Nuisance
In a nutshell, Nuisance is concerned with reasonableness, in particular the
reasonable user of land and reasonable expectations. Nuisance is basically
unreasonable use of land.
An actionable private nuisance occurs where a person’s use of enjoyment of
their land is unlawfully interfered with by activities carried on by another
person on their land.
In most cases, the two areas of land are likely to be close together and the
activities complained of must generally be continuous, but it is possible in rare
circumstances, for a ‘one-off activity’ to amount to a nuisance.
Assessing Nuisance: the primary test is reasonableness; the court will try to
balance each party’s rights to use the land as they wish.
Damage in nuisance can lie for: oil spills.
Nasty smells
Noise and anything else, which affects nearby land or the comfort and
convenience of the occupiers of that land
There are few overlaps btw nuisance and negligence but, this is a
separate tort
Elements of the tort are:
Unreasonable use of land
Which causes indirect interference with another’s land (Three types-
Llyods quote)
Causing damage
Nuisance is concerned with the use of land in the broad sense, can include: the
right to grow crops and graze animals; shooting rights; fishing rights; timber
rights; leisure and domestic activity; and mineral rights
Land is key to the tort of nuisance
We are dealing with private nuisance: this is
unreasonable use of land which causes interference with another’s land
Hunter v Canary Wolf:
,This case provides us with a useful idea as to what constitutes a main type of private
nuisance. Lord Lloyd stated:
“Private nuisances are of three kinds. They are:
(1) nuisance by encroachment on a neighbour’s land; (encroachment –
poisoning fish in a pond, releasing poisonous fumes etc)
(2) nuisance by direct physical injury to a neighbour’s land; (building a
structure on your land which may damage your neighbours land) and
(3) nuisance by interference with a neighbour’s quiet enjoyment of his land.
(this refers to noise and social activity) ”
Nuisance requires some kind of fault… This is what is meant by unreasonable –
(the use of land has been faulty due to acting unreasonably). Fault in
nuisance can be negligent or intentional. okay, so in Rylands v fletcher you
don’t need to have used your land in an unreasonable way, the damage just
needs to occur.
There needs to be some fault and it is not a tort of strict liability(- no need to
establish fault on the part of the defendant, just need to show that the tort
occurred-). There must be some kind of damage. It is not actionable damage per
se but there needs to be damage for actionable nuisance. This has to be damage
to land and needs to connect to land. It cannot be personal injury. If you are
injured through protecting your property you sue in negligence. When it comes
to the remoteness of damage we follow the same rules in negligence – the
wagon mound test of reasonable foreseeability.
Nuisance protects your enjoyment of that land. It does not protect absolutely
everything connected with land. There is no such thing for example a right to a
view. Likewise there is no right to unlimited TV reception.
Structure for answering nuisance:
1. who can sue whom
2. in what tort, for what damage
3. are there any defences
who can sue:
,Claimant needs to have a proprietary interest in the land –exclusive
possession or (non resident landlord if the nuisance is likely to cause to
permanent damage to the property), as per Hunter v Canary Wharf.
Elaboration
the traditional view is that the claimant had to have an interest in the land
affected by the private nuisance in order to succeed in an action. This would
normally mean a right to exclusive possession by way of a freehold or
leasehold. is there a but….(come back to clarify this, if the test has changed)
So a person who only had the use of land without exclusive possession or any
other proprietary interest (e.g licensees, guests, member of the owner’s family
were deemed to have no interest in land and therefore no cause of action)
Malone v Laskey
FACTS: A company manager a licensee, lived with his wife the claimant, in a house owned by the
company. A falling bracket injured the wife. This was shaken out of place by vibrating machinery on
the defendant’s adjoining land. She sought to sue in nuisance.
HELDL: The Court of Appeal said the wife had no case: even her husband was merely a licensee in
occupation of the house. The wife had no legal or equitable interest in the premises on which to
found a claim in nuisance. The damage was personal injury and nuisance only protected the use of
land. You can use this case to distinguish in a problem question
Hunter v Canary Wharf (concerned who can sue whom).
Facts: When the canary wharf tower was built, local residents complained of
interference with their TV reception because of the construction work
HELD: The Court of Appeal decided that loss of this kind of recreational facility was not
sufficient interference to give rise to an action in nuisance. The House of Lords said there
might be a nuisance if reception was affected by activities (e.g. involving electrical
discharges) on DD's premises, but the mere presence of a building was not capable of
constituting a nuisance. The House of Lords held that this amounted to interference with a
‘purely recreational facility as opposed to the interference with the health or physical
comfort or well-being’ of the claimant. Nuisance does not protect a right to TV reception in
the same way it does not protect a right to a view. Lord Goff stated:
“An action in private nuisance will only lie at the suit of a person who has a right
to the land affected. Ordinarily, such a person can only sue if he has the right to
exclusive possession of the land, such as a freeholder or tenant in possession, or
even a licensee with exclusive possession.”
This decision restated private nuisance as a tort concerned with property rights and not
one which protected against nuisance caused to individuals independently as it can only be
, brought by a person with rights to exclusive possession of the property such as an owner or
tenant (or non resident landlord if the nuisance is likely to cause permanent damage to his
property)
Analysis: this leaves a lacuna and arises in the problem of people who happen to
live in a property (without proprietary interests). This was addressed in the case
of:
Dobson v Thames Water Utilities
Facts: The claimants brought a Group action against Thames Water. The
proprietary claimants brought claims in nuisance on the basis that their land was
affected by smells and mosquitoes emanating from the Works. The non-
proprietary claimants brought claims for damages under the HRA alleging that
Thames Water was a public authority, and that the smells and mosquitoes
constituted an unjustified interference with their right to respect for their
“home” under Article 8 of the ECHR.
Held: The claimants who had legal rights sued successfully. The claimants who
had no legal rights sued successfully under Article 8.
One problem with this is that under the Human Rights Act an individual can
only sue a public authority. This means you cannot sue your private neighbour
because they have no obligations under HRA.
Who can be sued?
1) Creators: (Any person who creates the nuisance can be sued,
whether or not that person is the occupier of the land at the time of
the action. They must have physically created the nuisance even if
they have nothing to do with the land for example independent
contractors).
2) Occupiers: (occupiers who adopt and continue to allow nuisances
on their land may also be liable, even if such nuisances were
created by predecessors in title, trespassers or third parties)
3) Landlords: (A landlord may be liable for nuisances emanating from
land, e.g. if the landlord had knowledge of the nuisance before
letting, or where the landlord reserved the right to enter and repair
the premises).
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