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NUISANCE - Coggle Diagram
NUISANCE
Not every interference will amount to a nuisance – the interference must be substantial and continuing (not a one off).
The courts will determine this by looking at a series of factors and “balancing the interests of both parties''.
Factors considered: Duration and frequency of interference Location - (Sturges v Bridgman
Malice/intention - Christie v Davey
Sensitivity - Robinson v Kilvert
Social utility - Miller v Jackson; Dennis v MOD
Remedies
Injunction - This is the primary remedy to restrain a nuisance (Wheeler v Saunders - removal of pig unit). It can be used to prevent or restrict a nuisance (Watson v Croft - 40 days per year).
Damages in lieu of an injunction (in place of an injunction) but will only do so if satisfied that damages would be an adequate remedy and that an injunction would be oppressive (Shelfer v City of London Electric - the Shelfer test).
Abatement - this is a self help remedy not one granted by the courts e.g. cutting roots or branches on a tree.
Nuisance is the unlawful interference with a person's use or enjoyment of land or indirect damage to property.
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Defences
Statutory authority – Act of Parliament authorising the activity - Allen v Gulf Oil (where an Act of Parliament had authorised the building of the oil refinery).
Prescription / prescriptive right – where the activity has been carried out for a period of 20 years or more without objection the defendant can claim prescriptive right to carry on the activity. This period only begins where the claimant becomes aware of the nuisance (Sturges v Bridgman).
Who can sue?
Only persons with an interest in the land (Malone v Laskey). The claimant must have a possession or a legal interest in the property e.g. the owner or a tenant but not any member of the family without any legal interest in the property (Hunter v Canary Wharf).
Who can be sued?
anyone who creates, adopts or continues nuisance - this includes those persons who do not have a legal interest or right over the land from which the nuisance emanates (e.g. builders of contractors).
includes claims for physical damage indirectly caused e.g. by toxic fumes or acid smuts, vibrations, water or even a landslide (Leakey v National Trust). Any damage caused must be REASONABLY FORSEEABLE– (Cambridge Water v Eastern Counties Leather).