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Defences and Remedies against Private Nuisance - Coggle Diagram
Defences and Remedies against Private Nuisance
Defences
Inapplicable Defences
Character of a Neighbourhood:
The character of a neighbourhood matters in determining whether or not an action constitutes a nuisance
As long as the noise affects the use and enjoyment of the land it will be considered a nuisance
"Coming to the nuisance"
Sturges v Bridgeman (1879):
Facts: C moved next door to confectioner D who produced sweets for sale in his kitchen for years. the doctor built a small shed for the purpose of private nuisance on the boundary of the 2 properties. But the
loud noises from the confectioner's industrial mortars and pestles can be heard, disrupting the use and enjoyment of his land and sought for an injunction
. Injunction given by the lower court and Bridgeman appealed.
Issue: Does it matter that the noise was there for an extended period but did not cause a nuisance until recently? D argued that C came to the nuisance because he was carrying out his business for over 20 years
Held: Its not a defence to say
I was here first and C came to the nuisance
Court held that if the neighbourhood is known to be industrial, decision could be different. Here, a reasonable person will find this type of activity a nuisance in such a neighbourhood.
Public benefit
Miller v Jackson (1977):
Facts: A cricket ground had been used for more than 70 years. When a new housing estate was built, cricket balls regularly came into C's garden hence using the garden during a match was dangerous. C alleged nuisance and negligence
Held per Lord Denning: Injunction was refused although damages rewarded. C should have known that cricket season was booming when buying the property. Whether the use of the cricket ground can be regarded as
unreasonable use of land
rejecting the approach in Sturges, the case must be viewed
"on principles applicable to modern conditions".
There's a conflict with public interest.
Kennaway v Thompson (1981):
Facts: Water sport creating nuisance to give rise to a claim of private nuisance. The council restricted sporting events. Courts need to balance the interest between C and D. So reasonable schedules were given to balance both interest of parties
Prescription
To establish the defence, D must show that the activity has been conducted without complaint from his neighbour for 20 years.
Sturges v Bridgeman (1879):
D argued that the physician came to the nuisance and he had already been carrying out the confectionary business for the previous 20 years
Held: 20 years starts to run only when C comes on the land and not from the time the activity started
Statutory Authority
If a statute confers power to D to conduct a particular activity, D will usually escape liability notwithstanding that the activity gives rise to an interference.
Allen v Gulf Oil Refining:
Facts: Due to a huge demand for crude oil, D obtained a private Act of Parliament to build a refinery. The Act stipulates the building and construction and subsidiary works but no express Authority for the use and operation of the refinery once it had been built. C sued for nuisance.
Held: Gulf Oil pursuant to the Act not only authorised to operate the refinery but also its operation and use. Hence it is thereby granted immunity from any "non-negligent" interference.
Human Rights Act 1998:
s3 provides that "so far as it's possible to do so, primary legislation and subordinate legislation must be read and given effect in a way that is compatible with the Convention rights", and where it is not possible, the courts must (under s4) declare the legislation incompatible with the Convention.
Malaysian law
Confers powers to D to conduct a specific activity. D will usually escape liability notwithstanding that the activity gives rise to an interference. D however must prove that the interference was unavoidable despite precautionary measures being taken.
Local Government Act 1976:
"...that the local authority has the power to make new public places and enlarge such public spaces and the owners and occupiers of any land, houses or buildings which are required for such purpose which are injuriously affected will be compensated in accordance with the provisions of any written law..."
Goh Chat Ngee & Ors v Toh Yan & Anor (1991):
Facts: D's mining activities constituted a unnatural use of land, as water had escaped and flooded C's land causing it to collapsed and sink, subsequently causing flooding, erosion and settlement.
Held: Court held that a landowner had a Common law obligation not to interfere with the support structure of the nieghbour's land, which is stated in s44 (1)(b) National Land Code. D breached this statutory duty and is also liable in nuisance with the use and enjoyment of his neighbour's land.
Hypersensitive activities
Where the activity may not cause harm to the vast majority but only to a particular person with a "delicate" condition
Bridlington Relay v Yorkshire Electricity Board (1965):
Facts: Case concerned electrical interference with TV signals caused by the activities of D (Electricity Board)
Held: Such interference did not constitute a legal nuisance, as it was interference with a purely recreational facility as opposed to interference with the health or physical well-being of C.
Robinson v Kilvert:
Facts: C occupied the ground floor of D's premise using it to store brown paper. D carried on in the basement making paper boxes, needing a hot, dry environment. Heat from D affected C's paper and reducing its value. C sued for nuisance.
Held: Court found the paper to be exceptionally delicate. The damage and heat did not inconvenienced any of C's workers = no nuisance.
Remedies
Damages
Usually claimed in circumstances of damage to property or dimunition in market value
Marquis of Granby v Bakewell UDC (1923)
C can recover the monetary value of the damage to his property which is the
difference of the value of property before and after
the damage
Economic Loss - Recoverable
SCM (UK) Ltd v WJ Whitehall & Sons Ltd (1970):
C's factory affected by cut in electricity supply-physical damage recoverable.
Claims for
foreseeable
damages only
The Wagon Mound (No.2) (1967)
Injunctions
An order form the Court directing D to desist from the future commission of the tortious act
It is a discretionary remedy and the courts have in the past been influenced by 2 factors:
Gravity of the interference:
Cooke v Forbes: interference must be substantial
Public Interest:
Wheeler v Saunders (1995):
Public interest must be allowed to prevail
Gillingham v Medway Docks
Damages in lieu of Injunction
Courts have an
equitable discretion
to award damages in circumstances where C would normally be entitled to an injunction
Shelfer v City of London Electric Lighting Co (1895):
Damages in substitution for an injunction may be given if
Injury to C's legal right is small
The injury is one which is capable of being estimated in money
The injury can be adequately compensated by a small money payment
It will be oppressive to D to grant a injunction
Jaggard v Sawyer (1995) CA:
Approved application of "Shelfer" test
D had acted in good faith and openly
C had delayed in applying relief
Granting injunction will be oppressive to D
Miller v Jackson
Allen v Gulf Oil Refining (1977)
Kennaway v Thompson (1981)
Dennis v Ministry of Defence (2003)
Watson v Croft Promo-Sport Ltd (2008)
Abatement of Nuisance (Self Help)
A "remedy" where C is entitled to take matters into their won hands and abate the nuisance without going to Court
But the courts do not favour such an approach
Lemmon v Web (1895)
Lagan navigation v Lamberg Bleaching Co (1927)