance
iv) Isolated incident or continuing state of affairs
v) Abnormal sensitivity
vi) Malice
vii) Other misc factors
Term
The third element of private nuisance is 'unlawful interference'. What does this mean?
Definition
The C must show that the nuisance he is complaining about constitutes an unlawful interference. In order to do so, it must be shown that the D's activity, which is causing the nuisance amounts to an unreasonable use of his land.
Term
How do the courts determine whether the D's activity, which causes the nuisance, amounts to an unreasonable use of his land?
Definition
By considering the following factors:
i) Character of the neighbourhood / locality (NOT CONSIDERED IN PHYSICAL DAMAGE CLAIMS)
ii) Utility / public benefit of the activity
iii) Time and duration of the nuisance
iv) Isolated incident or continuing state of affairs
v) Abnormal sensitivity
vi) Malice
vii) Other misc factors
Term
To make things easier, what will I refer to the different elements of the unlawful interference test as?
Definition
The reasonableness test considerations.
Term
The reasonableness test consideration 'time/duration', when considered in relation to a physical damage claim, is important because...
Definition
If the nuisance was a one off event, the court will not award an injunction (pointless), it will award damages
Term
If the court determines that the Ds activity, which created the nuisance, = reasonable use fo his land, what will happen?
Definition
The nuisance claim will fail - Cambridge Water Company v Eastern Counties Leather [1994]
Term
Cambridge Water Company v Eastern Counties Leather [1994] - on reasonable use of the land
Definition
WHERE THE ACTIVITY WHICH CREATED THE NUISANCE = REASONABLE USE OF THE LAND, THE CLAIM FOR NUISANCE WILL FAIL
Term
When applying the 'unlawful interference' test, how do the courts reach their conclusion?
Definition
The different elements of the test have to be balanced out. The right of the land owner to do as he pleases on his land has to be balanced against other people's right not to be interefered with.
Term
Sedleigh Denfield v O'Callaghan [1940]
Definition
IN DETERMINING 'UNLAWFUL INTERFERENCE', A BALANCE HAS TO BE MAINTAINED BETWEEN THE RIGHT OF THE OCCUPIER TO DO WHAT HE LIKES WITH HIS OWN, AND THE RIGHT OF HIS NEIGHBOUR NOT TO BE INTERFERED WITH
Term
Is the reasonableness test objective or subjective?
Definition
Objective -what is reasonable use in that particular context
Term
In assessing 'unlawful interference' for a physical damage claim, would you consider 'character of the neighbourhood / locality'?
Definition
NO
Term
Sturges v Bridgman [1879]
Definition
LOCALITY IS IMPORTANT TO WHETHER OR NOT AN ACTIVITY = UNREASONABLE USE OF THE LAND = NUISANCE
'what would be a nuisance in Belgrave Square would not necessariy be so in Bermondsey'
D was using his property for the manufacture of confectionary
C was disturbed by the noise and vibrations coming from the factory
Term
Adams v Ursell [1913]
Definition
D owned a fish shop
C complained
HELD - unreasonable to have a fish shop in a residential area. Fumes = nuisance.
OBITER - 'it by no means follows that, because a fried fish shop is a nuisance in one place, it is a nuisance in another'.
Term
Laws v Florinplace [1981]
Definition
A SEX SHOP = NUISANCE BECAUSE IT WAS IN A RESIDENTIAL SUBURBAN AREA
Term
Gillingham Borough Council v Medway Dock Co [1993]
Definition
PLANNING PERMISSION MAY ALTER ANM AREA FROM RESIDENTIAL TO INDUSTRIAL
e.g. the nature of the area can change because the council grants permission for lots of industrial operations
Term
Watson and others v Croft Promo-sport Ltd [2009]
Definition
NATURE OF A RURAL AREA HELD NOT TO HAVE BEEN CHANGED BY A MOTOR CIRCUIT (WHICH HAD PLANNING PERMISSION) WHICH HAD EXISTED FOR 20 YEARS.
Term
Where some industrial-ish things have been built in an area, will the area be held to have changed in nature (e.g. from residential/rural to industrial)?
Definition
NO, not necessarily, see Watson and others v Croft Promo-Sport Ltd [2009]
Term
When discussing the reasonable use consideration of 'locality', which cases should you discuss?
Definition
Sturges v Bridgman [1879]
Adams v Ursell [1913]
Laws v Florinplace Ltd [1981]
Gillingham Borough Council v Medway Dock Co Ltd [1993]
Watson and others v Croft Promo-Sport Ltd [2009]
Term
Is it likely that the courts will find that where an activity creates a public benefit, it will = reasonable use of the land?
Definition
NO
Term
Which cases can be used to show that where an activity creates a public benefit, this will not sway the courts away from finding that it = reasonable use of the land?
Definition
Adams v Ursell [1913]
Bellew v Irish Cement [1948]
Miller v Jackson [1977]
Dennis v MoD [2003]
Term
Which cases can be used to show the courts trying to achieve a balancing act between the individual-sufferer and the public benefit?
Definition
Kennaway v Thompson [1981]
Miller v Jackson [1977]
Dennis v MoD [2003]
Term
Adams v Ursell [1913] - on public benefit
Definition
THE FISH SHOP WAS RECOGNISED AS PROVIDING A PUBLIC BENEFIT, HOWEVER, IT WAS STILL HELD TO = NUISANCE, AND THEREFORE COURT ORDERED ITS CLOSURE
Term
Bellew v Irish Cement [1948]
Definition
AN IRISH COURT PLACED THE INTERESTS OF THE INDIVIDUAL AHEAD OF THE PUBLIC GOOD WHEN IT ORDERED THE CLOSURE OF A CEMENT WORKS, DESPITE THE FACT THAT IT WAS THE ONLY CEMENT FACTORY IN IRELAND, AND BUILDING WAS AN URGENT PUBLIC NECESSITY AT THE TIME
Term
Kennaway v Thompson [1981]
Definition
IN TRYING TO STRIKE A BALANCE BETWEEN THE NUISANCE AND THE PUBLIC BENEFIT, THE COURT MAY LIMIT THE TIME AND FREQUENCY OF THE ACTIVITY, RATHER THAN PREVENTING IT COMPLETELY
Term
Miller v Jackson [1977] - on balancing public benefit against nuisance
Definition
COURT AWARDED DAMAGES INSTEAD OF AN INJUNCTION, BECAUSE NUISANCE CREATER CREATED A PUBLIC BENEFIT
Term
Dennis v MoD [2003]
Definition
DEFENCE OF THE NATION WAS NOT SUFFICIENT PUBLIC BENEFIT FOR THE COURT TO FIND THAT THE FLYING OF HARRIER JET FIGHTERS WAS REASONABLE AND NOT A NUISANCE.
HOWEVER, IN WEIGHING UP DIFFERENT INTERESTS, THE COURT AWARDED DAMAGES RATHER THAN AN INJUNCTION
Term
Which case criticised the use of 'damages' instead of 'injunctions'?
Definition
Watson v Croft Promo-Sport [2009]
Term
Watson v Croft Promo-Sport [2009] - on remedies which balance public benefit with nuisance
Definition
CRITICISED USE OF DAMAGES IN LIEU OF AN INJUNCTION. STATED THAT DAMAGES IN LIEU OF AN INJUNCTION SHOULD ONLYBE USED IN EXCEPTIONAL CIRCUMSTANCES.
Term
If making a claim for physical damage to property, what effect will the time/duration consideration have?
Definition
It will determine the remedy. If it was a one off event = damages. If it is a continuing event = injunction.
Term
Kennaway v Thompson [1981]
Definition
WHETHER AN ACT CONSTITUTES A NUISANCE MUST BE DETERMINED BY REFERENCE TO ALL THE CIRCUMSTANCES OF THE PARTICULAR CASE.. THE TIME OF COMMISSION, WHETHER TRANSITORY OR PERMANENT, OCCASIONAL OR CONTINUOUS.
Term
What is the general assumption w.r.t the 'continuing state of affairs' element of the 'reasonable use' test?
Definition
The general assumption is that there will not usually be liability in private nuisance for an isolated incident.
Term
In what circumstances might a single one-off incidient be sufficient to mount a claim under private nuisance?
Definition
Where the event/nuisance is as a consequence of a continuous underlying state of affairs.
Term
Spicer v Smee [1946]
Definition
A ONE OFF INCIDENT CAN = A NUISANCE WHERE IT OCCURS AS A CONSEQUENCE OF AN UNDERLYING STATE OF AFFAIRS
A fire started in a bungalow as a consequence of defective wiring in the bungalow. Although the fire was a one off incident, the detective wiring had continued for some time and amounted to a dangerous underlying state of affairs.
Term
Exceptional quote from Lawton LJ in Kennaway v Thompson [1981]
(exemplifies the need for a balancing act)
Definition
'intervention by injunction is only justified when the irritating noise causes inconvenience beyond what other occupiers in the neighbourhood can be expected to bear'
Term
Crown River Cruises Ltd v Kimbolton Fireworks Ltd
Definition
COURTS WILL TAKE ANYTHING CONCERNING FIRE VERY SERIOUSLY AND LIKELY TO FIND ONE-OFF EVENT = NUISANCE WHERE IT INVOLVES FIRE
A VERY FACT SENSITIVE CASE - EXAMPLE OF NUISANCE BEING FOUND, EVENTHOUGH IT = A ONE-OFF EVENT AND WAS NOT ILLUSTRATIVE OF AN UNDERLYING STATE OF AFFAIRS.
A 15 minute firework display to celebrate the end of a battle was held to be a nuisance to a Thames boat owner whose boat suffered substantial fire damage
Term
How can the rule that 'physical property damage caused by a one off event = damages' be reconciled with the rule that 'there will generally not be liability for private nuisance for an isolated incident'?
Definition
Because there can be liability for an isolated incident where the isolated incident illustrates an underlying state of affairs.
Term
How can you use Crown River Cruises Ltd v Kimbolton Fireworks Ltd in a discussion?
Definition
WHERE THE FACTS CONCERN FIRE, THE COURTS WILL TAKE IT VERY SERIOUSLY, AND SO ARE LIKELY TO FIND A ONE OFF FIRE TO BE A NUISANCE
Term
What is the 'rule' w.r.t the reasonable test element of 'abmnormal sensitivity'?
Definition
A claimant who is abnormally sensitive (or a 'thing' which is abnormally sensitive) cannot tranfom activities that would not interfere with the ordinary occupier into a nuisance
Term
What are the key cases you have to know for the reasonable test element of 'continuing state of affairs'?
Definition
Spicer v Smee [1946] - must be continuing state of affairs
Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] - unusual case
Term
What are the key cases you have to know for 'time and duration' element of the reasonable test?
Definition
Kennaway v Thompson [1981]
Term
Which case can you use to show that where a claimant (or his property) is abnormally sensitive, something which wouldn't affect 'normal' people cannopt be turned in to a nuisance?
Definition
Robinson v Kilvert [1889]
Term
Robinson v Kilvert [1889]
Definition
A C WHO IS UNUSUALLY SENSITIVE CANNOT TRANSFORM ACTIVITIES THAT WOULD NOT INTERFERE WITH THE ORDINARY OCCUPIER IN TO A NUISANCE
C operated a paper business in a property above the D
Heat emitted from the D's premises damaged the C's paper
HELD - the Cs paper was abnormally sensitive, ordinary paper would not have been affected.
Term
What happens if... the 'ordinary' occupier would have been affected, but because of the C's abnormal sensitivity, he is affected in excess of what the ordinary occupier would be affected?
Definition
The C can claim for the FULL EXTENT of his injuries and irritation, even though these are increased by his sensitivity
Term
Which case can be used to show that where an ordinary person would be affected, an abnormally-sensitive person who is affected may claim for the full extent of his injuries?
Definition
McKinnon Industries v Walker [1951]
Term
McKinnon Industries v Walker [1951]
Definition
IF THE HYPOTHETICAL REASONABLE OCCUPIER WOULD HAVE BEEN AFFECTED THEN THE C CAN CLAIM FOR THE FULL EXTENT OF HIS INJURIES AND IRRITATIO, EVEN THOUGH THESE ARE INCREASED BY HIS SENSITIVITY
Term
What does the 'malice' element of the reasonable use test mean?
Definition
If the D is acting with malice = more likely that the courts will itnerfere. However, the courts recognise that a certain amount of conflict is inevitable. If the D can show a legitimate reason for what he is doing, the court will be less inclined to interfere with his activities. However, if the D can point to no real justification for his actions as his aim is solely to annoy the C, this will normally constitute a nuisance.
Term
Which cases can be used to illustrate the 'malice' element of the 'reasonable use' test?
Definition
Christie v Davey [1893]
Hollywood Silver Fox Farm v Emmett [1936]
Term
Christie v Davey [1893]
Definition
IF A PERSON CANNOT SHOW A LEGITIMATE REASON FOR WHAT THEY ARE DOING = MALICE
C = music teacher
D = her neighbour
D sent her a letter conplaining and asking her to stop singing
C ignored the letter
D started banging on the walls and clattering metal trays every time the C sang.
C brought a claim for nuisance
D brought a counter claim for nuisance
HELD - the C had a purpose, whilst the D did not and it was purely malice. Therefore, the C's claim suceeded and the D's claim failed.
Term
Hollywood Silver Fox Farm v Emmett [1936]
Definition
IF A PERSON CANNOT SHOW A LEGITIMATE REASON FOR WHAT THEY ARE DOING = MALICE
C owned a fox breeding farm
D = conjoining land owner
C & D had a dispute over a property sign
D instructed his son to fire a shots (on his land) near the Cs land to disturb the Fox breeding
HELD - the D had not other reason for his actions, other then malice, therefore = not a legitimate use of his house, therefore = nuisance
Term
Boulton v Stone
Definition
IN ORDER TO CLAIM IN PRIVATE NUISANCE, ACTIVITY MUST BE FREQUENT
C hit by a cricket ball when she came out her house
Over the last 30 years, only 6 cricket balls had landed on her land
HELD - not freuqent enough, claim for nuisance failed
Term
Castle v St Augustine's Links Golf Club [1922]
Definition
A FREQUENT ACTIVITY = A NUISANCE
Cs car was hit by a golf ball
there was evidence that golf balls were always being hit into the car park
HELD - golf balls in the car park was frequent enough
(also a public nuisance case)
Term
Celanese Ltd v A.H. Hunt Ltd [1969]
Definition
A ONE OFF EVENT CAN BE A PRIVATE NUISANCE, IF IT IS ILLUSTRATIVE OF A CONTINUING STATE OF AFFAIR
D had strips of tinfoil all over his land. Strips of tinfoil would fly all over the place.
One of the strips landed on the Cs land and caused a power cut.
D argued that it was only one strip that caused a problem, therefore can't be a nuisance as = no frequency
HELD - the tinfoil blowing around = continual state of affairs
Term
Do people in Pimlico have sex?
Definition
NO - Laws v Florinplace [1981]
Term
Sturges v Bridgman [1879] - on 'who gets there first'
Definition
IT DOESN'T MATTER IF THE C MOVES TO THE NUISANCE
C owned the doctors practice for many years. He built an extension, which caused the extended part to be disturbed by activities in his neighbour's confectionary factory.
HELD - the neighbour's confectionary business = a nuisance, because it was not an industrial area.
Term
Can you ever turn around and say 'I've got planning permission, therefore I can continue'?
Definition
NO - Wheeler v Saunders
Term
Wheeler v Saunders
Definition
PLANNING PERMISSION IS NOT PERMISSION TO CREATE A NUISANCE
Ds owned a pig farm
Ds got planning permission to extend their pig farm
C was disturbed by the extended pig farm
HELD - even though the D had planning permission, it didn't matter, still = nuisance
Term
Gillingham Borough Council v Medway (Chatham) Dock Co. [1992]
Definition
PLANNING PERMISSION DOESN'T ALLOW A NUISANCE, BUT IT CAN CHANGE THE NATURE OF A NEIGHBOURHOOD.
D (council) had a policy to grant planning permission to make an area more industrial
HELD - the court will take account of this, as it is indicative of what type of area it is.
Term
In a private nuisance case concerning physical damage to property, is 'locality' considered?
Definition
NO
Term
Farrer v Nelson [1885]
Definition
IF SOMETHING IS EXCESSIVE, IT IS MORE LIKELY TO BE UNLAWFUL
The D kept pheasants - if he had kept 1 or 2, it would be fine, but he kept hundreds of pheasents.
Term
Misc reasonable use consideration 'excessive' - which case?
Definition
Farrer v Nelson [1885]
Term
If the C has 'moved to' the nuisance, can they still sue for private nuisance?
Definition
YES
Term
Why, when the C is the one who has moved to the nuisance, is the C still able to sue?
Definition
As, in order to establish a claim for private nuisance, the C must prove that D is using his property unreasonably. Therefore, the D is using his land unreasonably - it is only that it becomes actionable once someone moves in next door.