Sylvia runs a small market garden business from her home in the village of Merryfield,

where she keeps poultry and grows a range of vegetables, selling her produce at
farmers’ markets in the area. Angus lives in the cottage next door to Sylvia and is
frequently awakened early in the morning by the noise from her cockerel crowing. In
March each year, Sylvia receives a large order of manure, causing a horrible smell to
envelop the neighbourhood for several days. This year Angus has his brother Bill staying
with him. Bill suffers from an auto-immune disorder which is significantly worsened by
the smell, necessitating a brief stay in hospital. When Angus complains to Sylvia, she is
so angry that she deposits a heap of manure at the edge of her garden, almost next to
Angus’s driveway. Overnight, the wind blows some of this noxious substance onto his
driveway making it impassable.

Advise the parties.

Answer:

The question at hand is in relation to the law surrounding nuisance. The issue is whether the
affected parties are able to bring forth claims under this tort, in respect to the injuries that have
been suffered.

Nuisance is related to the quality of life and genreallygenerally involves an inconvenience rather
than physical harm. It does however include physical damage to property. A claim under
nuisance can fall under one of three categories as; statutory, public or private. Apart from this,
there is also the area of direct interference that is supported by the case of Rylands v Fletcher.

At first glance it is possible to derive that the above question includes possible claims under
public, private and Rylands v Fletcher. In providing an in depth analysis on which claim would
succeed and which would fail, each one would be dealt with seperately.

Private nuisance claim

Angus lives in the cottage next door to Sylvia and is frequently awakened early in the
morning by the noise from her cockerel crowing

The first claim to examine is in relation to the noise made by Sylvia’s cockerel crowing early in
the morning. The noise is said to frequently awaken Angus, who lives in a cottage next door to
Sylvia. As the facts provide no further information with regard to other individuals of Merryfield
being disturbed by this noise, this would most likley be a private nuisance claim. A tort of private
nuisance is one that attempts to balance the rights of a person to use their land as they want
with the claimants right to enjoy their land without interference from others; Sedleigh-Denfield v
O’Callaghan. Further, private nuisance has been defined as the substantial and unreasonsable
indirect interference with the claimant’s land or with his enjoyment of it.
Under private nuisance a vital factor that must be discussed isIn order for Angus to have a
successful claim against Silvia for a clim under private nuisance we would first have to establish
that Angus has a right to sue. who is able to sue and who can be sued. With the development of
the lawlaw, it is clear that only one with proprietary interest or exclusive possession in the
property would be capable of suing the defendant; Hunter v Canary Wharf Ltd. on the other
hand, (Relate this to the case). The fact of this case show us that Angus has proprietory interest
as he is living in the cottage next to Sylvia. As we have now established that Angus has the right
to sue the laws relating to nuisance requires us to establish if Sylvia can be sued for the
nuisance caused, tthere are 3 potential types of individuals that are able to be sued. These
entail; the creator of the nuisance, the authorizer of the nuisance and the adapter of the
nuisance. In this particular situationsituation, at hand, the noise is made by the cockerel.
Although this is the case, Sylvia would most likely be deemed to be the creator of the nuisance
as she is the owner of the cockerel and happens to have been the one to bring the cockerel into
her property. A reasonabsle argument to br brought forward is that the noise is made by the
cockerel and not directly through Sylvia and therefore this noise might be considered to be a
natural condition. However, as per the case of Goldman v Hargrave, an occupier who becomes
aware of the existence of a nuisance that arises out of a natural condition on theirri land is
required to take positive action to prevent it. Therefore, we can establish following the precedent
laid out in the cases above that Sylvia is infact the creater of the nuisance thus fulfilling the legal
requirement of a person who can be sued for under nisance. (Always relate the facts to the case
and give a conclusion)

Having established the above, the next point of discussion is in relation to the 3 elements that
make up private nuisance. The law has set out that in order for a claim to fall under private
nuisance, there must be an indirect intereferece with theeh use or enjoyment of the land, the
interference must be unreasonable and the interference must have caused damage. In
satisfying the first elemnet, the cockerel crowing was affecting Angus’s sleep, therefore it can be
considered to be an indirect interference with Angu’s enjoyment of land; Christie v Davey.

The second element is usually where the courts make a decision by weighing out the factors
that might make the intereferene either reasonable or unreasonable. The first factor in
consideration is that of locality. The focus of this is in relation to the area or locality rather that
the nuisance is said to have occurred. As this takes place in the village of Merryfield, it would
most likely be a residential area; Sturges v Bridgeman. In addition to that, any reasonable
individual would find it normal to have a home garden and farm in a village home; Hirose
Electrical. Taking that into consideration, in this instance the noise would not be considered as
unreasonable.

The second element that could be brought forward in the instant case is that of utility. As she
sells her produce to the farmers, this could be considered as an activity done in the interest of
the public and therefore the nuisance can be considered as reasonable;reasonable, Miller v
Jackson. (However this does not make a nusiance justifiable but merely cosiders this in
deciding if the nuisance is either reasonable or unreasonable. Moving on to the element of
duration, this element requires the nuisance to have occurred for over a period of time. Here as
the cockerel crows every morning, it can be considered to be unreasonable;unreasonable,
Harrison v Southwark. (Explain more) What is duration

Apart from that, it must be noted that the element of sensitivity and malice would not be
applicable in the situation as there is no evidence of abnormal sensitivity existing as well as no
indication of the plaintiff having acted out of spite. A possible argument to bring forward for this
particular area is in relation to Sylvia purposely putting the manure on the edge of the garden.
But, this argument would be more successful when brought under Rylands v Fletcher as a direct
interference as opposed to here. This would be re-visited when discussing about the rule of
Rylands further below.

As mentioned previously, the interference is also required to have caused damage. This usually
refers to discomfort or interference with the use of land but could also include actual physical
damage to the property or a reduction in the value of the land. As the cockerel is said to make
noise ever morning, Angus can argue that this noise interferes with his right to reasnoably enjoy
and use the land and through this, it could be considered as an interference with the use of
land; Hunter v Canary Wharf.

Moving closer towards the end of discussion for private nuisance, the final components that
must be stated are the relevant defenses and remedies that are applicable. The legislation has
set out 3 defenses for the area of private nuisance; prescription, statutory authority and the
unfroseeable act of a stranger. Prescription usually stated that if at all the nuisance has been
occurring for over 20 years, then this defense would be applicable and the defendnat would not
be held liable; Sturges v Bridgman. This would be unable to be relied upon by Sylvia as the
facts above do not provide us with sufficient enough information to show whether or not the
nuisance has been occurring for 20 years without any action having been taken. Likewise,
statutory authority, which is where permission and authority has been awarded to conduct an
activity which amounts to a nuisance through an act of parliament (Metropolitan Asylum District
v Hill) would also not be able to be relied on. Lastly, the as there is no act of stranger involved,
the defense of unforseeable act of a stranger would also nto be applicable as there is no
indication of a third party having caused the nuisance without the knowledge of the defendant
(Box v Jubb).

Although the law has provided us with a set of ineffective defenses, it is necessary to note that
these defensese would not in any way protect the defendant from liability. The only difference
that might be made is that the courts would consider certain factors when awarding the claimant
damages. There are 3 ineffective damages that are in existence; coming to a nuisance, social
utility and nuisance due to many. In this particular situation, the first and third would not be
applicable. Social utility might be the only facto that courts would take into consideration when
awarding damages to Angus as Sylvia was an individual who sold produce to local farmers and
this benefit the public.
Hence, Sylvia would be held liable.

In terms of the remedies, there are 3 possible varieties for courts to choose from. An injunction
to restrain a continuing nuisance might not be the chosen option. Instead, courts may decide on
damages rather than awarding an injunction; s50 Supreme Court Act 1981 and Shelfer v City of
London Electric Lighting Co. however, in order for damages to be awarded in lieu of an
injunction, the shelfer rules must be established. These entail that; the injury must be small,
must be one that is capable of being estimated in money and one that can adequately be
compensated by a small payment. In this particular situation, all 3 factors would most likely be
satisfied and hence damages are able to be awarded instead of the courts awarding an
injunction.

Abatement, which refers to a self-help remedy where the claimant takes steps to get ride of the
nuisance (Delware Mansions Ltd v Wetminister CC) would not be advisable as this is something
that should be done carefully. Furthermore, damages would be awarded in order to compensate
for the interferences with using ones land; Network Rail Infrastructure v Williams and Waistell.
So, for the interferences caused by Sylvia, Angus would be awarded damages.

Final Conslusion

Therefore, after analysing the facts above, it can be concluded that Angus has a potential claim
against Sylvia for private nuisance. If successful, his claim may result in a remedy such as
damages in lieu of an injunction, or alternatively, damages awarded to Angus,

Public nuisance claim

Sylvia receives a large order of manure, causing a horrible smell to envelop the
neighbourhood for several days. This year Angus has his brother Bill staying with him.
Bill suffers from an auto-immune disorder which is significantly worsened by the smell,

Bill is said to have gone to hospital due to the horrible smell from the manure which had been
received by Sylvia. The reason for this claim to fall under public nuisance and not private is due
to the fact that Bill does not have any proprietary interest as well as for the fact that private
nuisance does not cover personal injury. Although this is so, Bill is able to bring forth a claim
under public nuisance as the nuisance is said to have interfered with a group of people; AG v
PYA Quarries. In addition to that, Bill has suffered special damage as his auto immune disorder
is said to have worsened due to the horrible smell; Wandsworth LBC v Railtrack. As personal
injury is able to be claimed for under public nuisance, Bill’s claim would most likely succeed.
New Case 2009 - Corby Group Litigation v Corby BC [2009] EWCA Civ 1355 – Personal Injury
is avaiable under public nuisance

Rylands v Fletcher claim

The claim brought forward here is in relation to Angus. The rule established by the HOL in this
case is one of strict liability. This menas that the defendnat will be liable even if they are not
neglgient or at fault. In simple terms, the landowner is strictiyl liable if at all something escapes
from his land and causes harm to another land. Blackburn J explained that if someone brings
something dangerous onto their land and it escapes, they are responsible for any damage it
causes, even if they didn’t mean for it to happen.

With respect to a claim under this rule, anyone with a proprietary interest is ale to sue;
Cambridge Water. But to have a claim under Rylands, there are 4 elements that need to be
established. Firstly, the defendant must bring something onto his or her land for his or her own
purposes that does not naturally occur there. The defendant must recognzie that there was an
exceptionally high risk of danger or mischeif that coudl have come about from this if at all it
happened to have escaped from the defendant’s land; Giles v Walker. Applying this to the
instant case, the manure was brought onto the land by Sylvia and she would be aware that if at
all it escaped then it would cause damage. Secondly, the item must escape the land and cause
damage. In this instance, the manure had successfully escaped and caused harm by making
the driveway impassable; Read v Lyons & Co Ltd. third, citing the case of Transco PLC, the rule
is said to be confined to exceptional circumstances where the occupier has brought some
dangerous thing onto his land which would pose a high risk to neighbouring property if at all it
would escape and thereby, amount to an extraordinary and unusual use of land. Fourth, the
escape must have caused damage and the damage msut have been one that was reaonsably
foreseeable; Cambridge Water Co.

The final point of discussion in relation to this answer would be the applicable defenses for
Sylvia in this situation. Considering the situation, there are no defenses that are possible that
make the perfect fit for Sylvia to rely upon in order to discharge her liabilities. Therefore, Sylvia
would be held as guilty for the nuisance in this instance as well.