The legal issues that have arisen in this scenario are those concerned with private nuisance. The tort of private nuisance has been developed to protect the interests of land owners who have the right to the use and enjoyment of their property without interference. It is effectively the land that is protected and only those who own or have an interest in the land may bring a claim in private nuisance. The nuisance that Kate is suffering stems from the noise generated by a nearby airfield. Statute and case law will be employed to determine whether Kate has a case and what remedies if any are available to her.
When cases of private nuisance arise it is not always possible to ascertain what the outcome will be. This is because the courts will usually be required to resolve competing interests between neighbouring properties both with owners or other interested parties who will also have the right to the use and enjoyment of their land. A private nuisance may be defined as an unreasonable interference with the use and enjoyment of land or with some right over, or connection with it. Steele, J (2014) p 595. For example, contaminating another persons land with little or toxic fumes would be considered to be a private nuisance.
Kate bought the property two years ago and moved there with her partner Jon. They were aware that there was an airfield nearby and were aware that it is used by the military who use it as a drop zone and also that part of the airfield is leased to a commercial company who offer sky diving and flying lessons. Planning permission has been granted for all the activities that take place at the airfield. Furthermore, the local authority have concluded that there are no issues regarding statutory nuisance. The site has been used as an airfield for more than ten years and that the commercial company Sky High Ltd are acting lawfully in their use of the airfield. In addition, the local community benefits from the visitors which are attracted to the area. This in itself may be seen as a public interest being gained from the activities that are carried out by Sky High Ltd. The court would take this into account in any action that was brought. There are two further defences that are available to Sky High Ltd. The first of these is prescription, if the land has been used as an airfield for more than twenty years without any nuisance complaints being made then the occupier may have gained a prescriptive right to continue using the land as an airfield. Secondly, there is the defence of statutory authority arising from the granting of planning permission. This, however, is not a complete defence as if planning permission has materially altered the character of an area. In this case it would be doubtful as there was already an operational airfield in existence prior to the granting of planning permission in regards to the permission granted to Sky High Ltd. Furthermore, the activities that Sky High Ltd are engaging in, it could be argued, is a reasonable use of an established air field. Sky High Ltd also claim that they have received no other complaints since they began operating from the airfield and may as a consequence assert that Jon and Kate are oversensitive which the court would consider in determining reasonable use of the land. Protection is not afforded to oversensitive claimants by the courts in private nuisance cases. Private nuisance only protects the ordinary use and enjoyment of land. Giving consideration to the fact that Sky High Ltd only carry out their activities on 120 per year and that the other local residents appear to tolerate these activities …show more content…
It was held in this case that ordinary paper would not have been damaged and therefore there was no element of foreseeability. The claim failed because the paper was sensitive to heat. The principle was expressed thus, It is necessary to determine whether the act complained of is an inconvenience materially interfering with the ordinary physical comfort of human existence , not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions obtaining amount English people (Luxmoore, J at
When cases of private nuisance arise it is not always possible to ascertain what the outcome will be. This is because the courts will usually be required to resolve competing interests between neighbouring properties both with owners or other interested parties who will also have the right to the use and enjoyment of their land. A private nuisance may be defined as an unreasonable interference with the use and enjoyment of land or with some right over, or connection with it. Steele, J (2014) p 595. For example, contaminating another persons land with little or toxic fumes would be considered to be a private nuisance.
Kate bought the property two years ago and moved there with her partner Jon. They were aware that there was an airfield nearby and were aware that it is used by the military who use it as a drop zone and also that part of the airfield is leased to a commercial company who offer sky diving and flying lessons. Planning permission has been granted for all the activities that take place at the airfield. Furthermore, the local authority have concluded that there are no issues regarding statutory nuisance. The site has been used as an airfield for more than ten years and that the commercial company Sky High Ltd are acting lawfully in their use of the airfield. In addition, the local community benefits from the visitors which are attracted to the area. This in itself may be seen as a public interest being gained from the activities that are carried out by Sky High Ltd. The court would take this into account in any action that was brought. There are two further defences that are available to Sky High Ltd. The first of these is prescription, if the land has been used as an airfield for more than twenty years without any nuisance complaints being made then the occupier may have gained a prescriptive right to continue using the land as an airfield. Secondly, there is the defence of statutory authority arising from the granting of planning permission. This, however, is not a complete defence as if planning permission has materially altered the character of an area. In this case it would be doubtful as there was already an operational airfield in existence prior to the granting of planning permission in regards to the permission granted to Sky High Ltd. Furthermore, the activities that Sky High Ltd are engaging in, it could be argued, is a reasonable use of an established air field. Sky High Ltd also claim that they have received no other complaints since they began operating from the airfield and may as a consequence assert that Jon and Kate are oversensitive which the court would consider in determining reasonable use of the land. Protection is not afforded to oversensitive claimants by the courts in private nuisance cases. Private nuisance only protects the ordinary use and enjoyment of land. Giving consideration to the fact that Sky High Ltd only carry out their activities on 120 per year and that the other local residents appear to tolerate these activities …show more content…
It was held in this case that ordinary paper would not have been damaged and therefore there was no element of foreseeability. The claim failed because the paper was sensitive to heat. The principle was expressed thus, It is necessary to determine whether the act complained of is an inconvenience materially interfering with the ordinary physical comfort of human existence , not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions obtaining amount English people (Luxmoore, J at