untitled

Private nuisance 249

In order to succeed in an action for nuisance the claimant must prove that the nuisance
has caused some damage. This damage might either be to the land itself or to the use and
enjoyment of the land. The damage need not be physical and might include loss of sleep or
inability to sit in the garden. However, a claim of damage to property is much more likely to
be successful than a claim of interference with leisure. In Hunter vCanary Wharf Ltd (1997)
the House of Lords held that clouds of dust raised when Canary Wharf was being built
could be nuisance if they reduced the value of neighbouring properties but could not be
nuisance if they merely interfered with television reception. However, the court was not
prepared to hold that interference with television reception could never be nuisance.

Remedies

Damages

In Cambridge Water Co Ltd vEastern Counties Leather plc the House of Lords held that
a defendant would not be liable in nuisance unless the damage suffered was a type of dam-
age which the defendant could reasonably foresee. (The Wagon Moundtest was applicable

• see p. 234.) However, as long as the type of damage was reasonably foreseeable even a
  defendant who had taken all reasonable care could be liable. So liability is strict but not
  absolute.
  Damages will be quantified using the same principles as for the quantification of dam-
  ages for negligence. (See p. 235.) If the land is damaged, the damages will generally be the
  amount by which the value of the land was reduced. If the use and enjoyment of land was
  interfered with the damages will generally be the amount by which the land had a reduced
  value while the interference was happening. Consequential losses, such as loss of business,
  or the cost of moving, are recoverable.

Mitigation

The defendant must take reasonable steps to mitigate any loss and so will not be able to
claim damages for losses which could have been mitigated by taking reasonable steps.

Injunction

An injunction is a court order requiring a person to behave in a certain way. In nuisance
cases the injunction will order the defendant to stop committing the nuisance. A defendant
who disobeys the court order will be liable to punishment for contempt of court.
The issuing of an injunction could cause a business to shut down. For example, if a busi-
ness needs to make excessive noise in order to manufacture its products, and an injunction
is issued forbidding the business to make the noise in the area where it currently operates,
the business will be compelled either to move or to stop manufacturing.
An injunction is generally the most sought-after remedy for private nuisance. Usually all
the claimant wants is that the defendant stops committing the nuisance.

Abatement

Abatement allows a claimant to remove the nuisance in an emergency or if this can be done
without entering onto the defendant’s land. InLemmon vWebb (1895), for example, the
Court of Appeal held that a land owner had the right to trim branches of mature trees which
hung over his land. In Burton vWinters (1993)the Court of Appeal held that abatement
was a right which could arise only if legal proceedings were inappropriate or if it was obvi-
ously necessary to take urgent action.