Describe and illustrate the law of private nuisance.

The tort of private nuisance may be defined as the unlawful and indirect interference with a person's use or enjoyment of land in which they have an interest. The tort has developed over a long period of time and exists in common law.

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The tort of private nuisance may be defined as the unlawful and indirect interference with a person's use or enjoyment of land in which they have an interest. The tort has developed over a long period of time and exists in common law. The tort of nuisance is reputed to have existed since the reign of Henry lll.


The authorities have also held that the interference needs to be continuous.


The courts have established that certain key elements need to exist if the tort is to be established. These elements are:


The claimant must have an interest in the land affected by the nuisance. It was Lord Lloyd in Hunter v Canary Wharf (1997) who reminded us that private nuisances may fall into different categories and amount to nuisance


  1. by encroachment on a neighbour's land;

  2. by direct physical injury to a neighbour's land;

  3. by interference with a neighbour's quiet enjoyment of his land.


In many ways it is often easier to explain what amounts to a private nuisance by giving an example of what has been held to amount to an indirect interference. In Sturges v Bridgman (1879) noise was held to be sufficient nuisance. The facts of the case were that a doctor moved next door to a confectioner. The confectioner had produced sweets for sale in his kitchen for many years. The doctor used his own property for private practice. However, the loud noises from the confectioner's industrial equipment could be clearly heard and this disrupted his use and enjoyment of his land.


The locality of the area may be a material consideration and what may be acceptable in one area may not be in another. This point was made clear in Sturges v Bridgman by the now famous words 'What would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey.......'


In the leading case of St Helens Smelting v Tipping (1865) smoke and fumes were the cause of the interference which resulted in damage to trees and shrubs.


Some nuisances may result in damage and some may cause an interference with comfort or enjoyment of land. In Halsey v Esso Petroleum (1961) the defendant company's actions disturbed a neighbour's sleep by causing noise and vibrations as well as damaging clothes from acid smuts.


Some interference is to be expected perhaps, and the courts have determined that for a private nuisance to exist, the interference needs to be unlawful and unreasonable. In addition we have already seen that the courts will give consideration to certain factors such as the locality as in Sturges v Bridgman (1879).


There are other considerations such as the duration of the interference as in Spicer v Smee (1946), or abnormal sensitivity as in Robinson v Kilvert (1889). In this latter case the court held that the claimant was not entitled to a remedy on the basis that he was particularly sensitive to the potential nuisance. The facts were that the claimant's landlord maintained the heat in his cellar at 80ºF (27ºC) temperature for the purposes of his business. The heat affected a paper warehouse business conducted by a tenant on a floor above. The court held that the landlord's use of the cellar was reasonable.


In Christie v Davey (1893) the presence of malice on the part of the defendant was a material factor. The claimant alleged that he had been giving music lessons in his semi-detached house for several years. The defendant, acting out of malice because he was irritated by the noise, banged on the walls, shouted, blew whistles and beat tin trays with the malicious intention of not only annoying his neighbour but also spoiling the music lessons. The court granted an injunction to restrain the defendant's behaviour.


Malice was also an influencing factor in the leading case of Hollywood Silver Fox Farm v Emmett (1936). In that case the defendant, driven by ill will, deliberately fired guns near the boundary of the claimant's land in order to scare the claimant's silver foxes. The defendant deliberately fired the guns at breeding time when the the foxes were most vulnerable. This was held to be a nuisance and the precedent set in Christie v Davey was followed.


In Bradford Corporation v Pickles (1895), the claimant deliberately diverted water flowing through his land, away from his neighbour's property. The claimant intended to force them to buy his land at an inflated price. Despite the question of motive the court held that he was committing no legal wrong because no-one has a right to uninterrupted supplies of water which percolates through from adjoining property.


The law of tort is ordinarily concerned with identifying who is blameworthy and the tort of private nuisance is no exception. Ordinarily damages follow an award in a civil case and therefore an essential element is the correct identification of the party or parties responsible for the nuisance.


Over the years a number of defences have developed and may be effective in defeating a claim of nuisance. The first of these is known as prescription and this arises if it can be shown that the nuisance has continued for 20 years without interruption. This issue arose in the case of Sturges v Bridgman (1879).


The defence of statutory authority may be pleaded if it can be shown that the activities complained of by the claimant were authorised expressly or implied by a statute. In Allen v Gulf (1981) it was shown that Parliament intended a refinery to be constructed and the defence was allowed.


Issues of environmental harm and economic benefit are often argued out in the context of planning permissions granted by local authorities. Subsequent environmental harm may give rise to nuisance but the planning permission can appear to be a valid justification for what in effect amounts to a nuisance.


Such arguments arose in the case of Gillingham Borough Council v Medway (Chatham) Dock Co Ltd (1993) which involved permission for the defendant company to redevelop Chatham Dockyard as a commercial port. The council argued that the economic benefit would far outweigh any potential noise problems. In the event the problem got so bad at one time that some 750 lorries were used in the port each day around the clock. However the case turned on the issue that the port had changed in its character over a period of years and this was more important when deciding what amounted to unreasonable behaviour.


The question of whom may be sued may be an important matter when it comes to a remedy and particularly if the nuisance is continuing. This might include any person who creates the nuisance whether or not that person is the occupier of the land at the time of the action. It may extend to occupiers who adopt and continue to allow nuisances on their land. This may be so even if such nuisances were created by their predecessors in title, trespassers or third parties. Finally a landlord may be liable for nuisances in some circumstances, e.g. if the landlord had knowledge of the nuisance but still carried on and let the property, or where the landlord reserved the right to enter and repair the premises but did not act to deal with the nuisance.


In civil law, damages are a natural remedy and the law of nuisance is no exception. However, with a nuisance which is still continuing, damages may not be enough in themselves if the award is not sufficient to bring an end to the nuisance. It follows that the remedy of an injunction is commonly sought as a remedy in nuisance actions.


However there can be no certainty that an injunction will be granted. The courts need to be satisfied about certain conditions and this includes the point that damages in themselves would be inadequate.


The grant of an injunction is discretionary and there must be no impediment to the court exercising its discretion. There are also limitations to the court's supervisory powers in the sense that the courts do not have limitless resources at its disposal to police the actions of parties (Kennaway v Thompson (1981).


Finally it must be pointed out that a private nuisance is one thing. A public nuisance is something else and something which affects the comfort and convenience of a class of people and needs separate consideration.


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