Consider the Rights and Remedies

 Consider the rights and remedies, if any, of: Robert against Numar in connection with the noise and the smells , Numar against Robert in connection with the destruction of the plants and the motorists against Tom in connection with the obstruction.

In relation to Robert against Numar this is a private nuisance. Winfield defines private nuisance as ‘unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.’ A claimant can only bring a court action if they have an interest in the land affected, in this case it is Robert who owns the house next to the shop. This point was demonstrated in Khorasandjian v Bush as the plaintiff was living with her parents so therefore had no interest in the land. For the court action to succeed the defendant must commit a private nuisance in one of two ways- interference with use or enjoyment of land or interference with rights over land, in Robert’s case it is the enjoyment of land.

To prove a nuisance of this type the claimant must show three things: that the damage suffered was foreseeable, and where there is loss of amenity, that the interference was unreasonable and substantial.

In nuisance it is the interference that the claimant suffers which must be unreasonable. As Lord Millet said in Southwark London v Mills ‘what is reasonable from the point of view of one party may be completely unreasonable from the point of view of the other… A landowner must show the same consideration for his neighbour, as he would expect his neighbour to show for him. In deciding the issue of unreasonableness the courts aim to maintain a balance between the defendant’s interests and rights to use his land and the claimant’s interests. In order to balance the interests of both parties in a case involving loss of amenity the courts have a number of factors that they weigh up. These are locality, time, method, duration, danger and defendant’s purpose.

First is locality, locality is important as in the words of Thesiger LJ in Sturges v Bridgman he said ‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.’ The case of Hirose Electrical v Peak ingredients demonstrated this point, the employees of an electrical works were discomforted by the smell of curry and garlic emanating from an adjoining food manufacturer. This is similar to the case of Jordan and Numar, however the locality here is ‘in a quiet village’, this is more likely to be unreasonable sue to the quiet location of the business.

Next is time, this is not relevant to the case od Robert and Numar as the business was not open at unreasonable hours so the nuisance was not occurring due to the issue of time.

The third factor is whether or not the defendant could have achieved his purpose by adopting some other means or method which could have avoided causing the interference. This is relevant to Robert as when he complained Numar did no try and change his ways but instead worsened them by making his hours longer, this is malice which will be discussed later on. However this also illustrates that instead of adopting some other means to avoid the interference he simply made them worse. However this demonstrates the point that it is not. Such as in Leeman v Montague it is likely that Numar will be found by the court that he could’ve prevented the ‘considerable noise or very strong smells.’ In Leeman the cocks crowing were the nuisance and it was found that feeding them at different times could prevent the nocturnal crowing.

Subsequently is the duration, the longer something continues the more likely that it will be unreasonable and a nuisance. For Robert the duration is daily during opening hours, showing it not to be a one off occurrence. This shows the duration is shown as the nuisance is a continuous state of affairs.

The next element is danger; this is not relevant to Robert’s case as Numar is not putting Robert or anyone else in danger.

The last factor is determining whether a defendant’s activity causes such loss of amenity that it amount to nuisance at law: the defendant’s purpose or intention. The case of Christie v Davey shows an example of malice. The malice was shown when the defendant prevented music lessons being taken by shrieking and screaming deliberately, this resulted in an injunction being obtained by the plaintiff. This is shown with Robert and Numar when Robert complained and ‘Numar increased his opening hours; the purpose here was specifically annoy Robert and therefore amounts to a nuisance.

One important factor is that of abnormal sensitivity, if the only reason a claimant suffers unreasonable interference is because he is abnormally sensitive then he cannot recover. An example of this is Robinson v Kilvert in which the defendant’s belongings were damaged due to their abnormal sensitivity, if they were not they then would not have been damaged. For Robert it is very likely that many people would find this a nuisance and ruin the enjoyment of their land so therefore the issue of abnormal sensitivity does not apply here.

Overall it is very likely that Numar will be found guilty of nuisance with the main elements of location, malice and duration being present.

However Numar may try and use the defence of ‘coming to a nuisance’. However it says that if a defendant has not acquired the prescriptive right, it is no defence to claim that the claimant knowingly came to where a nuisance already existed. For example on Bliss v Hall in which the defendant set up a business which emitted smells to the discomfort of the plaintiff who took a house near it. In relation to Robert and Numar this is not a defence as ‘it is no defence to claim that the claimant knowingly came to where a nuisance already existed’ therefore this defence would not succeed.

There is also the issue of a possible ‘public benefit’ in supplying the takeaway food to its customers in the area. A case demonstrating this point is Adams v Ursell in which a fried-fish shop was a nuisance in the residential part of a street. An injunction would not cause hardship to the D and to the poor people who were his customers. This is also a likely problem to find in the case of Robert and Numar, it is likely that an injunction not be placed restricting the activity. However instead Robert may be awarded damages to cover the nuisance.

In relation to the destruction of Numar’s plants Robert may be liable under the rule in Rylands and Fletcher. This is the law of strict liability in which the defendant may be liable even if they were not negligent.

The rule as defined by Blackburn in Rylands is as follows ‘a person who has brought a thing onto his land which is dangerous, and which is a non natural use of the land will be strictly liable for the consequences of its escape.’ The escape is defined by Viscount Simon in Read as ‘escape from a place where the defendant has occupation or control over land to a place which is outside his occupation or control.’ In Ponting v Noakes it was found that the plaintiff’s horse reached over the boundary nibbled on some poisonous leaves, this was not an escape as the horse itself intruded on the defendant’s land. Escape is not an issue for Robert and Numar as it is clear that the oil did escape and destroy the plants.