Nuisance Lucy Speaight

Nuisance – Lucy Speaight

The definition of private nuisance is a ‘continuous, unlawful and indirect interference with a person’s use or enjoyment of land or some right over, or in connection with.’ Although there is a public nuisance it is not used often and mainly effects anyone obstructing Thomas v NUM or projecting noble v Harrison highways or affecting the condition of it Griffiths v Liverpool corporation .Anyone ‘affecting a reasonable class of her majesties citizens materially or in reasonable comfort or convenience of life’ Nuisance covers an indirect interference by the tortfeaser because direct interference is covered by trespass. This area of the law is more concerned with prevention of nuisance continuing rather than compensating. Nuisance is generally a law that covers disputes between neighbors but is only for unreasonable actions of a defendant and not for trivial disputes. Only a person who has propriety interest in the land affected by the nuisance will succeed in suing as a claimant. Nuisance usually affects occupiers and so normally the claimant is a landowner, an occupier suing for the benefit of others or a tenant. The three key elements of nuisance are the unlawful use of land, indirect interference with the land and indirect interference with the claimants use or enjoyment of their land. The unlawful or unreasonable use of the land is when interference alone is insufficient and it must be unlawful, unlawful also refers to unreasonable. This means that the locality must be taken into consideration because in some areas acts won’t be considered a nuisance whereas they might be in others. Sensitivity of the claimant is also important as some people would be more sensitive to nuisance than others but this may make the judge fail the claim as in Robinson v kilvert 1889 however in network rail infrastructure ltd v CJ Morris 2004 the court of appeal suggested the test of sensitivity may no longer be needed. The interference must be a continuous annoyance Bolton v stone 1950 although short spans have been accepted crown river cruises ltd v kimbolton fireworks ltd 1996. Malice is also a factor that effects the outcome of a nuisance trial and a deliberately harmful act will normally be considered nuisance as in Hollywood silver fox farm v Emmet 1936 however if the claimant retaliated through malice before taking action in court they may find themselves no longer the claimant and now the defendant having an injunction bought against them by the previous defendant. Although it is more likely that the judge would fail the claim because of the retaliation from the claimant. The state of the defendants land is also a factor that needs to be taken into consideration as the defendant has a duty to not ignore things that might cause an interference Goldman v Hargrave 1967. Overall however if the nuisance has carried on for twenty years without complaint it is deemed not a nuisance and so the defendant may carry on as before. Person’s whom may be sued include the creator of the nuisance but who does not have to be the occupier such as Southport corporation v Esso petroleum 1953 or the person who authorized the nuisance. A person may also adopt the nuisance who could be either a stranger or trespasser or the act could be a natural occurrence. Landlords can be liable to tenants for negligent failure to repair under the usual covenants or under the defective premises act 1972 or from want of repair under the rule in Wring v Cohen 1940.

Many activities being licensed Hammersmith railway v Brand 1869 and as stated above prescription where a claimant would be unable to complain if the action has been around for twenty years without complaints before. Acts of a stranger or trespasser if not adopted. Consent and public policy which considers both sides and usefulness if insufficient excuse Adams v Ursell 1913. Although mainly of one of three available remedies are awarded damages, injunction and abatement of nuisance. Damage is tested by the remoteness as in the wagon mound testing the foreseeability although a claimant may claim for damages against physical loss depreciation in value and business losses. For injunctions the idea is to prevent further nuisance by stopping it occurring but it can be coupled with damages. Abatement of nuisance may involve the entering of a defendant’s property but it could lead to a counter injunction or may not be even possible. For Norman and Emma the nuisance they are experiencing is a private one as it is a continuous unreasonable indirect interference with the couple’s enjoyment of their land these are similar claims made by the claimant in St Helens smelting co. V Tipping. Although they were aware of the extension they were unaware of it carrying on into late evenings whilst they tried to sleep. Due to the locality people are not use to building work sounds although it is normal for people to build extensions. It states in the case study that both Norman and Emma are overly sensitive. This may cause a judge to rule in favour of the defendant but because Norman and Emma have attempted to talk to their neighbour about the hours that he is building the extension but having ignored them and carried on regardless he has acted out of malice. He has also indirectly caused damage to their land ruining the flowers with leaking paint but they also have to deal with the smell of chemicals from the rubbish left at the bottom of the garden...... actions of malice in order to spite his neighbour’s and indirect damage by the state of his own property will cause a judge to rule in the favour of Norman and Emma because of the continuous interference over a period of time at unreasonable hours during the night. Emily like Norman and Emma have experienced the noise during the late night but in retaliation has been playing loud music to annoy her neighbour. As she hasn’t experienced damage or attempted to talk to her neighbour about how the noise is upsetting her, her claim is likely to fail. Her actions of malice in retaliation similar in Christie v davey are likely to be the reasons for her claim failing but not attempting to communication with her neighbour will also be a participating factor.