Haney Comanda

Torts Problem Question: Declan Doldrums

As Declan purchased the estate (McDonnell House) last year, Anthony, being a current resident
of the neighborhood utilizes his farmland to re-enact the War of the Roses for the public which
includes lectures and re-enactments of the war being staged from Thursday through Sunday and
last for eight hours per day. These events are known to be popular, especially with schools across
the country, leading to Anthony winning several tourist and educational awards. Declan on the
other hand, purchases the McDonnell house completely aware of Anthony’s acts within his
premises. Declan then decided to diversify his revenue streams by utilizing some parts of his
land and the golf course included in the land to host events such as weddings and golf
tournaments.

Anthony’s staging of the re-enactments clashes with the main days for golf and weddings on
Declan’s land. Noise from the re-enacted battles caused problems for Declan and led to his
customers complaining about the noise as golf players struggled to concentrate and the
enactments interfered with the weddings. This resulted in Declan giving 2 full refunds to his
customers and further weddings have been canceled due to this. Declan has then reluctantly
moved out to live in his other property.

The issue, in this case, is whether Anthony’s re-enactments are reasonable and whether he is
causing an unreasonable interference to Declan’s property. One huge factor that one might
consider as a defense for Anthony’s case is Declan’s coming to the nuisance. However, in Private
Nuisance, coming to the nuisance is considered to be no defense as stated in Coventry v
Lawrence [2012] EWCA Civ 26 where the court confirmed the well-known principle that it is no
defense to a nuisance claim to say that a claimant “came to the nuisance”. Therefore, we would
have to look at other defenses for Private Nuisance.

One of the key elements of Private Nuisance is unreasonable interference which means
foreseeably interfering with the claimant’s quiet enjoyment of their own land. There are five
factors that can be used to determine whether an unreasonable interference has occurred. (1)
Character of the neighborhood (2) Sensitivity of the claimant (3) Duration of the nuisance (4)
Public benefit (5) Malice. In Anthony’s case, it is plausible that we can use one of these factors
to defend his case.

First, the character of the neighborhood; refers to what might be considered reasonable within
the particular area. Anthony’s re-enactments are deemed to be unreasonable within the character
of the neighborhood as relevant to Sturges v Bridgman [1879] 11 Ch D 852 where the locality
should be considered to decide whether a nuisance is reasonable in a particular location.
However, Declan’s actions also constitute as unreasonable in terms of locality, which then adds a
point to the next factor; the Sensitivity of the Claimant. This factor can be used to judge how the
existence of the nuisance affects a reasonable person. This factor arises several issues to address:
whether Declan’s events are unusually sensitive to Anthony’s re-enactments, whether or not
there was a nuisance because of Anthony’s interference with Declan’s events when other owners
around the neighborhood have not complained about Anthony’s re-enactments and whether
Anthony’s behavior within his own property harmed anything other than Declan’s events.
Significantly, in Robinson v Kilvert [1889] 41 Ch D 88 where the Claimant’s claim for nuisance
had failed, stating that since the nuisance was not one that would affect a reasonable person and
that the claimant’s particular business was the only thing that manifested the nuisance, this can
be applicable to Anthony’s case as Anthony’s re-enactments have or will ever not cause a
nuisance to a reasonable person.

Furthermore, another factor that will be beneficial for Anthony’s defense is the Public benefit. As
stated above, Anthony’s re-enactments are extremely popular to the public, especially with the
schools. In fact, it is stated that Anthony has won several tourist and educational awards.
Therefore, presumptively, the courts will generally hold Anthony’s re-enactments are of public
benefit. Moreover, it is clearly established that Declan has a proprietary right and he claims that
Anthony is being unreasonable. However, it is stated that Private Nuisance must cause harm
therefore, Declan should be able to demonstrate that there has been some harm from Anthony’s
actions. There are three types of recognized harm under Hunter v Canary Wharf [1997] AC 655,
one of which is causing physical harm to the claimant’s property. With that being said, it is
evident that Anthony is not causing any physical harm to Declan’s property in any way as
significant to St Helen’s Smelting Co v Tipping [1865] 11 HL where the smelting factory
discharged noxious gases which resulted to the claimant’s trees on its land damaged by the fumes
and noxious gases.

Based on the defenses presented, it can be concluded that Anthony may be able to successfully
contest a legal action brought by Declan in nuisance. The character of the neighborhood, the
sensitivity of the claimant, and the public benefit all provide compelling defenses for Anthony's
case. Furthermore, the lack of physical harm caused to Declan's property also weakens Declan's
case. Overall, the court may find that Anthony's re-enactments are not causing an unreasonable
interference on Declan's property and therefore not in violation of private nuisance.