LAWS1113 Lecture 5

You're a Nuisance, Private Nuisance.

Requirements for tort of Nuisance (aka Private Nuisance):

  • Unreasonableness
  • Interference with land/enjoyment of land
  • (Indirect – cannot be a trespass to land)
  • Damage must be proven (mostly – reasonable expectation of imminent damage can also meet the requirements)

Interference with land/enjoyment of land

  • Infrequent/one-off incidents less likely to award anything more than nominal damages, if anything
  • Can also be an isolated result on a continuing situation (see British Celanese v Hunt [1969] 1 WLR 659, continuing storage of foil made the isolated escape of foil a continuing incident)
  • Must have an interest in or appropriate rights to the land - exclusive rights as required in trespass to land, cannot just be a licensee.

Unreasonableness

  • Type of damage – physical damage to property didn’t really need a reasonableness standard, although it is generally expected now – enjoyment to property always did.
  • Cannot be Trivial – must be decided according to the standards of reasonable people (see Stormer v Ingram (1978) 21 SASR 93 - bees flying into and stinging people not in the ordinary course sufficient to amount to a nuisance).
  • Give and Take - Neighbours are expected to provide minor inconvenience – it must reach a certain level to be considered ‘unreasonable’ (see Baxter v Camden LBC [2001] 1 AC 1, 21 per Lord Millett: noise produced by ‘ordinary’ use of domestic premises cannot be a nuisance even if it causes substantial interference with the use of neighbouring premises.)
  • Hypersensitivity - Must be considered unreasonable by a normal person (see Robinson v Kilvert (1889) 41 Ch D 88, where heat emanating from the defendant’s premises caused the plaintiff’s store of brown paper to be spoiled by drying out – heating your own premises is not considered unreasonable)
  • Hypersensitivity – can vary based on social beliefs, time frames, etc. (eg. Television broadcasting interference – different rulings decades apart)
  • Locality – certain behaviours are not unreasonable for certain localities (eg. Industrial areas) even though they may be for residential areas. However, the fact that land is being used in accordance with zoning or planning legislation does not prevent its being a nuisance – it merely makes it less likely to be unreasonable. (see Wheeler v Saunders [1996] Ch 19; Ports of Auckland Ltd v Auckland CC [1999] 1 NZLR 601. where even though the land was zoned for a pig farm, the smell resulting was still held to be an unreasonable nuisance)
  • Time and duration – nuisance must occur fairly frequently and at a time when considered unreasonable – noises at night time are held to be less reasonable than day time (see Daily Telegraph Co Ltd v Stuart (1928) 28 SR (NSW) 291 - loud noises and construction are much more acceptable during working hours than sleeping hours – injunction limited to 9am-5pm, but didn’t prohibit them.)
  • Motive – a reasonable action done with the intention of injuring the plaintiff can be held as unreasonable – motive can be the deciding factor (see Christie v Davey [1893] 1 Ch 316. – a noise made specifically to vex the neighbour was considered a nuisance even though the noise itself would have been reasonable otherwise)

Other Considerations

  • Nature of activity – eg. Sporting clubs with appropriate grounds are less likely to be found as nuisances for escaping balls, but still can be (see Lester-Travers v City of Frankston [1970] VR 2. – golf balls escaping golf course
  • Precautions – taking all reasonable precautions doesn’t prevent nuisance from occurring, but not having taken them means they can be mandated via injunction
  • Proof of Damage – Not actionable per se, must prove damage – physical discomfort fairly easy, but general comfort/amenities more difficult to prove eg. Bad odour is a subjective term, ties into hypersensitivity (see Baulkham Hills Shire Council v AV Walsh Pty Ltd [1968] 3 NSWR 138 – bad odour relies on number of witnesses agreeing it was unreasonable)
  • An act that provides benefit to the public can be held to a less strict standard, but ‘benefit to the community’ is not a valid defence to nuisance.
  • Interests protected – a sex shop or brothel next door can be considered to unreasonably interfere with enjoyment. Even an ugly, dominant building could be considered a nuisance (see Kent v Cavanagh). An unlawfully built obstruction of view can also be a nuisance, although a lawfully built one can’t. (see Victoria Park Racing & Recreation Grounds Co Ltd v Taylor – it isn’t nuisance to simply observe, describe, or photograph the use of premises – but it may have been if it had been a deliberate snooping action – nuisance one action for right to privacy, as no specific law exists)
  • Can generally only sue the person causing the nuisance, although in the case where the owner does or should have known about the nuisance, they may be liable as well. Inaction where a nuisance is known about but not rectified can also be unreasonable. Can even sue someone legally allowed on your land (not a trespasser) under nuisance (see Lippiatt v South Gloucestershire CC [2000] QB 51 – landlord with right under contract to enter/repair premises can still be sued under nuisance)

Defenses

  • Coming to the nuisance – if you move into an area where actions taking place could be considered nuisance, you can still try to sue – however this ties back to the locality issue, moving into an industrial area does not make reasonable actions in an industrial area unreasonable. Rarely a viable defence on its own.
  • Statutory Authorisation – “nuisance is authorised by statute if it is an inevitable consequence of 112 an activity that is expressly or impliedly authorised by statute” - government intervening to subsume the right of enjoyment of ones land in favour of public works – defendant still has to establish that the nuisance acts are an inevitable result of the statutory orders, and not a result of a failure to take necessary care. (see Allen v Gulf Oil [1981] AC 1001, 1015 where the odour was said to be inevitable act of fulfilling the statute) Alternatively, statues may include a nuisance clause imposing or preserving the liability of nuisance.

Remedies

  • Abatement – grants the right to commit legal wrongs (eg. Trespass) to correct the nuisance rather than going to court. Requires strong justification and generally notice of entry in advance, but if the nuisance is a health and safety issue, can be justified as immediate action. Is also available as a preventative measure, no damages actually required, just the imminent expectation thereof. Abatement removes any right of claim via the tort of nuisance. (Rebuilding a bridge which a landowner had allowed to fall into disrepair would not qualify as abatement: Campbell Davys v Lloyd [1901] 2 Ch 518. Nor would replacing clay pipes with plastic ones to prevent damage by nuisance-creating tree roots: Young v Wheeler [1987] Aust Torts Reports 68,966. The right to abate cannot justify assaulting someone in an attempt to bring to an end an obstruction of access to land: Richter v Risby (1987) 27 A Crim R 68.)
  • Injunctions – prohibitory (refrain from causing the nuisance) or mandatory (take reasonable precautions to prevent the nuisance from recurring). Only relevant if the nuisance is likely to repeat. Sometimes the court will simply award damages for future nuisance in lieu of an injunction, granting the defendant the right to continue the nuisance creating action (see Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287. an injunction was refused in lieu of damages because the injury was slight, could be compensated for, and an injunction would be oppressive)
  • Postponed Injunction – where time is required to perform a task or change procedures to prevent the nuisance. If so, damages will generally be awarded for the interim period.
  • Interlocutory Injunction – A temporary injunction that restraints the defendant from committing the nuisance pending the outcome of the trial.
  • Quia Timet Injunction – An injunction in anticipation of damage in the near future
  • Compensatory Damages – only for loss already suffered. Includes personal injury/shock, damages to chattels, loss of business, etc. provided it was foreseeable

Differences with Negligence

  • No need to prove duty of care (simply owning/leasing the land accomplishes that)
  • Negligence looks at acts, nuisance only looks at use of land
  • Liability for initial creation of nuisance is not dependent on negligence
  • Motive is relative for nuisance
  • Nuisance is more concerned with preventing future nuisance than compensation (favours injunctions over damages) so should be used over negligence if that’s the outcome your after

Public Nuisance

Single nuisance effecting large number of people (all persons or a cross-sectin of the population to come within its radius) (eg. Oil spill, damaged highway etc.). Even less likely to award damages than private nuisance.

Relevant Cases

Hunter v Canary Wharf – using your land for ordinary purposes (eg. Erecting a building) will not make you liable for nuisance. It was found that merely erecting a building that interferes with television receiption will not result in any liability, but it was mentioned that interference caused by the operation of machinery would constitute a different case

Walter v Selfe – A trivial interference cannot be a nuisance – the burning of bricks was found to be non-trivial, and an injunction was granted

Munro v Southern Dairies – the loss of a single nights sleep is not trivial, and sufficient grounds for actionable nuisance.

Kennaway v Thompson – people must be willing to give and take, and injunctions will frequently take this into account. Motorboat races held on a nearby lake were restricted in frequency and damages were awarded, but it wasn’t prohibited.

Clary v Women’s College – Ordinary usage of land does not constitute an actionable nuisance. The girls at the Women’s college were held to be behaving like and keeping the hours expected of college students, and their actions were not held to be an actionable nuisance for people who chose to rent to college students.

Robinson v Kilvert – Sensitive use does not constitute grounds for nuisance if non-sensitive use would be unaffected. Paper affected by heat from the floor below was held to be too sensitive to constitute a nuisance

St Helen’s Smelting v Tipping – Locality is normally a factor in nuisance, but not when physical damage is suffered.

Bolton v Stone – A one-off unexpected act does not constitute an actionable nuisance. The single cricket ball that somehow escaped the grounds was a sufficiently isolated event (6 times in 30 years) as to not constitute a nuisance

Miller v Jackson – In the case of social benefit, judges have the discretion to award damages in lieu of an injunction. Due to the importance of cricket in England, the fact that the club/ground was an actionable nuisance to the neighbouring house was not sufficient to shut the club down, they were ordered to pay damages in lieu of the injunction.

Hollywood Fox Farm v Emmet – Motive can be relevant if the action is on the boundary of being unreasonable. Shots fired on the next-door property for the purpose of preventing sensitive Silver Foxes from breeding were sufficiently malicious as to be unreasonable.

Campbelltown v Winton – “Coming to a nuisance” does not constitute a defence. Moving next door to a golf club still makes damage from golf balls an actionable nuisance.

Foster v Warblington – Just being present does not give grounds to sue in nuisance, the occupation must be of a substantial nature. Exclusive possession of land does not actually require a title to sue under nuisance.

Dennis v Ministry of Defence - In the case of social benefit, judges have the discretion to award damages in lieu of an injunction. The noise from a nearby RAF base as held to be an actionable nuisance, even though they were defending the country, but damages were offered in lieu of shutting the base down.

Fennell v Robson Excavations – indirect damage to land is actionable under nuisance if that damage is done via excavation of nearby land.

Sedleigh Denfield v O’Callaghan – “continueing” or “adopting” a nuisance makes you liable for the nuisance, if you had knowledge of means of knowledge of the nuisance and failed to take steps to abate it.

Goldman v Hargrave – failing to take reasonable precautions makes you liable for nuisance if damage results. Improperly putting out a burning tree that then flares up and damages your neighbours is an actionable nuisance.

Montana Hotels v Fasson – Adopting a nuisance requires knowledge of the nuisance. An occupier is not prima facie responsible for a nuisance created without his knowledge and consent. If he is to be liable a further condition is necessary, namely, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects.

Peden v Bortolazzo – A landlord cannot be liable for nuisance on the part of their tenants unless they know for certain that the nuisance will result as a consequence of letting out the property.