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The first type of nuisance is private nuisance which is an unlawful and unreasonable indirect
interference with a person's use or enjoyment of land and for this the basic principle is `live and let
live'. In order to live together in society there must be give and take and this principle is shown in the
case of SOUTHWARK LBC v MILLS AND OTHERS where the noise was not unreasonable as it was
normal household noise. However if the interference goes beyond what is generally acceptable then
it may be considered unreasonable and so an action may be possible.
MALONE v LASKEY held you needed proprietary rights in order to sue but this requirement was
relaxed in KHORASANDJIAN v BUSH but this was overruled by HUNTER v CANARY WHARF so
proprietary rights are needed to sue distinguishing this from nuisance.
A variety of people can be sued such as the creator of the nuisance, anyone who authorises a
nuisance, the creator of a state of affairs, the occupier and a landlord all being examples.
The interference with the land must be indirect and substantial or more than `merely trifling' as said in
ST HELEN'S SMELTING v TIPPING. This case also differentiated between physical damage where
locality is irrelevant and intangible damage where locality is relevant. Some example of physical
damage include flooding (SEDLEIGH-DENFIELD v 0'CALLAGHAN), tree roots (DAVEY v HARROW
CORPORATION) and landslides (LEAKEY v NATIONAL TRUST). Some examples of intangible damage
are noise and loss of sleep (ANDREAE v SELFRIDGE), smell (ADAMS v URSELL), an offensive sight such
as a sex shop (LAWS v FLORINPLACE) and persistent phone calls (KHORASANDJIAN v BUSH). It was
held in HUNTER v CANARY WHARF that TV is not a servitude and so there is no right to it.
The test for unreasonableness is a question of fact in circumstances of each case and is viewed from
C's position is C being asked to tolerate something a reasonable person would not endure? As such it
can be strict liability as D could take all reasonable care but still be liable. There are several factors
used to consider the unreasonableness.
The first factor is malice. If D intends to annoy C out of spite they can an unactionable nuisance
actionable (CHRISTIE v DAVEY) and make a lawful act unlawful (HOLLYWOOOD SILVER FOX FARM v
Another factor is character of the neighbourhood. Locality is only relevant to intangible damage (ST
HELEN'S SMELTING) "What would be nuisance in Belgravia Square not necessarily in Bermondsey"
(STURGES v BRIDGMAN) and in a residential area it is reasonable to put up with household noise
Abnormal sensitivity is when if the damage caused where the claimant's damaged property is
particularly sensitive to damage by the defendant's actions. In ROBINSON v KILVERT it was established
that if the action of the defendant would not have caused damage were it not for this abnormal
sensitivity, the defendant is not liable. However if the damage was caused to abnormally sensitive
property but would also have damaged non-sensitive property, the defendant is liable, as in
MCKINNON INDUSTRIES v WALKER.
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The effect of D's conduct is also taken into account. The interference in private nuisance is usually
repetitive and continuous (HUNTER) however a one off incident has been considered enough in
CROWN RIVER CRUISES v KIMBOLTON FIREWORKS. An isolated incident can evidence a dangerous
state of affairs and thus can constitute a nuisance (SPICER V SMEE).
Failure to remedy can also be a factor considered for unreasonableness.…read more