Private nuisance Flashcards
(48 cards)
Nuisance
Nuisance is a property-based tort. The person who may bring a claim for nuisance is the occupier of that land. By contrast with trespass, a person seeking an action in nuisance does not have to prove that the interference was direct or intentional, only that it was an unreasonable interference. Nuisance predominantly deals with indirect harm. Nuisance is a more subtle interference with the enjoyment of land which does not disturb the owner’s right to possession of land.
Nature of interests protected
- Protection against physical damage (Goldman v Hargrave)
- Protection of the enjoyment of land which might be interfered with by noise or smells
- Protection of ‘support of land in its natural state’ (Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board).
Elements of private nuisance
P has an interest in land (right to exclusive possession)
D is the creator, adopter or authoriser of the nuisance
Interference with the use or enjoyment of the land
Which is substantial and unreasonable
P has an interest in land (right to exclusive possession)
Hunter v Canary Wharf
Principle: a right of exclusive possession of land is necessary to entitle a person to sue in private nuisance
e.g. a spouse cannot sue where they do not have exclusive possession of the land.
Facts: P was a group f local people. Moreover they were not restricted to householders who have the exclusive right to possess the places where they live, whether as freeholders or tenants, or even as licensees. They included people with whom householders share their homes, for example as wives or husbands or partners, or as children or other relatives. All of these people claimed damages in private nuisance, by reason of interference with their television viewing or by reason of excessive dust.
D is the creator, adopter or authoriser of the nuisance
There is no need for D to have any interest in land.
Creator:
Fennell v Robson Excavations Pty Ltd.
Principle: Anyone who is themselves responsible for creating a nuisance can be sued, regardless of whether they were at fault in doing so or had any interest in the land from which the nuisance emanated
Facts: Robson was hired by a developer to build a mud bank on property under its control, on the understanding that a retaining wall would then be built to prevent slippage. However, the developer filed for bankruptcy before the wall was built and, during a period of heavy rain, the mud wall collapsed, threatening the foundational stability of a neighbouring house (owned by Fennell). Since the developer was bankrupt, Fennell brought an action against Robson on the basis that, although it was not, and never had been, in possession of the land, and was not at fault in constructing the mud well, nevertheless it was the creator of the nuisance.
Adopter:
Sedleigh-Denfield v O’Callaghan
Principle: A person who adopts or continues a nuisance on land under their control may also be liable for nuisance. T
Facts: Workers employed by a local council trespassed onto the defendant’s land in order to lay a drain from a neighbouring property. The workers installed grating over the drain but did so negligently, as a result of which leaves and other debris started to collect in the drain on the defendant’s land. The defendant became aware of the drain on his land and started to make use of it himself. He did not sue the council in trespass to land. Eventually, the debris collecting in the grate blocked the drain, causing flooding on another (third) neighbouring property belonging to the plaintiff. The plaintiff sued the defendant in private nuisance.
The House of Lords held that the defendant could be sued, despite the fact that he did not create the nuisance. However, it clarified that, in these situations, some kind of fault is required for liability to arise.
Authoriser:
Peden v Bortolazzo
Principle: A person can be liable for a nuisance created by other persons.
Facts: P (Peden) was the occupier of premises used as a motel. D (Celina Bortalazzo) was the owner of adjacent property, on which there was a house which has been divided into two residential flats. It was alleged that tenants in one of the flats were regularly engaged in the making of excessive noise, smoke and unruly and drunken behaviour at all hours of the day, which was interfering with the profitability of the plaintiff’s business. The tenants’ lease contained an express prohibition on their committing any nuisance. The plaintiff sued the defendant for the nuisance. In the result, the Court found that the defendant had not expressly authorised the tenants to create a nuisance or that a nuisance was certain to result from the residential lease to the tenants and therefore dismissed the plaintiff’s claim.
Interference with the use or enjoyment of the land
Two types of interference:
1. Interference with amenity value
2. Material damage
A person’s interest in the ‘use and enjoyment’ of land extends beyond the assurance of security against physical interferences.
Hunter v Canary Wharf
More is required than the mere presence of a neighbouring building to give rise to an actionable private nuisance. Indeed, for an action in private nuisance to lie in respect of interference with the plaintiff’s enjoyment of his land, it will generally arise from something emanating from the defendant’s land. Such an emanation may take many forms – noise, dirt, fumes, a noxious smell, vibrations, and suchlike. Occasionally, activities on the defendant’s land are in themselves so offensive to neighbours as to constitute an actionable nuisance.
There is a debate, flowing from Hunter, as to whether causing a person personal injury upon their land can ever be a private nuisance. Hunter has often been taken to suggest not, owing to its insistence that nuisance is an interference with land rights, not with the person. Nonetheless, the view stated is that, provided that there is an interference with the plaintiff’s use and enjoyment of her land sufficient to constitute a nuisance, there is no reason why she cannot use for personal injuries she has suffered in consequence of the interference. An analogous case tending to support this conclusion is TCN Channel 9 v Anning, in which P claimed to have suffered mental injuries as a result of a television crew trespassing on his land. The court accepted in principle(albeit obiter) that P who suffers personal injury as a result of an intentional trespass to land (caused, for example, by a stalker) can recover for the injury.
Thompson-Schwab v Costaki
Principle: existence of a brothel near a residence could constitute a nuisance.
Laws v Florinplace
Principle: presence of a bookshop selling hardcore pornography coud constitute a nuisance.
An example of an interest that is not protected in Australian law, at least directly, is privacy. See, eg, Victoria Park Racing v Taylor (1936) 58
Principle: a landowner has no right not be be observed in the use of premises, even if they are used for commercial purposes that may be injured by the observation.
Facts: D broadcast descriptions of races taking place on P’s land, attendance at races and profits fell.
Which is substantial and unreasonable
Substantial:
Walter v Selfe
Principle: Since nuisance is an action on the case, which requires ‘damage’, the effect of the nuisance on the plaintiff’s use and enjoyment of her land, or the actual material damage to that land, must be more than trivial to be actionable.
‘to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness …as an inconvenience materially interfering with the ordinary comfort physically of human existence’
Facts: P (Walter) sought an injunction for nuisance in respect of the smell and cinders that resulted from the defendant (Selfe) making bricks in a brick kiln on a strip of land that had once been a garden and a field. The kiln was built on land adjoining the plaintiff’s house. P alleged that the smell and cinders from the kiln affected the health of the occupier of P’s house and caused damage to his property, trees and plantations. P succeeded in obtaining an injunction for private nuisance.
Unreasonable:
balancing factors
Hunter v Canary Wharf
ELEMENT: P HAS AN INTEREST IN LAND (RIGHT OF EXCLUSIVE POSSESSION)
Principle: a right of exclusive possession of land is necessary to entitle a person to sue in private nuisance
e.g. a spouse cannot sue where they do not have exclusive possession of the land.
Facts: P was a group of local people. Moreover they were not restricted to householders who have the exclusive right to possess the places where they live, whether as freeholders or tenants, or even as licensees. They included people with whom householders share their homes, for example as wives or husbands or partners, or as children or other relatives. All of these people claimed damages in private nuisance, by reason of interference with their television viewing or by reason of excessive dust.
Fennell v Robson Excavations Pty Ltd.
PRINCIPLE: D IS THE CREATOR OF THE NUISANCE:
Principle: Anyone who is themselves responsible for creating a nuisance can be sued, regardless of whether they were at fault in doing so or had any interest in the land from which the nuisance emanated
Facts: Robson was hired by a developer to build a mud bank on property under its control, on the understanding that a retaining wall would then be built to prevent slippage. However, the developer filed for bankruptcy before the wall was built and, during a period of heavy rain, the mud wall collapsed, threatening the foundational stability of a neighbouring house (owned by Fennell). Since the developer was bankrupt, Fennell brought an action against Robson on the basis that, although it was not, and never had been, in possession of the land, and was not at fault in constructing the mud well, nevertheless it was the creator of the nuisance.
Sedleigh-Denfield v O’Callaghan
PRINCIPLE D IS THE ADOPTER OF THE NUISANCE:
Principle: A person who adopts or continues a nuisance on land under their control may also be liable for nuisance. T
Facts: Workers employed by a local council trespassed onto the defendant’s land in order to lay a drain from a neighbouring property. The workers installed grating over the drain but did so negligently, as a result of which leaves and other debris started to collect in the drain on the defendant’s land. The defendant became aware of the drain on his land and started to make use of it himself. He did not sue the council in trespass to land. Eventually, the debris collecting in the grate blocked the drain, causing flooding on another (third) neighbouring property belonging to the plaintiff. The plaintiff sued the defendant in private nuisance.
The House of Lords held that the defendant could be sued, despite the fact that he did not create the nuisance. However, it clarified that, in these situations, some kind of fault is required for liability to arise.
Peden v Bortolazzo
PRINCIPLE: D IS THE AUTHORISER OF THE NUISANCE:
Principle: A person can be liable for a nuisance created by other persons.
Facts: P (Peden) was the occupier of premises used as a motel. D (Celina Bortalazzo) was the owner of adjacent property, on which there was a house which has been divided into two residential flats. It was alleged that tenants in one of the flats were regularly engaged in the making of excessive noise, smoke and unruly and drunken behaviour at all hours of the day, which was interfering with the profitability of the plaintiff’s business. The tenants’ lease contained an express prohibition on their committing any nuisance. The plaintiff sued the defendant for the nuisance.
Types of interference
Two types of interference:
1. Interference with amenity value
2. Material damage
A person’s interest in the ‘use and enjoyment’ of land extends beyond the assurance of security against physical interferences.
Amenity: can’t enjoy house the way you’d like to
Hunter v Canary Wharf
ELEMENT: INTERFERENCE WITH AMENITY VALUE
Principle: more is required than the mere presence of a neighbouring building to give rise to an actionable private nuisance. Indeed, for an action in private nuisance to lie in respect of interference with the plaintiff’s enjoyment of his land, it will generally arise from something emanating from the defendant’s land. Such an emanation may take many forms – noise, dirt, fumes, a noxious smell, vibrations, and suchlike. Occasionally, activities on the defendant’s land are in themselves so offensive to neighbours as to constitute an actionable nuisance.
Facts: It was considered whether and when electrical interference with television reception can count as an interference with the use and enjoyment of land.
There is a debate, flowing from Hunter, as to whether causing a person personal injury upon their land can ever be a private nuisance. Hunter has often been taken to suggest not, owing to its insistence that nuisance is an interference with land rights, not with the person. Nonetheless, the view stated is that, provided that there is an interference with the plaintiff’s use and enjoyment of her land sufficient to constitute a nuisance, there is no reason why she cannot use for personal injuries she has suffered in consequence of the interference. An analogous case tending to support this conclusion is TCN Channel 9 v Anning, in which P claimed to have suffered mental injuries as a result of a television crew trespassing on his land. The court accepted in principle(albeit obiter) that P who suffers personal injury as a result of an intentional trespass to land (caused, for example, by a stalker) can recover for the injury.
Thompson-Schwab v Costaki
ELEMENT: INTERFERENCE WITH AMENITY VALUE
Principle: existence of a brothel near a residence could constitute a nuisance.
Laws v Florinplace
ELEMENT: INTERFERENCE WITH AMENITY VALUE
Principle: presence of a bookshop selling hardcore pornography could constitute a nuisance.
Victoria Park Racing v Taylor
ELEMENT: INTERFERENCE WITH AMENITY VALUE
Principle: An example of an interest that is not protected in Australian law, at least directly, is privacy.
A landowner has no right not be be observed in the use of premises, even if they are used for commercial purposes that may be injured by the observation.
Facts: D broadcast descriptions of races taking place on P’s land, attendance at races and profits fell.
Halsey v Esso Petroleum
ELEMENT: MATERIAL DAMAGE
Principle: It was held that as long as the damage is not trivial, liability for nuisance will be established by proof of damage. Serious damage is likely to be viewed by the courts as an unreasonable interference.
Facts: D had an oil storage and issuing depot. On the premises was a boiler house out of which emerged two chimneys. These two chimneys disgorged acid s which contained sulfuric acid. D ran a night shift from 10pm - 6am and the noise from the depot was very high. Oil tankers came and went all night. P lived in a house in a residential neighbourhood adjacent to the depot. Acid smuts from the chimneys damaged P’s clothing which was hanging from the clothesline and his car on the footpath.
Walter v Selfe
ELEMENT: SUBSTANTIAL:
Principle: Since nuisance is an action on the case, which requires ‘damage’, the effect of the nuisance on the plaintiff’s use and enjoyment of her land, or the actual material damage to that land, must be more than trivial to be actionable.
‘to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness …as an inconvenience materially interfering with the ordinary comfort physically of human existence’
Facts: P (Walter) sought an injunction for nuisance in respect of the smell and cinders that resulted from the defendant (Selfe) making bricks in a brick kiln on a strip of land that had once been a garden and a field. The kiln was built on land adjoining the plaintiff’s house. P alleged that the smell and cinders from the kiln affected the health of the occupier of P’s house and caused damage to his property, trees and plantations. P succeeded in obtaining an injunction for private nuisance.
St Helen’s Smelting v Tipping
ELEMENT: UNREASONABLE:
P: Where material damage to property occurs, it is prima facie unreasonable regardless of location or any other factual circumstance, and an action should succeed unless the defendant can prove that the damage was reasonable in the circumstances (note here that ‘reasonable use’ is a specific defence to private nuisance). Why should I have to prove that it was wrong of you to smash my fence, for example, regardless of where I live? In respect of this type of interference, then, private nuisance is similar to trespass to land in the sense that the plaintiff need merely prove that D caused the damage.
In contrast, where the interference is merely with the use and enjoyment of land, the plaintiff must prove that interference was unreasonable. The answer to this question involves ‘balancing’ the plaintiff’s interest in the enjoyment of their land with the defendant’s interest in carrying out the act creating the alleged nuisance (the rule of ‘give and take’).
Kennaway v Thompson
ELEMENT: UNREASONABLE
BALANCING FACTOR: Give and take
Principle: there is a need for ‘give and take’ when considering whether interference with the use and enjoyment of land is ‘unreasonable’ for the purposes of private nuisance.
‘The question is whether the neighbour is using his property reasonably, having regard to the fact that he has a neighbour. The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way and there must be a measure of give and take, live and let live.’
Facts: P, Kennaway, owned a house on land adjoining a lake on which a motor boat racing club conducted regular races. She sued for an injunction and damages in an action for nuisance and succeeded on appeal.
Clary v The Principal and Council of the Womens College
ELEMENT: UNREASONABLE
BALANCING FACTOR: Give and take
‘But the noises made by the students were only noises of the kind that are incidental to the occupation of premises as a dwelling. They consisted of noises made by such acts as walking about, scraping chairs along the floor, having baths, talking and laughing, and preparing for bed. A landlord who lets a portion of a building for the accommodation of university students can only reasonably expect that such students will keep late hours and in the course of doing so will make such noises’
Robinson v Kilvert
ELEMENT: UNREASONABLE
BALANCING FACTOR: The sensitive plaintiff
Principle: This was held not to be an unreasonable use of land to do something that would not inconvenience the ordinary person.
Facts: The claimant paper manufacturer sought an injunction to prevent his landlord from heating the property to levels that interfered with his business.
McKinnon Industries v Walke
ELEMENT: UNREASONABLE
BALANCING FACTOR: The sensitive plaintiff
Principle: Since the damage was unreasonable, it did not matter that the plants in question happened to be worth more than ordinary plants.
Facts: Emissions from the defendant’s factory damaged valuable orchids belonging to the plaintiff, which was prima facie unreasonable.
Hill v Higgins
ELEMENT: UNREASONABLE
BALANCING FACTOR: The sensitive plaintiff
Facts: D’s grass was overgrown, requiring no more than a few minutes of maintenance. P’s claims of nuisance were held to be a gross overreaction
