NUISANCE
PROBLEM QUESTIONS
ANSWER GUIDE
STEP 1 Define Private Nuisance
A private nuisance is defined as an unlawful/unreasonable interference with a
person’s use and enjoyment of his land.
STEP 2 Who can sue?
In order to sue in private nuisance, claimant must have a proprietary interest in the
land affected e.g. as owner or tenant or a licensee: Malone v Laskey and Hunter v
Canary Wharf.
Malone v Laskey: only a person who has an interest in land may bring an action,
Hunter v Canary Wharf: it is now clear that only those who have proprietary
interest in the land affected by nuisance can sue e.g.:
owner, or someone with exclusive possession or
occupation of it as a tenant or someone with
exclusive possession:
This will exclude lodgers and guests.
STEP 3 Who can be sued?
The action may be brought against anyone with a degree of responsibility for the
nuisance, including the creator of the nuisance and, in certain circumstances, the
occupier of the land from which the nuisance emanates. Since defendant is both the
creator and the occupier/owner, he/it (if company) appears to be the only possible
defendant.
, Creator of a nuisance
Occupier's e.g. in relation to a tenant, there is authority to suggest that he will
be liable as an occupying tenant of the premises if it can be proved that he knew
or ought reasonably to have known of it existence(the chemical) but not
otherwise: Montana Hotels v Fasson Pty.
Landlords(depends on the amount of control he has over the property) If a
landlord was responsible for the state of the land (e.g. storage of the chemical),
he may be held liable as a previous occupier of the premises, because he knew,
or ought to have known, of the hazardous state of affairs: St Anne’s Well
Brewery Co v Roberts ; Coventry v Lawrence.
NB: Council Cases (to be discussed only where relevant)
In Hussain v Lancaster CC (1999) the plaintiffs were subject to a campaign
of harassment by people who lived as tenants on a council estate owned by the
defendant (council). This disrupted the plaintiffs business. An action for
nuisance against the council failed. (Apart from policy grounds) on the basis
that the claim was in essence related to the plaintiffs right to be free from racial
harassment, as opposed to the right in relation to the use of their land/property.
Lippiatt v South Gloucestershire Council (1999) in which a group of
travellers allegedly set up camp on land belonging to the council and used the
camp as a "launching pad" for a series of damaging invasions on the
neighbouring farmers property. The Court of Appeal held the council was
arguably liable for the nuisance resulting from the state of affairs in its land.
STEP 4 Is there an actionable claim for Private Nuisance?
Private nuisance is based on the principle of give and take and the role of the court
is to reach a balance between the competing interests of neighbours. The
interference must be substantial and not fanciful: Walter v Selfe. The relevant
factors in this process are whether there is a substantial interference with use or
enjoyment and whether the defendant can show that his use of the land is
reasonable.
Plaintiff must prove:
a) Continuous interference
b) Unlawful interference
c) Foreseeability
d) Damages
, Acknowledging that there are numerous cases where various acts were taken into
consideration and assessed as to their potential of constituting a nuisance, e.g.:
Ringing of bells in a church:
Flooding:
Prostitution:
Fumes:
Dust:
Noisy Machines:
Overhanging branches:
TV reception:
Comments made by Buckley J in the case of Bridlington Relay Ltd v
Yorkshire Electricity Board suggested that, at the time of that case, TV reception
could not be regarded as such an important part of an ordinary householder’s
enjoyment of his property so as to amount to a legal nuisance. However, more
recent cases in other common law jurisdictions have held that TV viewing is an
important incident of the ordinary enjoyment of property and should be protected:
Nor-Video v Ontario Hydro (a Canadian authority).
In Hunter, the House of Lords held that interference with TV reception caused by
the blocking of such transmissions by the erection of a building did not constitute
a nuisance. However, obiter comments of Lords Hoffman and Cooke suggest that
interference with TV reception could, in some circumstances, amount to a nuisance.
In the light of the decision in Hunter, it is submitted that where such interference
is caused by something emanating from the defendant’s land, such as use of
electrical equipment, then an action will lie. The point remains to be firmly decided.
STEP 5 Assessing Continuous interference
The interference must be continuous over a period of time
In order to amount to a nuisance the conduct must be a state of affairs which is
continuous: Swaine v GN Railway [1864]
In De Keysers Royal Hotel v Spicer noisy pile driving at night (temporary) was
still held to be a nuisance.
In Andrea v Selfridge temporary noise arising from building activities which
caused loss of sleep was held to be a nuisance.
PROBLEM QUESTIONS
ANSWER GUIDE
STEP 1 Define Private Nuisance
A private nuisance is defined as an unlawful/unreasonable interference with a
person’s use and enjoyment of his land.
STEP 2 Who can sue?
In order to sue in private nuisance, claimant must have a proprietary interest in the
land affected e.g. as owner or tenant or a licensee: Malone v Laskey and Hunter v
Canary Wharf.
Malone v Laskey: only a person who has an interest in land may bring an action,
Hunter v Canary Wharf: it is now clear that only those who have proprietary
interest in the land affected by nuisance can sue e.g.:
owner, or someone with exclusive possession or
occupation of it as a tenant or someone with
exclusive possession:
This will exclude lodgers and guests.
STEP 3 Who can be sued?
The action may be brought against anyone with a degree of responsibility for the
nuisance, including the creator of the nuisance and, in certain circumstances, the
occupier of the land from which the nuisance emanates. Since defendant is both the
creator and the occupier/owner, he/it (if company) appears to be the only possible
defendant.
, Creator of a nuisance
Occupier's e.g. in relation to a tenant, there is authority to suggest that he will
be liable as an occupying tenant of the premises if it can be proved that he knew
or ought reasonably to have known of it existence(the chemical) but not
otherwise: Montana Hotels v Fasson Pty.
Landlords(depends on the amount of control he has over the property) If a
landlord was responsible for the state of the land (e.g. storage of the chemical),
he may be held liable as a previous occupier of the premises, because he knew,
or ought to have known, of the hazardous state of affairs: St Anne’s Well
Brewery Co v Roberts ; Coventry v Lawrence.
NB: Council Cases (to be discussed only where relevant)
In Hussain v Lancaster CC (1999) the plaintiffs were subject to a campaign
of harassment by people who lived as tenants on a council estate owned by the
defendant (council). This disrupted the plaintiffs business. An action for
nuisance against the council failed. (Apart from policy grounds) on the basis
that the claim was in essence related to the plaintiffs right to be free from racial
harassment, as opposed to the right in relation to the use of their land/property.
Lippiatt v South Gloucestershire Council (1999) in which a group of
travellers allegedly set up camp on land belonging to the council and used the
camp as a "launching pad" for a series of damaging invasions on the
neighbouring farmers property. The Court of Appeal held the council was
arguably liable for the nuisance resulting from the state of affairs in its land.
STEP 4 Is there an actionable claim for Private Nuisance?
Private nuisance is based on the principle of give and take and the role of the court
is to reach a balance between the competing interests of neighbours. The
interference must be substantial and not fanciful: Walter v Selfe. The relevant
factors in this process are whether there is a substantial interference with use or
enjoyment and whether the defendant can show that his use of the land is
reasonable.
Plaintiff must prove:
a) Continuous interference
b) Unlawful interference
c) Foreseeability
d) Damages
, Acknowledging that there are numerous cases where various acts were taken into
consideration and assessed as to their potential of constituting a nuisance, e.g.:
Ringing of bells in a church:
Flooding:
Prostitution:
Fumes:
Dust:
Noisy Machines:
Overhanging branches:
TV reception:
Comments made by Buckley J in the case of Bridlington Relay Ltd v
Yorkshire Electricity Board suggested that, at the time of that case, TV reception
could not be regarded as such an important part of an ordinary householder’s
enjoyment of his property so as to amount to a legal nuisance. However, more
recent cases in other common law jurisdictions have held that TV viewing is an
important incident of the ordinary enjoyment of property and should be protected:
Nor-Video v Ontario Hydro (a Canadian authority).
In Hunter, the House of Lords held that interference with TV reception caused by
the blocking of such transmissions by the erection of a building did not constitute
a nuisance. However, obiter comments of Lords Hoffman and Cooke suggest that
interference with TV reception could, in some circumstances, amount to a nuisance.
In the light of the decision in Hunter, it is submitted that where such interference
is caused by something emanating from the defendant’s land, such as use of
electrical equipment, then an action will lie. The point remains to be firmly decided.
STEP 5 Assessing Continuous interference
The interference must be continuous over a period of time
In order to amount to a nuisance the conduct must be a state of affairs which is
continuous: Swaine v GN Railway [1864]
In De Keysers Royal Hotel v Spicer noisy pile driving at night (temporary) was
still held to be a nuisance.
In Andrea v Selfridge temporary noise arising from building activities which
caused loss of sleep was held to be a nuisance.
