neighbour not to be interfered with”.
Reasonableness in nuisance is different to the reasonableness in
negligence. In negligence the unreasonableness of the defendant is the central
issue. However, in nuisance the central issue is whether the degree of
interference with the plaintiff’s property rights is sufficiently great to call for legal
intervention.
In considering whether the interference is unreasonable the courts will
take in to account various factors, including the nature of the locality in which the
activity is carried on, the sensitivity of the plaintiff and the motive and malice of
the defendant. With regard to the problems being experienced by is
( mention which is/are the most relevant explain each, give case
examples and apply)
The unreasonableness will only constitute a nuisance if it is ongoing.
Seemingly one off incidents have occasionally been held to constitute a
nuisance. The courts finding that the proceeding state of the defendants land
constituted the nuisance (case). Here, however, there is clearly an on going state
of affairs because...(explain or state if it is not an ongoing state of affairs).
The next issue to consider is whether falls into the category of
persons who can sue in private nuisance. Case law has established that
anybody with an interest in the land may sue (explain Malone and Laskey). The
principle established in Malone v Laskey was upset in 1993 in Khorasandjian v
Bush when the Court of Appeal seemed to abolish it, but it was reaffirmed by the
House of Lords in Hunter v Canary Wharf (1997) (apply to question).
It would appear that falls/does not fall within the category of
persons who can be sued. Anyone who causes a nuisance is strictly liable for it’s
creation and continuance. If the nuisance emanates from land the occupier is
primarily liable, and the owner would be liable only if he was the person who
created or authorised the nuisance. An occupier is responsible for nuisances
created by his employees, agents, family, guests and independent
contractors.(apply to question). It is possible that may have a
defence available, potentially available defences include statutory authority,
prescription, assumption of risk, contributory negligence, that no right is being
interfered with, concealed hidden unobservable defects in property and acts of a
third party. It would appear that could be possible
defences here (case, apply).
A defendant will be unable to defend themselves by claiming their actions
are for public benefit, that the plaintiff came to the nuisance or that he used all the
possible care and skill or made reasonable use of their property.
The possible remedies available to should the action be
successful are damages, injunction and abatement (briefly explain each). It
would appear that the remedy of would be most appropriate here
(explain why). It is possible that in respect to the.... (facts of the question) there
is a public nuisance. As quoted by Rogers” The essence of a public nuisance is
that it is something which affects the comfort and convenience of the public as a
whole rather than of an individual complainant”. The plaintiff in a public nuisance
action is required to show special damage (case example, apply). In order for it
to constitute a public nuisance it must also be shown that the nuisance affects a
class of people, although it does depend on the circumstances. For example, a
sparsely populated town will still make up the majority and will, therefore, amount
to a class of people (case, apply).