Outline the requirements for a claim in private nuisance and explain the factors taken into account by the courts when considering such a claim.
- Private nuisance commonly defined as an unreasonable interference with the use or enjoyment of land. It protects against ‘indirect’ interferences such as excessive noise and the emission of smells or noxious fumes. A private nuisance normally requires proof of an ongoing state of affairs British Celanese v Hunt Ltd (1969); duration and frequency are relevant factors.
- Not every interference will amount to a nuisance; it is only when the defendant’s activity, measured by the standards of an ordinary person it becomes unlawful. The approach taken by the courts is one of compromise, a "rule of give and take, live and let live": Bamford v Turnley (1862). It must be an inconvenience interfering with the ordinary physical comfort: “not merely according to elegant or dainty modes and habits of living” Walter v Selfe (1851)
- In considering what is reasonable the law does not take account of abnormal sensitivity in either persons or property. Robinson v Kilvert(1889) and McKinnon Industries v Walker (1951). What may be a nuisance at night may not be an unreasonable interference during the day Halsey v Esso Petroleum Co Ltd (1961)
- The nature of the locality is taken into account ‘What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’. Sturges v Bridgman (1879).
- Planning permission: in Wheeler v JJ Saunders Ltd (1996) the grant of planning permission did not change the nature of the locality and the defendants were liable. Planning permission granted for a large-scale strategic development may change the character of the locality Gillingham Borough Council v Medway (1993). In Coventry v Lawrence (2014) the Supreme Court confirmed that planning permission is not a defence to nuisance.
- Conduct which is motivated by malice on the part of the defendant may convert what would otherwise have been a reasonable and lawful act into an actionable nuisance Christie v Davey (1893) and Hollywood Silver Fox Farm v Emmett (1936)
Discuss the potential liability of Jordan and Edith in respect the following situation.
Jordan makes model airplanes in his spare time. He is in the habit of burning the rubbish created by his hobby in his back garden. Jordan’s bonfires cause smoke and fumes to drift from his garden onto Edith’s land and damage the delicate plants that she cultivates on her patio. The smoke and fumes also create so much unpleasantness for Edith’s friend, Jill that she can no longer spend weekends at Edith’s house. On one particular occasion, an aerosol can containing a highly inflammable substance was among the rubbish thrown onto the bonfire by Jordan. This created a massive explosion which shattered the windows in nearby houses. Pieces of flying metal from the container damaged cars parked on the highway and injured Atif, a passing cyclist. When Jordan ignored Edith’s requests to stop the bonfires she decided to retaliate by playing music at a very high volume through a loudspeaker close to Jordan’s house between 3am and 6am each day.
Consider the factors taken into account by the court to determine if the emission of smoke and fumes from Jordan’s land constitute an unreasonable interference with Edith’s use and enjoyment of land.
To sue in private nuisance, a claimant must have an interest in the land affected: Malone v Laskey (1907); Hunter v Canary Wharf (1997). Jill has no claim in public nuisance
- The massive explosion created by the aerosol can may amount to a public nuisance. While private nuisance protects an individual’s interest in land, public nuisance is concerned with protecting the interests of the wider public.
- The activity or interference giving rise to liability must be unreasonable and in this sense the two torts are similar. However, private nuisance requires an ‘ongoing’ state of affairs whereas an isolated incident can give rise to an action in public nuisance.
- A public nuisance is an act or omission which ‘materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects’. Not all those in the class affected are permitted to sue; an individual member of the class will only succeed where he suffers ‘particular damage’ over and above the rest of the class Tate & Lyle Food and Distribution Ltd v GLC (1983). Atif appears to have suffered damage over and above the rest of the class affected.
- What may be a nuisance at night may not be an unreasonable interference during the day Halsey v Esso Petroleum Co Ltd (1961). Even if the interference would not constitute a nuisance if done in the ordinary and reasonable use of property Edith may still be liable because her conduct was motivated by malice Christie v Davey (1893) Hollywood Silver Fox Farm Ltd v Emmett (1936).