Nuisance Unit 90

Nuisance Private nuisance Public nuisance

Private nuisance “regulates…conflicts between neighbours, defining their mutual rights and obligations with respect to land use by striking a fair and reasonable balance between them.” Tort Law, Horsey and Rackley Private nuisance deals with disputes between neighbours, not neighbours in the sense of negliegence, but actual neighbours who live in the same area. The legal scholars Horsey and Rackley describe PN as “regulates…conflicts between neighbours, defining their mutual rights and obligations with respect to land use by striking a fair and reasonable balance between them.”

Private nuisance Unreasonable interference with the claimant’s use or enjoyment of land Only an owner or an occupier with right of possession (e.g. a tenant) can claim The tort of PN occurs when there is Unreasonable interference with the claimant’s use or enjoyment of land It is important to know that it is a land tort, so it is related not to personal rights but land rights That means that are Important limits in relation to this tort: only an owner or an occupier with right of possession (e.g. a tenant) can claim (not children, family members, au pairs, lodgers, care home residents etc) > A lodger someone who rents a room in a house

Types of private nuisance Emanations resulting in physical damage to land or a reduction of its amenity value Encroachment There are different types of inteference which can constitute private nuisance. Emanations resulting in physical damage to land e.g. pollution which damages plants, or cricket balls or fireworks. This includes physical damage to things on the land – buildings or plants, but it does not include personal injury. It is not possible to claim for personal injury in private negligence. It also includes Emanations resulting in reduction of amenity value of land. This means that they reduce the claimants use and enjoyment of his land > another way of saying this is that the emanations cause discomfort to the land user e.g. noise which stops residents sleeping or unpleasant smells These must usually be continuous or recurrent. Encroachment: long-term violation of boundaries e.g. overhanging tree branches 5

What is unreasonable interference with someone’s use of his land? Physical damage to land is generally unreasonable. Factors when the claimant has suffered a loss of amenity: duration, frequency and timing nature of the activity character of the neighbourhood but for claims relating to amenity value, the activity must generally be continuous or recurrent Common and ordinary” everyday activities” such as playing the piano or watching tv are not usually unreasonable.> provided the volume and timing are reasonable Character of the neighbourhood > whether an interference is reasonable depends on the character of the neighbourhood > noise and smells which constitute a nuisance in a quiet residential area might not constitute a nuisance in an area with lots of factories > This is a bit problematic > means that poor people who live in areas which are more likley to have industry present are expected to accept a level of noise and pollution which would not be acceptable in a rich residential area.

Claimants and defendants Malicious and negligent defendants Hypersensitive claimants IIf D acts from malice or does not take reasonable care, the interference is more likely to be found unreasonable. If the claimant is “hypersensitive” – particularly sensitive to noise, the court will not give him special treatment > the interference must be something that an “ordinary user of the land” would find unreasonable

Defences Prescription (same level of interference for 20 years) Statutory authority Consent Act of God/nature Unforeseeability of damage BUT it is not a defence that the claimant came to the nuisance Defences Prescription (if an activity has continued at the same level for 20 years, it may not be possible to bring a claim - however, if there is more interference than before because the activity has intensified, then this won't be a defence) Statutory authority Consent Act of God/nature caused the interference foreseeability: any damage must be "reasonably foreseeable" and not too remote BUT not that C "came to the nuisance” (it is not a defence that the state of affairs complained about already existed when C chose to buy or rent the affected property) > buy a house next to a pig farm, you can bring a claim in nuisance, even if the pig farm already existed when you bought the house

Public nuisance A defendant will commit a public nuisance if he unreasonably interferes with either (a) a public right or (b) the comfort, convenience or safety of the public Both a crime and a tort No need to have an interest in property In order to claim damages, C must that he suffered “special damage” Public nuisance A defendant will commit a public nuisance if: he unreasonably interferes with either (a) a public right e.g. blocking a highway or a waterway or (b) the comfort, convenience or safety of the public e.g. releasing toxic chemicals into the air which caused birth defects (damaged can be claimed for personal injury in public nuisance) or creating unreasonable levels of noise Interference must be unreasonable. Private nuisance deals with many of same issues as private nuisance, but in private nuisance issue is what land user in a particular locality should be expected to tolerate, while in public nuisance issue is whether it is a wrong for the community Obviously there is overlap, and some public nuisance claims can, also give rise to private nuisance claims

Remedies Injunction Damages Abatement Remedy: Usually an injunction orders someoen to do something or stop someone doing something equitable remedy (=awarded at the court's discretion, based on what is fair and reasonable) Damages in lieu of an injunction -such damages are, in effect, a reasonable sum for the privilege of being allowed to commit that tort Damages for physical damage to property, replacement/repairs, loss of amenity (not being able to use land for required purpose), Abatement - suppression or termination of the nuisance Abatement is a remedy that allows the claimant to directly end the nuisance, such as trimming back a protruding hedge. If the abatement requires the claimant stepping onto the defendant's land, he must give notice or risk becoming a trespasser.[73]