Requirements of Private Nuisance
Private nuisance is established if the claimant shows that:
- The defendant used land in a way which interferes with other land in which the claimant has a property interest; and
- The interference is substantial and unreasonable.
Uses and Property Interests
The claimant must have a property interest in the land which is interfered with: Hunter v Canary Wharf  AC 655. The interference must be relevant to the claimant’s rights.
This means that the interference must affect the land, either physically or in terms of its amenity and use, beyond a particular occupier’s personal comfort. Beyond this, there is no limit to the forms of actionable nuisance: Fearn v Board of Trustees of the Tate Gallery  UKSC 4.
Kennaway v Thompson  QB 88.
Barr v Biffa Waste Services  QB 455.
Trespass by Objects
Miller v Jackson  3 WLR 20; Smith v Giddy  2 KB 448.
Lemmon v Webb  3 Ch 1.
Sedleigh-Denfield v O’ Callaghan  AC 880.
Intrusive viewing of a property from a neighbouring one was deemed actionable in Fearn v Board of Trustees of the Tate Gallery  UKSC 4.
Purely aesthetic interference (e.g. interference with a view/television signals) was deemed non-actionable in Hunter v Canary Wharf  AC 655. However, Lord Leggatt in Fearn v Board of Trustees of the Tate Gallery  UKSC 4 stated that
‘the ability to watch television might be regarded as so important a part of the ordinary enjoyment of property that interference with it could amount to an actionable nuisance. That might have been so where the interference was caused by a special or particular use of the defendant’s land.’
The interference must also be ‘substantial’. This means that it must go beyond a ‘minor annoyance’ or trifling and small complaints. This is assessed objectively by the standards of an ordinary person in the claimant’s position: Fearn v Board of Trustees of the Tate Gallery  UKSC 4.
Adopting and Continuing the Nuisance
If the defendant’s actions caused the nuisance, the claimant only needs to show that they had sufficient factual or legal control over the land to that they could have prevented the nuisance: LE Jones Ltd v Portsmouth City Council  EWHC 1568.
However, if the defendant did not cause the nuisance (for example where it is a natural hazard or the use of the land by a third-party), they will only be liable for it if they are the lawful occupier of the land and continue or adopt the nuisance: Sedleigh-Denfield v O’Callaghan  AC 880; Goldman v Hargrave  1 AC 645.
Continuing the nuisance: failing to get rid of a nuisance which the defendant knows (or ought to have known) exists on the land and that it causes a nuisance.
Adopting the nuisance: using the thing which causes the nuisance instead of getting rid of it, where the defendant knew or ought to have known he was using it and that it caused a nuisance.
Is the Interference Unreasonable User?
The test for whether an interference is unreasonable or not is whether an ordinary neighbour should reasonably be expected to tolerate the defendant’s use of the land, bearing in mind the usual give-and-take of neighbourly relations: Barr v Biffa Waste Services  QB 455.
‘Reasonable’ refers to ordinary or acceptable interference. The test is not whether the defendant behaved ‘reasonably’ in the sense meant in negligence: Fearn v Board of Trustees of the Tate Gallery  UKSC 4
Factors indicating the interference is reasonable include:
The nuisance is a one-off or rare event: Crown River Cruises Ltd v Kimbolton Fireworks Ltd  CLC 1214.
The interference is short in duration: Barr v Biffa Waste Services  QB 455.
The interference takes place at reasonable times of the day.
The interference is not particularly intense: Kennaway v Thompson  QB 88.
The nature of the locality makes the activity normal: Sturges v Bridgman (1879) 11 Ch D 852. This factor is not relevant in property damage cases: St Helen’s Smelting v Tipping (1865) 11 HL Cas 642.
Where the nuisance is caused by a natural occurrence, the high cost of removing the nuisance and the defendant’s resources: Leakey v National Trust  QB 485.
Factors indicating the use is unreasonable include:
The nuisance is a repeated event or arises out of an ongoing state of affairs: Spicer v Smee  1 All ER 489.
The duration of the interference is long.
The interference takes place at unreasonable times of the day (or night): Polsue & Alfieri Ltd v Rushmer  AC 121.
The interference is intense.
The nature of the locality makes the interference unusual or unexpected: Sturges v Bridgman (1879) 11 Ch D 852.
The defendant is acting maliciously: Christie v Davey  1 Ch 316.
The fact that the claimant ‘came to the nuisance’ (i.e. that they were aware of the defendant’s activities before they moved in) is not relevant: Miller v Jackson  3 WLR 20. It is also not relevant that the defendant’s activities are in the public interest, though this may affect the remedy granted: Fearn v Board of Trustees of the Tate Gallery  UKSC 4.
Planning permission is relevant if it shows that the nature of the locality is changing or has changed, but does not make a nuisance reasonable by itself: Gillingham BC v Medway (Chatham Docks)  QB 343.
Planning permission is unlikely to change or indicate the character of the locality unless it cannot be implemented without causing a nuisance or the permission specifically permits the nuisance: Lawrence v Fen Tigers Ltd  AC 822. As such, in most nuisance cases planning permission is irrelevant.
Sensitivity of the Claimant’s Use
If the only reason the defendant’s use is considered an interference is because it is damaging to some special, sensitive activity the claimant is engaged in, this is not an actionable nuisance (even if it causes property damage): Robinson v Kilvert (1889) 41 Ch D 88. This is because the nuisance must interfere with the land, not just the claimant.
However, if the interference would be considered unreasonable by a person making normal use of the claimant’s land, it does not matter than the particular claimant’s use was sensitive: McKinnon Industries v Walker  WN 401. Additionally, the fact that the land itself (and the buildings and fixtures on it) is especially sensitive is not relevant: Fearn v Board of Trustees of the Tate Gallery  UKSC 4
What Makes a Nuisance Public?
A nuisance is public if it:
- ‘Materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects’; or
- Obstructs the public from exercising their general, common rights; or
- If it is ‘so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to stop it’: Attorney-General v PYA Quarries Ltd  2 QB 169.
There is no need to show every member of the class has been affected, just a representative cross-section. The relevant class of the public can be relatively small, such as in East Dorset DC v Eaglebeam  EWHC 2378 (QB) where a ‘substantial number of houses’ was enough.
Who Can Sue?
No everyone who suffers loss automatically has the right to sue in public nuisance. The following have the right to claim:
- The Attorney General; and
- Private individuals who have suffered a direct, particular and substantial loss which goes above and beyond the losses suffered generally by other members of the relevant class: Colour Quest v Total Downstream  EWHC 540 (Comm).
Since there is no need for the nuisance to affect private land, the claimant does not need to have any private property rights: Colour Quest v Total Downstream  EWHC 540 (Comm).
The Meaning of Reasonable
Whether the ‘reasonable’ comfort of the public has been affected is determined by using the same test used in private nuisance.
Remedies for Public and Private Nuisance
An injunction will normally automatically be awarded to stop an ongoing nuisance and prevent future nuisances: Lawrence v Fen Tigers Ltd  AC 822.
However, damages in lieu of an injunction may be granted if the following conditions exist: Shelfer v City of London Electric Lighting Company  1 Ch 287.
- The injury to the claimant is small;
- The injury to the claimant is capable of economic valuation;
- The claimant’s injury could be adequately compensated by a small compensation payment; and
- In the circumstances of the case it would be oppressive to the defendant to grant an injunction.
This is a ‘working rule’ rather than strict criteria, and should not be applied mechanistically: Lawrence v Fen Tigers Ltd  AC 822. Particular focus is place by the courts on whether the injunction is oppressive to the defendant: Jaggard v Sawyer  1 WLR 269.
An injunction might also be denied if the defendant’s activities are in the public interest: Miller v Jackson  3 WLR 20. Planning permission may be evidence of public interest, though not always: Lawrence v Fen Tigers Ltd  AC 822. If an injunction can be granted which limits but does not completely end the defendant’s activities, the public interest is a less weighty concern: Kennaway v Thompson  QB 8.
Property damage is generally recoverable in nuisance. Loss of amenity (e.g. noise or smells) is only recoverable in private nuisance if it causes harm to the land. This means that the nuisance must either physically damage the land or lower its economic value: Hunter v Canary Wharf  AC 855. Personal injury is not normally recoverable in private nuisance since it does not affect the land.
Since public nuisance does not require the claimant to have a land interest, all forms of damage are recoverable, including personal injury: Corby Group Litigation v Corby Borough Council  EWCA Civ 463.