Private Nuisance

A valid claimant is someone who has a proprietary interest in the land that is affected by the nuisance.

A valid defendant is typically someone who either: 1. Created or caused the nuisance (positive act), or 2. Is responsible for the land from which the nuisance originates, and: i) Knows or ought reasonably have known of the nuisance ii) Fails to take reasonable steps to prevent or mitigate the nuisance.

The owner of the land can be sued even if the nuisance is naturally occurring, so long as they satisfy the two criteria (i & ii).

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1. Interference with Use or Enjoyment of Land

This interference can take two forms: • Physical damage to the claimant’s property (such as flooding, structural damage, or pollution). • Interference with comfort and convenience (such as noise, smells, smoke, or vibrations).

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2. Was the Interference Substantial/Unreasonable According to the Reasonable Person?

1. Duration Interference that is continuous or long-term is more likely to be considered unreasonable than a one-time event.

2. Extent If it seriously impacts the claimant’s use and enjoyment of their land

3. Time of Day Activities that are reasonable at certain times may become unreasonable if they occur when people expect peace and quiet, such as late at night or early in the morning.

4. Duty C has no duty to mitigate the nuisance.

5. Sensitivity A defendant is not liable for nuisance if the interference only affects a person who is abnormally sensitive.

6. Social utility Social utility is immaterial in determining whether interference was unreasonable, but is relevant in deciding the remedy

7. Malice Malicious interference is inherently unreasonable

8. Temporary Temporary interference can constitute a private nuisance if the interference is sufficiently severe.

9. Location What might be acceptable in one environment could be unreasonable in another (e.g., industrial activities in a residential area). The one exception to this is if there is property damage – in this case, this factor is immaterial.

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3. Reasonable Foreseeability

The remoteness test (Wagon Mound) must be satisfied here: was the damage reasonably foreseeable to someone in D’s position at the time the relevant acts were done?

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DEFENCES

1. Prescription If D can prove that he has been continuing the nuisance for a period of 20 years against the claimant without any objection. However, the 20 years must begin from when the activity first becomes a nuisance, not just from when the activity began.

2. Statutory authority Where a statute or legislation explicitly or implicitly authorizes the defendant’s activities AND the nuisance arises as a necessary/inevitable consequence of activities that are authorized by statute

It is not a defence for the defendant to argue that the claimant “came to the nuisance".

The mere grant of planning permission (usually done by a local authority) is NOT a defence.