Private Nuisance

Private Nuisance

A private nuisance is an act affecting some particular individual or individuals as distinguished from the public at large.

 

What are the essentials to prove Private Nuisance?

  • The claimant must have an interest in the land.
  • There must be an unreasonable or unlawful use of the land by the defendant which is the source of the nuisance.
  • Such unreasonable or unlawful use must result in annoyance or discomfort or inconvenience to the claimant which the law considers as substantial or material.
  • The claimant must suffer some harm/damage.

 

Who can be the claimants?

A claimant must have an interest in the land affected by the nuisance in order to make a claim of private nuisance. In effect, an ‘interest in land’ means a person must own or have a right over the land. Owners, leaseholders or tenants have an interest in the land and can make a claim of private nuisance.

This is reflected in the rule that the claimant in an action for private nuisance has to have an interest in the land or exclusive possession of the land which is affected in order to be able to sue. In effect, a person who is in exclusive possession of the land is regarded as having an interest in the land.

In Foster v Warblington UDC (1906), A was an oyster merchant who for many years had been in occupation of oyster beds artificially constructed on the foreshore. He excluded everybody from the oyster beds, and nobody interfered with his occupation of the oyster beds or his removal and sale of oysters from them. However, he could not prove ownership of the oyster beds.

 

Held: A could bring an action in private nuisance caused by the discharge of sewage by the defendants into the oyster beds. The claimant was able to bring a claim of a private nuisance because he was in exclusive possession of the land even though he could not prove his title to it.

 

Just householders with a privilege to land could initiate an action in private nuisance, not their relatives.

 

Occupation of the property as a house isn’t adequate. An action might be brought by the proprietor or by the inhabitant or by an individual who enjoyed exclusive possession but lacked any proprietary interest. No action can be brought by a licensee. On the off chance that the harm in issue is physical harm to property, at that point, the individual with the privilege to sue should be the individual with the commitment to fix or have the burden of fixing the property. A licensee will seldom be in this position.

 

Who are the defendants in Private Nuisance?

The defendants involved in a Private Nuisance are complex and will be divided into 3 categories:

 

CREATORS: Can always be sued even after vacating the land from where Nuisance originates

OCCUPIERS: Liable for nuisance created by them and servants (vicarious liability) but not for independent contractors

LANDLORDS: Will not be liable as they have parted with control of the land. There are a number of exceptions to this principle.

 

The creator should have been able to foresee the damages when the alleged nuisance had taken place.

Earlier, nuisance created by trespassers and acts of nature were not the responsibility of the occupier. This was mainly due to the view that ownership consists of more rights rather than duties. However, recently the view has been changing and landlords are held liable for dangers emanating from their premises.

In case a trespasser is causing nuisance but the occupier is aware of it and has failed to take any action to prevent it or abate it, then the occupier is liable. The standard of reasonableness is a subjective one. However, the duty is limited by the occupier’s ability (physical and financial) to abate the nuisance and by its foreseeable extent (Sedleigh-Denfield v O’Callaghan [1940] AC 880).

A landlord will be held liable in case the nuisance had taken place at the time of letting and that the landlord knew or ought to have known about it. In the case of authorisation of the nuisance by the landlord, the landlord will be held liable.

In Harris v James (1876) 45 LJQB 545, A field was let by A to B for. B to work it as a lime quarry and to set up lime kilns. The plaintiff complained of smoke from the kilns and nuisance caused by blasting in the quarrying. B was liable as occupier and A for authorising the commission of a nuisance.

 

What are the Remedies for Nuisance?

 

The remedies are given in the form of:

 

  • Damages

In public nuisance actions, the claimant must demonstrate exceptional injury so as to prevail with regards to getting compensation. Harms in tort are for the most part granted to reestablish the offended party to the position the person in question was in, had the tort not happened. In law, damages are an award, typically of cash, to be paid to an individual as compensation for loss or injury.

 

  • Injunctive relief

An injunction is a legal and an equitable remedy as to a special court order that forces a party to do or abstain from specific acts. Injunctions are not available as of right. The topic of when the court should practice its discretion to deny an injunction was considered in the accompanying case.

The respondent’s activities caused vibrations and commotions. The litigant asserted that the offended party ought to be restricted to damages as the award of an injunction would deny numerous Londoners of power. The court held that the discretion not to grant the injunction ought to be practised just in extraordinary conditions:

 

1) where the damage to the offended party’s lawful right is little; and

 

2) is fit for being evaluated in cash terms; and

 

3) is one which can be sufficiently remunerated by a little cash instalment; and

 

4) it is abusive to the litigant to concede an injunction.

 

A mix of the two harms and injunctive relief for isolated damages is affirmed.

 

  • Abatement

Abatement, in law, the intrusion of a legal proceeding upon the arguing by a litigant of an issue that keeps the offended party from going ahead with the suit around then or in that structure. The term abatement is likewise utilized in law to mean the evacuation or control of an inconvenience.

 

This incorporates the offended party himself/herself finding a way to stop the nuisance, for instance, by cutting overhanging branches entering from the litigant’s premises. The abator needs to issue not direct, generally the abator himself/herself will turn into a trespasser. This type of remedy isn’t prudent much of the time

 

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