Term
| What are the three elements you must show for a claim in private nuisance? |
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Definition
i) Indirect interference
ii) Damage
iii) Unlawful interference |
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Term
| What are the two types of damage actionable under private nuisance? |
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Definition
i) Damage to property
ii) SPD |
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Term
| In bring a claim for 'damage to property' under private nuisance, which elements of the 'unlawful interference test' must you consider? |
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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 |
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Term
| In order to bring a claim for 'SPD' under private nuisance, which elements of the 'unlawful interference' test must you consider? |
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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 |
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Term
| What are the different elements that may be considered when looking at the 'unlawful interference' element of private nuisance? |
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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 |
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Term
| The third element of private nuisance is 'unlawful interference'. What does this mean? |
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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. |
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Term
| How do the courts determine whether the D's activity, which causes the nuisance, amounts to an unreasonable use of his land? |
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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 |
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Term
| To make things easier, what will I refer to the different elements of the unlawful interference test as? |
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Definition
| The reasonableness test considerations. |
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Term
| The reasonableness test consideration 'time/duration', when considered in relation to a physical damage claim, is important because... |
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Definition
| If the nuisance was a one off event, the court will not award an injunction (pointless), it will award damages |
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Term
| If the court determines that the Ds activity, which created the nuisance, = reasonable use fo his land, what will happen? |
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Definition
| The nuisance claim will fail - Cambridge Water Company v Eastern Counties Leather [1994] |
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Term
| Cambridge Water Company v Eastern Counties Leather [1994] - on reasonable use of the land |
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Definition
| WHERE THE ACTIVITY WHICH CREATED THE NUISANCE = REASONABLE USE OF THE LAND, THE CLAIM FOR NUISANCE WILL FAIL |
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Term
| When applying the 'unlawful interference' test, how do the courts reach their conclusion? |
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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. |
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Term
| Sedleigh Denfield v O'Callaghan [1940] |
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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 |
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Term
| Is the reasonableness test objective or subjective? |
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Definition
| Objective -what is reasonable use in that particular context |
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Term
| In assessing 'unlawful interference' for a physical damage claim, would you consider 'character of the neighbourhood / locality'? |
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Definition
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Term
| Sturges v Bridgman [1879] |
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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 |
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Term
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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'. |
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Term
| Laws v Florinplace [1981] |
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Definition
| A SEX SHOP = NUISANCE BECAUSE IT WAS IN A RESIDENTIAL SUBURBAN AREA |
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Term
| Gillingham Borough Council v Medway Dock Co [1993] |
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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 |
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Term
| Watson and others v Croft Promo-sport Ltd [2009] |
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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. |
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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)? |
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Definition
| NO, not necessarily, see Watson and others v Croft Promo-Sport Ltd [2009] |
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Term
| When discussing the reasonable use consideration of 'locality', which cases should you discuss? |
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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] |
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Term
| Is it likely that the courts will find that where an activity creates a public benefit, it will = reasonable use of the land? |
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Definition
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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? |
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Definition
Adams v Ursell [1913]
Bellew v Irish Cement [1948]
Miller v Jackson [1977]
Dennis v MoD [2003] |
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Term
| Which cases can be used to show the courts trying to achieve a balancing act between the individual-sufferer and the public benefit? |
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Definition
Kennaway v Thompson [1981]
Miller v Jackson [1977]
Dennis v MoD [2003] |
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Term
| Adams v Ursell [1913] - on public benefit |
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Definition
| THE FISH SHOP WAS RECOGNISED AS PROVIDING A PUBLIC BENEFIT, HOWEVER, IT WAS STILL HELD TO = NUISANCE, AND THEREFORE COURT ORDERED ITS CLOSURE |
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Term
| Bellew v Irish Cement [1948] |
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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 |
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Term
| Kennaway v Thompson [1981] |
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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 |
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Term
| Miller v Jackson [1977] - on balancing public benefit against nuisance |
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Definition
| COURT AWARDED DAMAGES INSTEAD OF AN INJUNCTION, BECAUSE NUISANCE CREATER CREATED A PUBLIC BENEFIT |
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Term
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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 |
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Term
| Which case criticised the use of 'damages' instead of 'injunctions'? |
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Definition
| Watson v Croft Promo-Sport [2009] |
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Term
| Watson v Croft Promo-Sport [2009] - on remedies which balance public benefit with nuisance |
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Definition
| CRITICISED USE OF DAMAGES IN LIEU OF AN INJUNCTION. STATED THAT DAMAGES IN LIEU OF AN INJUNCTION SHOULD ONLYBE USED IN EXCEPTIONAL CIRCUMSTANCES. |
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Term
| If making a claim for physical damage to property, what effect will the time/duration consideration have? |
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Definition
| It will determine the remedy. If it was a one off event = damages. If it is a continuing event = injunction. |
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Term
| Kennaway v Thompson [1981] |
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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. |
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Term
| What is the general assumption w.r.t the 'continuing state of affairs' element of the 'reasonable use' test? |
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Definition
| The general assumption is that there will not usually be liability in private nuisance for an isolated incident. |
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Term
| In what circumstances might a single one-off incidient be sufficient to mount a claim under private nuisance? |
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Definition
| Where the event/nuisance is as a consequence of a continuous underlying state of affairs. |
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Term
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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. |
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Term
Exceptional quote from Lawton LJ in Kennaway v Thompson [1981]
(exemplifies the need for a balancing act) |
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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' |
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Term
| Crown River Cruises Ltd v Kimbolton Fireworks Ltd |
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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 |
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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'? |
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Definition
| Because there can be liability for an isolated incident where the isolated incident illustrates an underlying state of affairs. |
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Term
| How can you use Crown River Cruises Ltd v Kimbolton Fireworks Ltd in a discussion? |
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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 |
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Term
| What is the 'rule' w.r.t the reasonable test element of 'abmnormal sensitivity'? |
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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 |
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Term
| What are the key cases you have to know for the reasonable test element of 'continuing state of affairs'? |
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Definition
Spicer v Smee [1946] - must be continuing state of affairs
Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] - unusual case |
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Term
| What are the key cases you have to know for 'time and duration' element of the reasonable test? |
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Definition
| Kennaway v Thompson [1981] |
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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? |
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Definition
| Robinson v Kilvert [1889] |
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Term
| Robinson v Kilvert [1889] |
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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. |
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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? |
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Definition
| The C can claim for the FULL EXTENT of his injuries and irritation, even though these are increased by his sensitivity |
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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? |
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Definition
| McKinnon Industries v Walker [1951] |
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Term
| McKinnon Industries v Walker [1951] |
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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 |
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Term
| What does the 'malice' element of the reasonable use test mean? |
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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. |
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Term
| Which cases can be used to illustrate the 'malice' element of the 'reasonable use' test? |
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Definition
Christie v Davey [1893]
Hollywood Silver Fox Farm v Emmett [1936] |
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Term
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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. |
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Term
| Hollywood Silver Fox Farm v Emmett [1936] |
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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 |
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Term
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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 |
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Term
| Castle v St Augustine's Links Golf Club [1922] |
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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) |
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Term
| Celanese Ltd v A.H. Hunt Ltd [1969] |
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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 |
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Term
| Do people in Pimlico have sex? |
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Definition
| NO - Laws v Florinplace [1981] |
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Term
| Sturges v Bridgman [1879] - on 'who gets there first' |
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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. |
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Term
| Can you ever turn around and say 'I've got planning permission, therefore I can continue'? |
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Definition
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Term
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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 |
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Term
| Gillingham Borough Council v Medway (Chatham) Dock Co. [1992] |
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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. |
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Term
| In a private nuisance case concerning physical damage to property, is 'locality' considered? |
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Definition
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Term
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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. |
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Term
| Misc reasonable use consideration 'excessive' - which case? |
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Definition
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Term
| If the C has 'moved to' the nuisance, can they still sue for private nuisance? |
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Definition
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Term
| Why, when the C is the one who has moved to the nuisance, is the C still able to sue? |
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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. |
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