Tort 2
Lecture 1 – Claims in private nuisance
What amounts to a private nuisance?
- A societal law arguably the most social contract law
- Private nuisance is ‘an [unreasonable] interference with a person’s use or enjoyment
of land, or of some other right over or in connection with it.’
o Winfield, P.H. ‘Nuisance as a Tort’ (1931)
- Balancing act as neighbours what can you do with your land, what can I
reasonably expected to deal with
o ‘A balance has to be maintained between the rights of the occupier to do
what he likes with his own land, and the right of his neighbour not to be
interfered with’
Per Ld. Wright in Sedleigh-Denfield v O’Callaghan [1940] AC 880.
- ‘Nearly all of us living in these islands have to put up with a certain amount of
annoyance from our neighbours... Intervention…is only justified when the irritating
noise causes inconvenience beyond what other occupiers…can be expected to
bear.’
o Per Lawton LJ in Kennaway v Thompson [1980] 3 All ER 329
- Land, use of land, enjoyment of land
- Legal relationship with each other
The reasonable user
What is private nuisance?
• Southwark LBC v Mills (2001)
“I do not think that the normal use of a residential flat can possibly be a nuisance to
the neighbours. If it were, we would have the absurd position that each, behaving normally
and reasonably, was a nuisance to the other … I do not understand how the fact that the
appellants' neighbours are living in their flats can in itself be said to be unreasonable. If it is,
the same, as I have said, must be true of the appellants themselves.”
– Per Lord Hoffman (p.15)
Fundamental common law principle that you can do what you like as long as you’re
reasonable (Hunter v Canary Wharf [1997] 2 WLR 684).
-
-
- Benjamin v Storr (1874) LR 9 CP 400).
Walter v Selfe (1851) 4 De G & Sm 315
,The balancing exercise – a reality check
‘Nearly all of us living in these islands have to put up with a certain amount of annoyance
from our neighbours... Intervention…is only justified when the irritating noise causes
inconvenience beyond what other occupiers…can be expected to bear.’
Per Lawton LJ in Kennaway v Thompson [1980] 3 All ER 329.
Nuisance as a balancing exercise
‘A balance has to be maintained between the rights of the occupier to do what he likes with
his own land, and the right of his neighbour not to be interfered with.’
Per Ld. Wright in Sedleigh-Denfield v O’Callaghan [1940] AC 880.
The nature of locality – difference expectations from one place to another ie sounds in
Liverpool compared to chieveley – rational expectation
- Can’t use hindsight per Thesiger LJ: ‘What would be a nuisance in Belgrave Square
would not necessarily be so in Bermondsey’.
- St.Helen’s Smelting Co v Tipping: ‘One shouldn’t expect to breathe the clean air of the
Lake District in an industrial town like St. Helen’s.’
- Nature of locality is a question of the PRESENT
o Can’t apply hindsight
o Usually in cases of planning permission
Coventry – clarifies law
- Concerned a speedway
o Similar to a stadium but purely for speed cars/bikes etc
- Built in 1976
- Mainly used as motorcross track
o Had more than sufficient planning permission
- 2006 – cl move to a bungalow near the stadium
o Try to put forward a nuisance
- Planning permission was indicative of a change however doesn’t give a blank cheque
to make as much noise as they want
o Must be curtailed within grounds of reasonableness
Gillingham BC v Medway (Chatham) Dock Co Ltd [1993]
- Planning permission doesn’t stretch to unreasonableness
- Disused dock, mixed residential area
D decides to make it into a 24hr dock
o Planning permission shows there is an intention for regeneration
- Judgement]
o Granting of planning permission is a way of making it more difficult to bring a
nuisance claim but will never clean your hands by proxy
, If you have gone beyond reasonableness in that new confine, there
can still be a nuisance claim
Wheeler
- Locality is the countryside
- Outhouses turned into holiday cottages
- Pig farmer gets planning permission to extend pig farm
o Builds it 11 ft from holiday cottages
- Still have a duty to be a good neighbour
Intensity of the interference
- Courts will only want to respond in cases of high intensity
- A nuisance is only a nuisance at a time when it becomes an issue to the claimant
o Kennaway v Thompson (1981)
Man-made lake with residential housing looking onto it
Operated motorboat racing since the 1960s
Loud machines, people, water etc
1972 – cl moves to a house adjoining the lake
Know it’s there
Between the time they move and the time they bring an
action, motorboat racing becomes increasingly popular
o More noise, longer opening hours, more boats on the
lake, more pollution
Becomes substantially more busy
Sought damages and an injunction
£1000 from the day it became a nuisance (shown by club) to
the date of the trial (backward damages)
£15,000 forward damages for damages to the house
“To have to live each year, from about 9 a.m. until dusk each day from
the end of March to the beginning of November in the expectation
that at any moment, particularly at week-ends, she would be
subjected to unpleasant noises was a burden which prima facie she
ought not to have to bear.” – Per Lawton LJ at p.91
- Duration and frequency
o Cunard v Antifyre Ltd [1933] 1 KB 551, per Talbot J at 557: ‘Private
nuisances...are interferences for a substantial length of time...’
Not a one-off
Must have persistency
o De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914) 30 TLR 257.
o Crown River Cruises v Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep 533.
o Bolton v Stone [1950] 1 KB 201, CA.
Reasonable user and abnormal sensitivity
- Defendant’s conduct must affect the ordinary person
o Robinson v kilvert
Clarifies if it doesn’t affect anything else it is an abnormal
insensivity
, o Mckinnon Industries ltd v walker
o Heath v Mayor of Brighton
Sensitivity of person
Church and pastor at church, and local power-station
Drop in people attending church was directly because the power-
station meant people could not pray in complete silence
Abnormally sensitive
- Christie v Davey [1893] 1 Ch 316.
• 2 joining houses
• Man does music lessons at home
• Does it for 3 years without a problem
• Neighbour becomes unhappy after 3 years
• No change causes this unhappiness
• He decides to scream, yell, throw things eg pots against the wall, make
animal noises
• Still tries to claim nuisance for the music
• Revenge nuisance is not allowed
• Malice prevents a claim from being actionable
- Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468.
• Location – farm
• Nuisance – guns
• Shooting in the sky as close to the original issue persons house during fox
breeding season
• Malice basically annuls a claim
- Bradford Corpn. v Pickles [1895] AC 587.
Who can sue?
- The person with sufficient proprietary interest in the land
- E.g. owners and tenants
- Malone v Laskey [1907] 2 KB 141 – ‘traditional’ approach.
- Khorasandijan v Bush [1993] QB 727 – CA departs from traditional approach.
- Hunter v Canary Wharf Ltd [1997] AC 655
• Building of a tower
• Sued for an interference in tv signal
• HELD: there was no actionable nuisance where the lawful use of someone’s
property disrupts his/her neighbour’s television signals, and
• only those with a proprietary interest in the land or a right to
exclusive possession can bring an action in nuisance
- is hunter a harsh rule?
• Harshness has been mitigated in some circumstances
• Pemberton v Southwark LBC [2000] 1 WLR 1672.
• Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55.
• Jones v Llanrwst UDC [1911] 1 Ch 393.
• Does Hunter comply with the ECHR?
Lecture 1 – Claims in private nuisance
What amounts to a private nuisance?
- A societal law arguably the most social contract law
- Private nuisance is ‘an [unreasonable] interference with a person’s use or enjoyment
of land, or of some other right over or in connection with it.’
o Winfield, P.H. ‘Nuisance as a Tort’ (1931)
- Balancing act as neighbours what can you do with your land, what can I
reasonably expected to deal with
o ‘A balance has to be maintained between the rights of the occupier to do
what he likes with his own land, and the right of his neighbour not to be
interfered with’
Per Ld. Wright in Sedleigh-Denfield v O’Callaghan [1940] AC 880.
- ‘Nearly all of us living in these islands have to put up with a certain amount of
annoyance from our neighbours... Intervention…is only justified when the irritating
noise causes inconvenience beyond what other occupiers…can be expected to
bear.’
o Per Lawton LJ in Kennaway v Thompson [1980] 3 All ER 329
- Land, use of land, enjoyment of land
- Legal relationship with each other
The reasonable user
What is private nuisance?
• Southwark LBC v Mills (2001)
“I do not think that the normal use of a residential flat can possibly be a nuisance to
the neighbours. If it were, we would have the absurd position that each, behaving normally
and reasonably, was a nuisance to the other … I do not understand how the fact that the
appellants' neighbours are living in their flats can in itself be said to be unreasonable. If it is,
the same, as I have said, must be true of the appellants themselves.”
– Per Lord Hoffman (p.15)
Fundamental common law principle that you can do what you like as long as you’re
reasonable (Hunter v Canary Wharf [1997] 2 WLR 684).
-
-
- Benjamin v Storr (1874) LR 9 CP 400).
Walter v Selfe (1851) 4 De G & Sm 315
,The balancing exercise – a reality check
‘Nearly all of us living in these islands have to put up with a certain amount of annoyance
from our neighbours... Intervention…is only justified when the irritating noise causes
inconvenience beyond what other occupiers…can be expected to bear.’
Per Lawton LJ in Kennaway v Thompson [1980] 3 All ER 329.
Nuisance as a balancing exercise
‘A balance has to be maintained between the rights of the occupier to do what he likes with
his own land, and the right of his neighbour not to be interfered with.’
Per Ld. Wright in Sedleigh-Denfield v O’Callaghan [1940] AC 880.
The nature of locality – difference expectations from one place to another ie sounds in
Liverpool compared to chieveley – rational expectation
- Can’t use hindsight per Thesiger LJ: ‘What would be a nuisance in Belgrave Square
would not necessarily be so in Bermondsey’.
- St.Helen’s Smelting Co v Tipping: ‘One shouldn’t expect to breathe the clean air of the
Lake District in an industrial town like St. Helen’s.’
- Nature of locality is a question of the PRESENT
o Can’t apply hindsight
o Usually in cases of planning permission
Coventry – clarifies law
- Concerned a speedway
o Similar to a stadium but purely for speed cars/bikes etc
- Built in 1976
- Mainly used as motorcross track
o Had more than sufficient planning permission
- 2006 – cl move to a bungalow near the stadium
o Try to put forward a nuisance
- Planning permission was indicative of a change however doesn’t give a blank cheque
to make as much noise as they want
o Must be curtailed within grounds of reasonableness
Gillingham BC v Medway (Chatham) Dock Co Ltd [1993]
- Planning permission doesn’t stretch to unreasonableness
- Disused dock, mixed residential area
D decides to make it into a 24hr dock
o Planning permission shows there is an intention for regeneration
- Judgement]
o Granting of planning permission is a way of making it more difficult to bring a
nuisance claim but will never clean your hands by proxy
, If you have gone beyond reasonableness in that new confine, there
can still be a nuisance claim
Wheeler
- Locality is the countryside
- Outhouses turned into holiday cottages
- Pig farmer gets planning permission to extend pig farm
o Builds it 11 ft from holiday cottages
- Still have a duty to be a good neighbour
Intensity of the interference
- Courts will only want to respond in cases of high intensity
- A nuisance is only a nuisance at a time when it becomes an issue to the claimant
o Kennaway v Thompson (1981)
Man-made lake with residential housing looking onto it
Operated motorboat racing since the 1960s
Loud machines, people, water etc
1972 – cl moves to a house adjoining the lake
Know it’s there
Between the time they move and the time they bring an
action, motorboat racing becomes increasingly popular
o More noise, longer opening hours, more boats on the
lake, more pollution
Becomes substantially more busy
Sought damages and an injunction
£1000 from the day it became a nuisance (shown by club) to
the date of the trial (backward damages)
£15,000 forward damages for damages to the house
“To have to live each year, from about 9 a.m. until dusk each day from
the end of March to the beginning of November in the expectation
that at any moment, particularly at week-ends, she would be
subjected to unpleasant noises was a burden which prima facie she
ought not to have to bear.” – Per Lawton LJ at p.91
- Duration and frequency
o Cunard v Antifyre Ltd [1933] 1 KB 551, per Talbot J at 557: ‘Private
nuisances...are interferences for a substantial length of time...’
Not a one-off
Must have persistency
o De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914) 30 TLR 257.
o Crown River Cruises v Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep 533.
o Bolton v Stone [1950] 1 KB 201, CA.
Reasonable user and abnormal sensitivity
- Defendant’s conduct must affect the ordinary person
o Robinson v kilvert
Clarifies if it doesn’t affect anything else it is an abnormal
insensivity
, o Mckinnon Industries ltd v walker
o Heath v Mayor of Brighton
Sensitivity of person
Church and pastor at church, and local power-station
Drop in people attending church was directly because the power-
station meant people could not pray in complete silence
Abnormally sensitive
- Christie v Davey [1893] 1 Ch 316.
• 2 joining houses
• Man does music lessons at home
• Does it for 3 years without a problem
• Neighbour becomes unhappy after 3 years
• No change causes this unhappiness
• He decides to scream, yell, throw things eg pots against the wall, make
animal noises
• Still tries to claim nuisance for the music
• Revenge nuisance is not allowed
• Malice prevents a claim from being actionable
- Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468.
• Location – farm
• Nuisance – guns
• Shooting in the sky as close to the original issue persons house during fox
breeding season
• Malice basically annuls a claim
- Bradford Corpn. v Pickles [1895] AC 587.
Who can sue?
- The person with sufficient proprietary interest in the land
- E.g. owners and tenants
- Malone v Laskey [1907] 2 KB 141 – ‘traditional’ approach.
- Khorasandijan v Bush [1993] QB 727 – CA departs from traditional approach.
- Hunter v Canary Wharf Ltd [1997] AC 655
• Building of a tower
• Sued for an interference in tv signal
• HELD: there was no actionable nuisance where the lawful use of someone’s
property disrupts his/her neighbour’s television signals, and
• only those with a proprietary interest in the land or a right to
exclusive possession can bring an action in nuisance
- is hunter a harsh rule?
• Harshness has been mitigated in some circumstances
• Pemberton v Southwark LBC [2000] 1 WLR 1672.
• Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55.
• Jones v Llanrwst UDC [1911] 1 Ch 393.
• Does Hunter comply with the ECHR?
