Private nuisance notes PDF

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Summary

Private nuisance basic notes ...

Description

Private Nuisance:   

Protects a plaintiff’s private right to the use and enjoyment of their possession of land free from unlawful interference Protects against indirect inferences Balances competing uses of land

Defendant – the occupier of land from where the nuisance derives  May still be liable even if the nuisance has been created by someone else – If the activity is done with the occupier’s authority/consent – If the occupier knows or ought to know of the nuisance and does nothing to prevent it, such that they continue / adopt the nuisance  Occupiers can be liable for a naturally occurring nuisance if they: – Knew or ought to have known about it; and – They did nothing to end it, or did not take reasonable steps to end it

Elements 1. Plaintiff must have title to sue 2. There must be an interference with a legally recognised right attached to land 3. Plaintiff must have suffered damage - Material damage; and/or - Substantial and unreasonable interference with use and enjoyment

Title to Sue:  Plaintiff must have a legally recognised interest in the land (right to exclusive possession) and be in possession at the time of the interference  For Example: owner in possession or a legal tenant in possession  But not: a mere licensee  Mere occupation of land will not establish sufficient title even where the occupier is a member of the owner’s family.

Interference with a legally recognised right:  Has to be interference with legally recognised right  Rights attached to land as recognised by the law: – Right to support of land (lateral support from adjoining properties) – Right of access to land (to and from the highway) – Right to use and enjoy land without undue interference

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free from excessive: smells, fumes, dust, noise and vibration

note – the interference can be isolated or a continuing interference Damage:  Private nuisance is an action on the case thus damage is an essential element  Damage may take the form of either: 1. Material damage (or actual physical damage) to the plaintiff's land or things on the land  Eg: damaged garden, broken windows 2. A substantial and unreasonable interference with the plaintiff’s use and enjoyment of land / rights  Eg: cannot use driveway because neighbours keep blocking it; neighbour plays loud music late at night (1) Material Damage: Is it a misfeasance or nonfeasance?  Misfeasance (a positive act - defendant has actually done something and that has caused the interference/nuisance). If so, the “traditional rule” is that defendant is strictly liable (even if they were not at fault / if reasonable care taken)  Nonfeasance (failure to act- defendant does nothing and that’s what causes the nuisance or interference).  Eg. Failure to chop down dying tree and then it falls into neighbour’s yard. If so, the defendant is liable if at fault. (2) Interference with use and enjoyment / rights  To be actionable the interference must be both: 1. Substantial (onus on plaintiff) - Interference cannot be a trifling or small inconvenience - There must be a substantial degree of interference with the comfort and convenience of the plaintiff or with the use and enjoyment of his/her land.

2. Unreasonable (onus on defendant) - Courts use ‘Give and take’ test- recognise that everyone has rights to use and enjoy land as long as it is reasonable.

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The courts balance the competing interests of the parties to determine whether the interference with the use and enjoyment of land is unreasonable. This is so Interferences which are trivial are treated as part of the incidents of everyday life Courts also use Objective test

Factors relevant to reasonableness in Objective test:  Locality: location - Whether a nuisance is unreasonable may depend upon where it occurs - Urban? Rural? Industrial? - The nature of the locality may change over time – eg. Elderly neighbourhood slowly shifts into one with lots of uni students. Parties in a street with lots of young people would be more reasonable than a party in an elderly suburb.  Time and Duration - When: The time of day or night when the nuisance occurs - The duration and/or constant nature of the interference Nature of the activities - Are the defendant’s activities beneficial or essential to society and therefore unavoidable and reasonable? Availability of alternatives - Could the defendant have adopted some other reasonably practicable means / way of conducting their activity? Abnormal sensitivity (of plaintiff) - Would the nuisance be an interference to a reasonable person? - Usually raised when the plaintiff is sensitive or is carrying out a particularly sensitive activity on their property

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Damage – Causation The plaintiff must also establish: 1. Did the nuisance cause the damage?; and 2. Was the damage a reasonably foreseeable consequence of the nuisance?

Time limitation and onus:

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Onus of proof on plaintiff Defendant bears onus of proving:

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That the interference was reasonable Any defences

Limitation of Actions Act 1974 (Qld):

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If material damage or interference with use and enjoyment – 6 year limitation If personal injury - 3 year limitation...