Private Nuisance - Lecture notes 1-2 PDF

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elements, cases, and tests of private nuisance...

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LAWS1061 Private Nuisance 

An unreasonable but indirect or intangible interference with a person’s use and enjoyment of land (see meaning of land) or some right in connection with or over it (Hargrave v Goldman), in respect of material injury to property or damage to sensibilities

Elements (1) Standing to Sue- Plaintiff must have an exclusive proprietary interest in, and constructive possession of, the land including, for instance, strata title  Owner- but not when they are leasing the property out as they don’t have exclusive possession.  Tenant  Licensee with exclusive possession  Landlord whose reversioary interest is affected (Hunter v Canary Wharf). Hunter v Canary Wharf establishes that the plaintiff must have actual factual possession of property and right to exclusive possession.  Cannot be: • Licensee without exclusive possession • Family member of actual owner: E.g. husband (spouse) (Oldham v Lawson) or daughter (child) of the owner (Hunter v Canary Wharf) (2) Unreasonable Interference with Land- D must have suffered material injury to their property or damage to sensibilities and the enjoyment of their land.  Tangible-Material Injury to Land Physical damage that is not trivial (low threshold). Eg. Dust, tree root, fire etc. Will satisfy the interference with land as being unreasonable (e.g. tree damage from noxious gas) (St Helen’s Smelting Co; Halsey v Esso). Locality is irrelevant (Munro)  Intangible- Interference with Enjoyment/Damage to Sensibilities o Eg. Smells, noises and offensive sights. o Where there is no material injury to the land, liability will depend on the conflicting interests of users of the land: o Must decide whether the nuisance is unreasonable or merely part and parcel of life – the ‘give and take, live and let live rule’ – for every nuisance complained of creates a reciprocal nuisance (Bamford v Turley) o Not trivial: more than ‘fanciful’, i.e. substantial (low threshold) – “not merely according to elegant and dainty habits… but… plain and sober notions…” o Must affect land per se and be non-consequential (^Walter v Selfe (1851)) o Question of fact and reasonableness dependent on a multitude of factors (3) Damage must be proven. Give and Take equation- Balancing interests of both parties (Defendants right to use their own land how they wish and Plaintiffs right to use their land without interference). Factors Extent- Reasonableness.  Locality- different communities used for different purposes. Eg. Rural/farming land would mean the court would exercise more leniency to farming practices in those areas as opposed to residential areas.  Context- Time of day etc  Utility- Might be performing important farming where interferences are unavoidable. Court must consider the reasonableness of the current practice. For

example, are the stables unreasonably close to the neighbour’s land/ could they be moved.  Abnormal sensitivities (of the plaintiff) 

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Can the defendant be sued? Just have to prove one.  Did the D create the nuisance? Strict Liability.  Did the D authorise the nuisance? - if the occupier permits the person to unreasonably use property. Such as if you hired out a music hall and they made excessive noise you’re still liable.  Did the D adopt/continued the nuisance? Stockwello Crown land with wild dog on it who eats the sheep of neighbours land (tangible). Although the Crown didn’t create the dog, they didn’t do anything about it. o Requires knowledge. Test of Foreseeability- actual knowledge or constructive knowledge. o Once knowledge established, must take reasonable steps to reduce hazard. Considers D’s resources, gravity and ability to remove hazard. o Subjective test rather than strict liability ^^. Remedies  Damages  Injunction- court order that requires the other party to abstain from a specific act. To receive an injunction you must show that irreparable harm will occur if the nuisance continues. They may be "perpetual", completely forbidding the activity, or "partial", for example limiting when the activity can take place  Abatements- plaintiff takes steps to minimise nuisance yourself (self-help). Issues can be trespassing as a result, if you accept abatement you submit future legal remedies.

1. What are the elements of the tort of private nuisance? Plaintiff must have proprietary title to sue, interference to enjoyment of the land and requisite knowledge of nuisance. Interference with the enjoyment of land 2. Interference with the enjoyment of the land can be tangible and intangible. Give an example of a tangible interference and an intangible interference?  Tangible- fire, tree roots, dust, flooding.  Intangible- smells, noise and offensive sights. 3. What are the different tests for tangible and intangible interference? Why do you think this distinction has been drawn? Subjective difference between the two. Tangible less subjective, whereas intangible more subjective as it comes down to the person’s own sensitivities. Evidence is different.  Tangible test- proof of actual physical damage. Physical damage by nature is considered unreasonable if it’s not trivial.  Intangible test- Substantial and unreasonable. 4. How does the court approach the assessment of whether interference is substantial or unreasonable?

Balancing the interests of each party. Defendants right to use their property vs the plaintiffs right to enjoy their own property. 5. What happened in Munro v Southern Dairies? What was the nature of the nuisance? Southern dairies creating noise and smell that interfered with plaintiff’s enjoyment of land (intangible). Also, brought upon increase of flies (tangible?). 6. What is the give and take equation? What are the factors that must be considered in applying the give and take equation to the facts at hand? Balancing interests of two competing parties and rights.  Reasonableness of use of land/utility. Eg. Might be performing important farming and the interferences it creates can’t be avoided.  Context.  Time of day.  Locality- residential areas have different standards of community compared to rural. Eg. Rural is expected to include farming noises whereas residential doesn’t. 7. What happened in Hollywood Silver Fox Farm v Emmet? What was the nature of the nuisance? What was the relevance of the intention of the defendant in discharging his gun? Intangible nuisance (sound). Defendant argued he has the right to discharge gun on his own property. However, he had an intention to fire the gun for the purpose of scaring the foxes, with no legitimate reason and therefore its unreasonable. Maliciousness by definition is unreasonable and therefore a malicious intent makes his act unreasonable....