1990 (noise, smoke, fumes) (see further below) and the
Water Resources Act 1991 (water pollution).
Private nuisanceconsists of unreasonable interference
with a person’s use or enjoyment of land. The following
requirements must be present to establish liability for a
private nuisance:
■an indirect interference with the use or enjoyment of
land, e.g. by smoke, smells, noise;
■either physical damage to land or interference with
the land causing loss of enjoyment or discomfort; and
■interference which is unreasonable.
In order to determine the question of unreasonable-
ness, the court will consider both the conduct of the
defendant and the effect of that conduct on the claim-
ant. Factors which may be considered include:
■The character of the locality in which the interference
occurs.In the words of Thesinger LJ in Sturgesv
Bridgman(1879): ‘What would be a nuisance in
Belgrave Square would not necessarily be so in
Bermondsey.’
■The duration of the interference.A single occurrence
will not normally amount to a nuisance; a certain
degree of continuity is required. However, if the
interference is of only a short duration, it is less likely
to constitute a nuisance.
■Malice on the part of the defendant.Although malice
is not an essential ingredient of nuisance, it may be
relevant to ascertaining whether the defendant’s
conduct was reasonable.
A person who is in occupation of land may sue in
nuisance the creator of the nuisance, the occupier of
the land from which the nuisance came or, in limited
circumstances, the landlord of the person in occupation.
The following defences are available to the defendant:
■consent to the nuisance, but consent will not be im-
plied because the claimant came to the nuisance;
■prescription, e.g. carrying out the acts complained of
for 20 years;
■statutory authority.
A successful claimant is entitled to compensation for
damage caused by the nuisance, e.g. physical damage to
land or loss in value of the property. It is also usual for
a claimant to seek an injunction to prevent any con-
tinuance of the nuisance. The following case provides an
illustration of how the law of nuisance tries to reconcile
conflicting interests over the use of land.
Bringing a civil action in the tort of nuisance is a cum-
bersome and very expensive way of protecting people’s
enjoyment of their property from pollutants such as
noise. The law of statutory nuisance contained in legis-
lation such as the Environmental Protection Act 1990,
the Noise and Statutory Nuisance Act 1993, the Noise
Act 1996, the Anti-Social Behaviour Act 2003 and the
Clean Neighbourhoods and Environment Act 2005 pro-
vides an alternative avenue for redress in respect of
activities which are either prejudicial to health or a nuis-
ance, e.g. smoke, fumes, dust, smells and noise. Local
authority environmental health officers have the power
to serve abatement notices requiring the person res-
ponsible for a statutory nuisance to abate, prohibit or
restrict its occurrence or recurrence. Failure to comply
with such a notice is a criminal offence and could lead to
a fine, in the case of an offence on industrial, trade or
business premises, not exceeding £20,000. It should be
noted that the Environmental Protection Act 1990 also
enables a private individual who is aggrieved by a stat-
utory nuisance to initiate proceedings in a magistrates’
court to obtain a court order to abate the nuisance.Rule in Rylandsv Fletcher
The rule in Rylandsv Fletcheris an example of a tort of
strict liability. The rule derives from the case of Rylands
v Fletcher, which was decided by the House of Lords in
1868.Part 3Business transactions
348
Kennawayv Thompson(1980)In 1972 the claimant had a house built on land next to a
lake which she knew was used for power-boat racing
and waterskiing. Not long after the claimant moved into
her house, the club became an international centre for
power-boat racing and, as a result, there was an increase
in the number of days on which racing took place and
larger and much noisier boats took part. The claimant
sought damages for the nuisance and an injunction. The
trial judge found that the interference with the claimant’s
enjoyment of her land had gone beyond what was rea-
sonable and awarded damages. However, he refused to
grant an injunction on the ground that it was in the pub-
lic interest to allow the club to continue to provide sports
facilities. The Court of Appeal allowed the claimant’s
appeal against the refusal to grant an injunction. An
injunction was granted restricting the number of occa-
sions on which the club could hold noisy power-boat
race meetings.