 By the end of the session learners should:  Have a clear understanding of what a nuisance is in Law.  Be able to distinguish between a public and private nuisance.  Have a basic understanding of the factors to prove.

What is it? The tort of nuisance sets out to protect the right to use and enjoy land without interference from others. There are two types of nuisance.  1). Private Nuisance. This is a common law tort.  2). Public Nuisance. This is a crime but it also comes under tort because there are some cases where parties who have suffered as result of public nuisance can sue in tort.  What sorts of things could amount to a nuisance?-see clip

 Look at page 19 of your work packs.  Complete the activity and I will go though the answers at the end.

 Look at the activity on P.20  Read the instructions and complete, I will go through the answers at the end.

 In order for someone to claim under a private nuisance, you must prove 3 things: 1. An indirect interference with the enjoyment of the land. 2. That the interference was unreasonable. 3. That this interference caused damage to the claimant  These are the 3 factors you discuss when problem solving.

 1). Interference with land.  This is essentially where you prove what the nuisance is and where the nuisance has occurred.  There are many ways in which such interference can be caused but what they will have in common is that they must be indirect and that they will usually be the result of a continuing state of affairs and not a one-off incident.  In some cases there will be a physical invasion of a C’s land such as roots of a tree spreading over (Davey v Harrow Corporation) or water flooding onto land.  However nuisance can be caused by something intangible such as noise (Christie v Davey) or smells (Wheeler v JJ Saunders).

 The next factor to prove is based on the notion that the nuisance was unreasonable.  Task!!!How do you think you would decide if something is unreasonable? In your tables and using no notes try to come up with 3 ways in which you think the courts may decide a nuisance is unreasonable.  As each case is individual the courts use 4 factors to help them. 1. Location 2. Duration 3. Malice 4. Sensitivity.

 By the end of the session:  All learners should be able to re-call the 3 factors needed to establish a private nuisance.  Completed unreasonable tasks.  Have completed a private nuisance problem solving task.

 Look at the activity on p.21  using your work packs to get the information complete the chart.  I will go over it.

Duration.  The longer the interference goes on, the more likely it is to be considered unreasonable. However, a nuisance need not necessarily last long. In Crown River Cruises Ltd v Kimblolton Fireworks Ltd, it was held that a 20-minute firework display could amount to nuisance. Locality.  Where the interference takes place will have an important bearing on whether it is reasonable; a landowner in the centre of London cannot expect the same level of peace and quiet as someone who lives in the middle of the country- (St Helens Smelting Co v Tipping Ltd).

Malice  This just means bad motive. Christy v Davey Sensitivity.  A D. is not responsible for damage, which occurs solely because the C or their situation is abnormally sensitive- (Robinson v Kilvert) Top Tip!!!  When problem solving, you should not discuss all 4 factors, just the one’s that apply to the scenario. The factors of duration and locality will always apply.

 Read the scenarios and, in your tables, decide using the 4 factors whether the nuisance was unreasonable.

 How do you prove damage?  The C must prove that the interference actually caused the damage complained of under the rules of causation:  1). But For- Barnett V Chelsea (this is the same as in module 3).  2). Remoteness of damage. Cambridge Water Co v Eastern Counties Leather.

 You must have an interest in land to be able to sue in private nuisance.

There are 3 potential D’s.  1). The creator of the nuisance. Anyone who creates a nuisance by some act (rather than an omission) can be sued for nuisance, regardless of whether that person owns or occupies the land from which the nuisance originates.  2). The occupier of the land. In the majority of cases, the D. will be the occupier of the land from which the nuisance comes.  3). The owner of the land. Where someone other than the occupier is liable.

 Look at the Raj & Jas scenario and use the plan to answer the question.  I will go over it at the end.

 There are a variety of defences available to nuisance but there are three that are the most important and frequently used. The others are on pages of your work packs.

1). Statutory Authority.  Where a statute orders something to be done, and doing that thing inevitably creates a nuisance, there will be no liability because the statute is treated as having authorised the nuisance. Allen v Gulf Oil Refining Ltd.  Residents who lived near an oil refinery brought an action claiming that the refinery was causing a nuisance. The court said that since the alleged nuisance was an inevitable consequence of the operation in the refinery, arising form it’s ordinary working. The defence of statutory authority succeeded and an injunction against the operation of the refinery was refused.  If the nuisance can be avoided by reasonable care and skill, statutory authority will not offer a defence. For example, in the case of Allen, if the owners could have taken steps to make it less noisy or smelly then it could not have been said to be authorised by statute.

 2). Prescription.  A D. may be held to have acquired the right to commit a private nuisance by prescription. This applies where it can be shown that the nuisance has been actionable for at least 20 years and that the C. was aware of this during the relevant period.  The fact that the activity has been carried out for the last 20 years is not enough; it must have amounted to a nuisance for at least that long.  In Sturges v Bridgeman the D. pleaded this defence but it was not allowed. The court said that activity must have been a nuisance to the C for the last 20 years. The fact that it may have been a nuisance to people occupying other property is not sufficient to create a prescriptive right.

3). Act of a third party.  This is where someone will come on to your land and do something to make the nuisance worse e.g. Vandalism. However, you cannot use this if you knew that a third party had been on your land and you did nothing about it.

1). Injunction.  The main aim of this is to make the D. stop the activity, which is causing the nuisance. An injunction may be perpetual which orders the activity to stop completely or it may be partial e.g. limiting opening times. As it is a discretionary remedy an injunction may not be given even where a nuisance is proved. 2). Damages.  Damages can be recovered for damage to the C’s land or the enjoyment of it. Damages can also be given for injury to the C, which is associated with loss of enjoyment such as loss of sleep or discomfort caused by noise or smells. 3). Abatement.  This remedy involves self-help and allows the C to take steps to end the nuisance e.g. trim back over-hanging foliage. You must get permission.