Private Nuisance Flowchart
1. Do they have standing?
Hunter v Canary Wharf: only those with a proprietary interest in the land can sue, mere
occupiers cannot.
- However, there is contention as this would mean that children cannot sue and this
would be inconsistent with A.8 right to private life. The decision was not compatible
with convention rights and thus the courts may depart.
- McKenna v British Aluminium: the court accepted a claim from children on the basis
that there may be a challenge to the standing requirement, but has been no
development since 2012.
- Khatun v UK 1998: the commission held that home was an autonomous concept
which did not depend on proprietary interest rather the factual circumstances and
existence of a sufficient and continuous link to the land in relation to A.8
2. Is the alleged interference capable of being a nuisance?
Only damage that is physical, encroachment or loss of amenity is actionable.
NB: Personal injury damage cannot give rise to a claim.
a. Physical damage
Has there been an emanation causing actual physical damage to land
St Helens Smelting v Tipping: Noxious fumes caused damages to C’s crops and trees
Malone v Laskey: vibrations from building works caused C’s toilet to fall off the wall.
b. Encroachment
The law presumes that there has been damage when something moves from one area to
another e.g. tree branches overhanding from a neighbour or tree roots.
Miller v Jackson: cricket balls from a neighbouring pitch were allowed – footballs also most
likely to be accepted.
c. Loss of amenity
Emanations from one property to another that interferes with their use and enjoyment
within the land, but does not always cause physical damage e.g. smells, sickness, difficulty
sleeping etc.
Hunter v Canary Wharf: dust caused no physical damage but inhibited the enjoyment of the
outside space.
The courts are more willing if there is physical damage, but will allow these claims if it
results in damaging the utility or value of the land.
3. Is the interference reasonable?
The principle of give and take: some nuisances are natural consequences of living where you
do. Not all interferences / emanations are nuisances unless there is physical damage: a
1. Do they have standing?
Hunter v Canary Wharf: only those with a proprietary interest in the land can sue, mere
occupiers cannot.
- However, there is contention as this would mean that children cannot sue and this
would be inconsistent with A.8 right to private life. The decision was not compatible
with convention rights and thus the courts may depart.
- McKenna v British Aluminium: the court accepted a claim from children on the basis
that there may be a challenge to the standing requirement, but has been no
development since 2012.
- Khatun v UK 1998: the commission held that home was an autonomous concept
which did not depend on proprietary interest rather the factual circumstances and
existence of a sufficient and continuous link to the land in relation to A.8
2. Is the alleged interference capable of being a nuisance?
Only damage that is physical, encroachment or loss of amenity is actionable.
NB: Personal injury damage cannot give rise to a claim.
a. Physical damage
Has there been an emanation causing actual physical damage to land
St Helens Smelting v Tipping: Noxious fumes caused damages to C’s crops and trees
Malone v Laskey: vibrations from building works caused C’s toilet to fall off the wall.
b. Encroachment
The law presumes that there has been damage when something moves from one area to
another e.g. tree branches overhanding from a neighbour or tree roots.
Miller v Jackson: cricket balls from a neighbouring pitch were allowed – footballs also most
likely to be accepted.
c. Loss of amenity
Emanations from one property to another that interferes with their use and enjoyment
within the land, but does not always cause physical damage e.g. smells, sickness, difficulty
sleeping etc.
Hunter v Canary Wharf: dust caused no physical damage but inhibited the enjoyment of the
outside space.
The courts are more willing if there is physical damage, but will allow these claims if it
results in damaging the utility or value of the land.
3. Is the interference reasonable?
The principle of give and take: some nuisances are natural consequences of living where you
do. Not all interferences / emanations are nuisances unless there is physical damage: a
