Private Nuisance

Question 1

Definition?

Answer 1

Private nuisance is an unlawful interference with an occupier’s use or enjoyment of land or of some right over or in connection with it. Hargrave v Goldman

Question 2

Onus

Answer 2

Plaintiff to prove they have title and interference, defendant to demonstrate reasonableness and any defences. Kraemers v Attorney General

Question 3

Time Limitations

Answer 3

Three years if damage relates to personal injures s11 Limitation of Actions Act 1974 (Qld)
Six years if damage relates to personal property. s10(a) Limitation of Actions Act 1974 (Qld) → is it s10(1)(a)??
If nuisance is continuing, plaintiff can commence action at any time during the continuance and recover for all damage up to that time. Earl of Harrington v Derby Corporation

Question 4

Who do you sue?

Answer 4

Liability Occupiers
Land Lords
Non-Occupiers

Question 5

Liability Occupiers

Answer 5

• A person is liable for a nuisance or a potential nuisance where he or she, or anyone for whose conduct he or she is responsible

• created the nuisance
• permitted the nuisance to arise by failing to exercise reasonable care
• continued or adopted the nuisance
• negligently failed to remedy or abate the nuisance. Hargrave v Goldman

Question 6

Land Lords

Answer 6

• A landlord will only be liable for a nuisance created by tenant if the nuisance was expressly authorised by landlord or was certain to result from purposes for which property is let. Peden Pty Ltd v Bortolazzo
However, Mere inaction does not equate to implied authorisation Peden Pty Ltd v Bortolazzo

Question 7

Non-Occupiers

Answer 7

• A trespasser who creates a nuisance will be liable. Southport v Esso
• The nuisance does not need to emanate from the defendant’s land. Halsey v Esso

Question 8

1. TITLE TO SUE

Answer 8

• Licensee has no title to sue. Malone v Laskey
• Exclusive/Actual Posession of land Kelson v Imperial Tobacco Co.
• Mere occupiers and licensees CANNOT sue in private nuisance Oldham v Lawson (No 1) → Husband of owner, no title to sue

Question 9

2. INTERFERENCE WITH A LEGALLY RECOGNISED RIGHT

Answer 9

• A plaintiff has right to the quiet use and enjoyment of the possession of land free from unreasonable interferences: Elston v Dore
Interference with servitudes: SGMH
• Right of support of land, but not landfill will grant title. Sutherland Shire Council v Becker
• Right to access their own property Geoffrey v Hoing
• Right to not have smells, noise and vibration Munro v Southern District Dairies
• No dust reducing enjoyment of land Hunter v Canary Wharf

Question 10

3. DAMAGE

Answer 10

Interference must be actual or likely and not merely possible or prospective and either cause material damage to the land or substantial and unreasonable of land. St Helens Smelting Co v Tipping

Question 11

3 a) MATERIAL DAMAGE TO PROPERTY

APPLY THIS TEST IF THE LAND OR PROPERTY ITSELF IS DAMAGED

Answer 11

• Interference must be so substantial as to cause harm: Munro v Southern Dairies
i) NONFEASANCE (FAILURE TO ACT) (LIABLE IF AT FAULT)
• It is defendant’s duty is to do what is reasonable for them to do having regard to expenditure, means of removing danger compared to plaintiff’s capacity to protect themselves: Hargrave v Goldman
ii) MISFEASANCE (POSITIVE ACT) (STRICT LIABILITY)
• Where material damage is caused by a positive act causing harm on the defendant’s part, the defendant is strictly liable for the results of the misfeasance. St Helens Smelting Co v Tipping

Question 12

3 b) SUBSTANTIAL AND UNREASONABLE INTERFERENCE

APPLY THIS TEST WHEN THE DEFENDANT IS MAKING NOISE ETC

Answer 12

• To be actionable in private nuisance, an interference with the use and enjoyment of the land must be an unreasonable and substantial interference. Munro v Southern Dairies
i) SUBSTANTIAL
The Interference must be more than trivial: Munro v Southern Dairies
ii) UNREASONABLE
• Objective test: An interference will be considered unreasonable if it materially interferes with the ordinary physical comfort of human existence: Walter v Selfe
• Start from the premise of ‘give and take’: Bamford v Turnley;
Determined through 5 FACTORS*

Question 13

5 Factors Substantial and Unreasonable Interference?

Answer 13

1. LOCALITY
   Locality that changes over time will not prevent the interference from being unreasonable.
   Urban? Rural? Industries? Munro v Southern Dairies
2. TIME & DURATION
   • When and for how long? McKenzie v Powley
3. NATURE OF ACTIVITIES
   • Whether the activity is essential for society Munro v Southern Dairies
4. AVAILABILITY OF ALTERNATIVE MEANS
   • If there are any alternatives that are reasonably open to the defendant, this may render the means unreasonable. Munro v Southern Dairies
5. MOTIVE
   Motive may be a relevant part of the give and take principal Hollywood Silver Fox Farm v Emmett

Question 14

4. CAUSATION

Answer 14

• There is no liability for nuisance unless the consequences for which the plaintiff seeks to make the defendant liable were reasonably foreseeable. Elson v Dore