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Nuisance - Essay Example

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Nuisance being a separate tort in itself has been divided into public and private nuisance, the latter is defined as an unreasonable interference with the enjoyment of land or some other interest in relation to its enjoyment. The objective principle or "reasonable user principle" is the important basis of the tort.
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Nuisance Essay
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However in Hunter v. Canary Wharf the House of Lords stated that the distinction implied the creation of two separate torts.
The interference with use or enjoyment of land of claimant takes place through various ways, which includes adverse affect on negihour's sleep through vibrations and noises (Halsey v Esso Petroleum) and encroachment of roots (Solloway v. Hampshire CC) . The reasonableness of act is considered when determining on possibility of nuisance, so an action for nuisance may fail if found of reasonable use to the community and is of a temporary nature(Harrison v. Southwark). Reasonableness is dependent on variety of factors which include the duration of interference, sensitivity of the plaintiff, character of neighbor hood, and the defendant's fault.
Further the character of the neighbourhood may be a vital factor in case of interference with enjoyment or use. (Sturger v. Bridgman) However it is not important when physical damage to property is sustained. (St. Helens)
Finally the fault on the part of claimant can be found to be strict in certain situation while fault based in others. If it is found that the claimant continued the nuisance for example by annoying his neighbor through noises which are intolerable, then an injunction would be granted.(Christie v Davey)The traditional view has been to create a distinction between the creator of the nuisance (with strict liability) and one who carried on or adopted the nuisance (which is decided on the ground that whether the defendant knew or ought to have known of the nuisance) . By the case law it has been seen that the courts have ignored sensitivity issues when there is a strong possibility of malice.(Hollywood Fox v. Emmett).
The traditional position had been that only those having a legal interest could bring an action. However trespassers have been included. (Pemberton v. Sothwark)
The decision of the House of Lords in Hunter v. Canary Wharf is of significance because it scrupulously analyzed on the previous cases, upholding the traditional view. Lord Cooke argued that the right to sue could either be confined to those having an interest in the land or to those who live there; it entirely depended on the policy of law. Further Lord Goff stated that the current state of law could bring in certainty and efficacy. The decision of hunter can be considered to be an important aspect of looking at the interpretation given by the judges to develop the law. However it can be said that the dissenting opinion of Lord Cooke can be overridden by the fact that on follow up to ECHR it was found that all the applicants under hunter should be protected under Article 8 ECHR. Further it can be said that harassment an issue in Hunter can now be claimed under other heads rather than nuisance. (Khorasandjian v. Bush)In McKenna v British Aluminuim it was accepted that due to the Art8 claims based on property would be inappropriate. The development of the case law is therefore entirely dependent on the interpretation of judges of the Human Rights Act 1998.
The area of public nuisance has been said to be an unsatisfactory area covering loops of ... Read More
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