PRIVATE NUISANCE ESSAY
“A balance has to be maintained between the right of the occupier to do which he likes with his own,
and the right of his neighbour not to be interfered with”
(per Lord Wright in Sedleigh-Denfield v O’Callaghan [1940]).
Critically evaluate the various factors a court will consider in applying the principle of ‘reasonable
user’ in the tort of private nuisance.
PLAN
Introduction
This essay will examine the factors associated with the application of “reasonable user” in the tort of
private nuisance to determine how crucial it is to maintain a balance between occupier’s and
neighbour’s rights.
Define
Winfield and Jolovicz define private nuisance as the:
“the unlawful (unreasonable) interference with a persons use or enjoyment of land or some
right over, or in connection with it”
As such to prove a claim in the tort of private nuisance claimants must show there was interference
with the claimants use and enjoyment of the land or some right associated with it and the this was
UNLAWFUL – (unreasonable).
In Hunter v Moss, three types of interferences were recognised; Encroachment, Direct physical injury
to neighbour’s land, Interference with the quiet enjoyment of one’s land.
To determine if such an interference is unlawful (unreasonable), the Sedleigh v Denfield objective
unreasonable test is applied:
“what is reasonable according to the ordinary usages of mankind living in society, or more
correctly in a particular society”
This requires the court to balance the conflicting interests of the reasonableness of the defendants
use of his own land that the unreasonable interference with the claimants right to the enjoyment of
his land. As the test is based upon the reasoning of the ordinary man this is an objective test, but as
the court needs to consider several factors arguably an element of discretion is apparent.
Academia:
Structure
POINT ONE – NATURE AND SERIOUSNESS OF HARM
, The first factor that is taken into consideration by the courts is the nature and seriousness of harm
caused by the interference.
An interference which causes physical damage to the claimant’s land or property is much more likely
to amount to a private nuisance than one which merely causes loss of amenity - St Helen’s Smelting
Co v Tipping.
Aforementioned, in Hunter v Moss.
- they affirmed that both material physical damage and loss of amenity would amount to
interference with property interests, suggesting the same factors should be applied.
If the same factors apply, why is it that interferences falling within loss of amenity are subject to an
exception of “abnormal sensitivity” of the claimant?
- This rule is that, generally there will be no nuisance if the claimant suffers damage only
because they are abnormally sensitive to the defendants activity (Robinson v Kilvert) as
objectively a normal person or user would not be affected.
EVALUATE?
- The difference in treatment enables those who have suffered physical damage to be have
preference over any loss of amenity claims.
- Arguably this is unfair and removes objectivity about test and introduces more discretion to
what is perceived to be abnormally sensitive?
- BUT
o Claimants who can show that is it unlawful compared to the ordinary user can
recover all loss (even if greater) due to their sensitivity – application of egg skull shell
rule (McKinnon v Walker)
▪ As such – claimants in relevant circumstance can get the relvent award of
damage for their sensitivity!
o The remoteness rule as established in Cambridge Water Co v Eastern Counties
Leather plc arguably replace this abnormal sensitivity rule.
▪ “Whether the kind of damage which occurred was reasonably foreseeable to
someone in the defendants position at the time fo the relevant acts were
done”
▪ As such this may enable a claim that usually would be prevented due to the
abnormal sensitivity exception to be acceptable, helping to retain the
objective element of the factors involved.
POINT TWO – DURATION AND FREQUENCY
“A balance has to be maintained between the right of the occupier to do which he likes with his own,
and the right of his neighbour not to be interfered with”
(per Lord Wright in Sedleigh-Denfield v O’Callaghan [1940]).
Critically evaluate the various factors a court will consider in applying the principle of ‘reasonable
user’ in the tort of private nuisance.
PLAN
Introduction
This essay will examine the factors associated with the application of “reasonable user” in the tort of
private nuisance to determine how crucial it is to maintain a balance between occupier’s and
neighbour’s rights.
Define
Winfield and Jolovicz define private nuisance as the:
“the unlawful (unreasonable) interference with a persons use or enjoyment of land or some
right over, or in connection with it”
As such to prove a claim in the tort of private nuisance claimants must show there was interference
with the claimants use and enjoyment of the land or some right associated with it and the this was
UNLAWFUL – (unreasonable).
In Hunter v Moss, three types of interferences were recognised; Encroachment, Direct physical injury
to neighbour’s land, Interference with the quiet enjoyment of one’s land.
To determine if such an interference is unlawful (unreasonable), the Sedleigh v Denfield objective
unreasonable test is applied:
“what is reasonable according to the ordinary usages of mankind living in society, or more
correctly in a particular society”
This requires the court to balance the conflicting interests of the reasonableness of the defendants
use of his own land that the unreasonable interference with the claimants right to the enjoyment of
his land. As the test is based upon the reasoning of the ordinary man this is an objective test, but as
the court needs to consider several factors arguably an element of discretion is apparent.
Academia:
Structure
POINT ONE – NATURE AND SERIOUSNESS OF HARM
, The first factor that is taken into consideration by the courts is the nature and seriousness of harm
caused by the interference.
An interference which causes physical damage to the claimant’s land or property is much more likely
to amount to a private nuisance than one which merely causes loss of amenity - St Helen’s Smelting
Co v Tipping.
Aforementioned, in Hunter v Moss.
- they affirmed that both material physical damage and loss of amenity would amount to
interference with property interests, suggesting the same factors should be applied.
If the same factors apply, why is it that interferences falling within loss of amenity are subject to an
exception of “abnormal sensitivity” of the claimant?
- This rule is that, generally there will be no nuisance if the claimant suffers damage only
because they are abnormally sensitive to the defendants activity (Robinson v Kilvert) as
objectively a normal person or user would not be affected.
EVALUATE?
- The difference in treatment enables those who have suffered physical damage to be have
preference over any loss of amenity claims.
- Arguably this is unfair and removes objectivity about test and introduces more discretion to
what is perceived to be abnormally sensitive?
- BUT
o Claimants who can show that is it unlawful compared to the ordinary user can
recover all loss (even if greater) due to their sensitivity – application of egg skull shell
rule (McKinnon v Walker)
▪ As such – claimants in relevant circumstance can get the relvent award of
damage for their sensitivity!
o The remoteness rule as established in Cambridge Water Co v Eastern Counties
Leather plc arguably replace this abnormal sensitivity rule.
▪ “Whether the kind of damage which occurred was reasonably foreseeable to
someone in the defendants position at the time fo the relevant acts were
done”
▪ As such this may enable a claim that usually would be prevented due to the
abnormal sensitivity exception to be acceptable, helping to retain the
objective element of the factors involved.
POINT TWO – DURATION AND FREQUENCY
