Private nuisance requires an unreasonable use of land by the defendant which leads to an unreasonable interference with the claimant's use or enjoyment of their own land. This requires a balancing exercise of competing rights often referred to as the principle of give and take. Unreasonable interference alone is insufficient.

(ii) Duration

 

Most nuisances consist of a continuing state of affairs. In most instances the claimant is seeking an injunction to prevent the continuance of such nuisances. In general the longer the nuisance lasts the greater the interference and the greater the likelihood of it being held to be an unlawful interference. However, an activity which is temporary may constitute a nuisance.

(iii) Locality/Neighbourhood

 

The reasonableness of the use of land will be assessed with regard to the nature of the locality in deciding whether there exists an actionable nuisance. As Thesiger LJ stated in Sturges v Bridgman, 

 

iv) Malice

Where the defendant acts out of malice, the actions are more likely to be held unreasonable.

 

Christie v Davey [1893]

v) Foreseeability asks how likely it was that a person could have anticipated the potential or actual results of their actions. ... In tort negligence lawsuits, foreseeability asks whether a person could or should reasonably have foreseen the harms that resulted from their actions.

-          Who can be sued? The person who causes the nuisance is usually the person who can be sued. It appears that the defendant does not have to have an interest in the land on which the activity takes place - Esso Petroleum Co Ltd v Southport Corporation [1956].

However, physical damage is not essential; discomfort and inconvenience may be enough.

The case of Cambridge Water Co v Eastern Counties Leather (1994) establishes that the test for remoteness of damage in nuisance is reasonable foreseeability.

Statutory authority: where a statute orders something to be done, there will be no liability in nuisance for doing this and for any consequence: Allen v Gulf Oil Refining Ltd [1980] QB 156.

Act of God: Nicholls v Marsland (1876) 2 Ex D 1.
 • Planning consent: Following the Supreme Court’s decision in Coventry (t/a RDC Promotions) v
 Lawrence; also known as Lawrence v Fen Tigers Ltd; Lawrence v Coventry (t/a RDC Promotions) [2014] UKSC 13,[2014] A.C. 822) it is now clear that the grant of planning permission will simply be one of the factors taken into account by the court but will not of itself afford a defense in nuisance. This significantly waters down the (apparent) previous position that where planning permission was given for development that would inevitably mean a change in nature of the locality, the changing nature of the locality could be a defense against a claim in nuisance, provided that the operation was undertaken with reasonable care

There are three inapplicable defenses
1. Coming to the nuisance: the defendant cannot argue that the claimant was aware of the nuisance when they moved into the area. The fact that the activity continued for some time without anyone complaining about it is not a defence: Bliss v Hall (1838) 4Bing NC 183 and Miller v Jackson [1977] QB 966; Watson v Corft Promo-Sport [2009] EWCA Civ 15. The latter case shows that, although not a defence, it might be relevant to the remedy granted to the claimant.
2. Social utility: the courts will not accept as defence that the nuisance caused by the defendant has a benefit to the general community or the public at large: Adams v Ursell [1913] 1 Ch 269 and Bellew v Cement Co [1948] LR P. 61. Again, although not adefence, social utility might be taken into account in considering the remedy.
3. Acts of many people: it is no defence that the defendant was simply one of many people causing the nuisance in question. This is so even if his/her actions in isolationwould not amount to a nuisance: Thorpe v Brumfitt (1873) LR 8 Ch App 650.