The Tort of Nuisance PDF

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Notes on the tort of Nuisance from lecture and textbook material...

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NUISANCE

Private nuisance

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Tort

Public nuisance

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Common law crime (R v Rimmington [2006] 1 AC 459)

Same set of circumstances may give rise to both (Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683)

Unlawful interference with a person's use of enjoyment of land, or of some right over, or in connexion with it (Hargrave v Goldman (1963) 110 CLR 60).

State of affairs that is often continuous or recurrent. (Hargrave v Goldman (1963))

Need not be direct or physical interference:

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Noise (Seidler v Luna Park Reserve Trust (unreported, NSWSC, Hodgson J, 21 September 1995)

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Offensive smells and flies (Munro v Southern Dairies ltd [1995] VLR 332)

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Air pollution (Halsey v Esso)

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Presence of a brothel near residences (Thompson-schwab v costaki [1956] 1 All ER 652)

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Excavation causing subsidence of land (Fennell v Robson Excavations [1977] 2 NSWLR 486)

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Overflow of water (Sedleigh-Denfield v O’callaghan [1940] AC at 880)

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Allowing fire to spread to neighbouring property (Hargrave v goldman)

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Damage by tree roots (Proprietors strata plan v cowell (1989) 24 NSWLR 478)

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Picketing (dollar sweets v federated confections [1986] VR 383)

Nuisance is not actionable per se and requires proof of damage, but that damage includes not only actual damage (Walsh v Ervin [1952] VLR 361) to property but also intangible damage, being the unreasonable interference with enjoyment of land. (Oldham v Lawson (No 1) [1976] VR 654 / Barbagallo v J & F Catelen [1986] 1 Qd R 245)

Mere licensee who was an occupant without any proprietary interest in the property could not maintain an action in nuisance (Oldham v lawson 1976)

Where a license has exclusive occupation and an equitable right to remain in possession, then he or she will have standing to sue. (Inwards v Baker 1965)

Plaintiff must be able to demonstrate unreasonable interference with their own property rather than with the property of some other person (Sutherland Shire Council v Beker 2006)

The law of nuisance will only protect certain rights associated with the use and enjoyment of property (victoria park racing and recreation grounds v taylor (1937))

What constitutes a nuisance: Is there an unreasonable interference with the plaintiff's use and enjoyment of the land?

Robson v Leischke (2008) 72 NSWLR 98 Three kinds of interference: a. Causing encroachment on the neighbours land, short of trespass b. Causing physical damage to the neighbour’s land or any building, works or vegetation on it; and c. Unduly interfering with a neighbour in the comfortable and convenient enjoyment of his or her land

Nuisance depends on whether the use of land was reasonable in all the circumstances, not on whether the defendant took reasonable care to avoid creating the nuisance. (Cambridge Water Co v Easter Counties Leather plc [1994] 2 AC 264)

DISTINCTION BETWEEN ‘MATERIAL DAMAGE’ AND INTERFERENCE WITH ENJOYMENT’

In order to determine whether the interference is unreasonable or not: 

Whether the interference is substantial not merely trivial (Esso).

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Requirement for ‘give and take’ between neighbours (Bamford v Turnley (1862)

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The locality (St Helen’s Smelting Co v Tipping (1865)

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The time and duration of the interference (Haddon v Lynch [1911]

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Where the plaintiff is unusually sensitive

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Where the defendant acted with malice

Substantial Test: Walter v Selfe (1851) G & SM 315 More than fanciful… an inconvenience materially interfering with the ordinary comfort or physically of human existence.

Must be a ‘state of affairs’ (Bolton v Stone [1950] 1 KB 201) created, adopted or continued by one person which, to a substantial degree, harms another person in his enjoyment of his land. (Hargrave v Goldman (1963))

Onus v telstra [2011] mere presence of a structure may constitute a nuisance.

Southwark London Borough Council v Mills [2001] 1 AC 1: the acts complained of must (i) ‘be necessary for the common and ordinary use and occupation of land and houses’ and (ii) must be ‘conveniently done’. Where those two conditions are satisfied, no action will lie.

Duration need not be long (Harris v Carnegies pty ltd [1917] VLR 95)

Where a defendant acts maliciously, he is liable in nuisance even where the plaintiff is unusually sensitive (Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468)

Actions by a defendant in retaliation for a nuisance created by the plaintiff may themselves be a nuisance (Stoakes v Brydges [1958] QWN 5)

Creator of the nuisance is liable though the creator need not have any property interest in the property from which the nuisance emanates. (Fennell v RObson Excavations [1977] 2 NSWLR 486

A person who authorizes the creation of a nuisance will be liable. (Harris v James (1876) 45 Lj QB 545 / tetley v chitty [1986] 1 All ER 663

An occupier of a premises who hires the premises out for a particular purpose, which involves a special danger of nuisance, is liable for any nuisance caused by the hire in carrying out that purpose (De Jager v Payneham (1984)

An occupore who adopts or continues a nuisance will be liable even though not to creator of then nuisance (Sedleigh-Denfield v O’callaghan [1940])

Public Nuisance:

Must be so widespread in its range that it would be unreasonable to expect one individual to take action against it alone. But rather by the Attorney General on behalf of all citizens.

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Obstruction of a highway (Walsh v Ervin [1952])

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Obstructing a waterway (York Bros v Commissioner of Main Roads [1983])

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Polluting a river (r V Medley (1834)

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Discharging oil into the sea in circumstances in which likely to be carried on shore (southport corporation v esso petroleum [1954)

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Picketing premises as to block entry (Animal liberation v Gasser [1991])

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Telephone call to falsely advice of a bomb in building (R v Madden [1975])

A private individual does not have standing to sue in respect of a public nuisance unless it can be shown that he or she has suffered particular damage which is difference from (benjamin v storr (1874) or greater than that suffered by the public at large (Walsh v Ervin)

A plaintiff need not have any proprietary interest in the area affected by a public nuisance in order to sue provided there has been a particular damage (Castle v St Augustine’s links ltd (1922))

Substantial and unreasonable interference is not a broken down vehicle (maitland v raisbeck [1944] or one involved in a collision (white v humphries (1984) obstructs part of a highway for a limited time.

Defences to public and private nuisance:

Prescription is a defence to a claim in private only. Which allows in limited circumstances, an easement by prescription to be gained after the elapse of a 20year period or continuous use. A prescriptive right atr common law will only be possible where the use amounting to nuisance was with the knowledge of the owner of the property after and chose not to pervert the use, though it would have been actionable or preventable (Miller v Jackson [1977]; Sturges v Bridgman (1879). Interference must have been constant and uniform over the period (Lemmon v Webb [1894])

Consent of the plaintiff: (Kiddle v City Business properties 1942)

Although no defence that the plaintiff has ‘come to the nuisance’ (Sturges v Bridgman 1897; Miller v Jackson 1977)

Plaintiffs not expected to alter ordinary life in order to ‘avoid’ nuisance (Lester-travers v city of frankston 1970)

Fault of the defendant: Nuisance is not a strict liability tort and the plaintiff has to prove faul;t on the defendant's part. If Nuisance created by a third party and defendant has no knowledge and ought not to have now than they cannot be held liable. (Montant Hotels v Fasson 1987)

Statutory authorisation: Applied were a statutory authority, expressley, or impliedly, creates a nuisance in the performance of an activity required or authorised by statute (Nielsen v Brisbane Tramways (1912))

Also applies to acts done pursuant to delegated legislation (Gillingham Borough Council v Medway [1993])

Where the defendants activity is authorised by a statue, the defendant will not be liable for interference which is the inevitable consequence of that activity, provided the interference could not have been avoided by the use of reasonable case (Manchester corp v Farnworth [1930])

Defence must prove they acted reasonably. Any activity which exceeds the authority conferred by the statue will be unreasonable (Perth corp v halle (1911) and will have to estale no alternative means of doing the authorised act so as to avoid the nuisance (Melaleuca estate v port stephens council [2006])

Remedies for nuisance:

Abatement: The summary removal or remedying of a nuisance by the person injured without having to recourse to legal proceedings (Farley & Lewers v Attorney General (NSW) (1962))

Abatement of a public nuisance is only available to those persons who suffer a particular damage and above that suffered by the general public (Bagshaw v Buxton 1875)

May be used as a defence to trespass by the creator of a nuisance so long as the trespass was reasonable and necessary to avoid abatement in a situation of emergency (Burton v Winters [1993])

Generally the law won't allow the cost of an abatement to be recovered from the creator of a nuisance (young v wheeler (1987) unless the abatement constitutes a reasonable step in mitigation of damages arising from the nuisance and does not involve trespass upon the defendant's property (proprietors strata plan v cowell 1989)

Damages: A plaintiff may claim damages with or without injunctive relief for a nuisance. Damages will be awarded for the actual damage caused by the nuisance as well as past intangible interference with the enjoyment of property (museth v windsor country gold club [2016])

Damages are restricted to foreseeable loss (the wagon mound (no 2)( [1967])

Exemplary damages are available in a nuisance claim at common law (walsh v ervin [1952]). In some circumstances where an injunction is refused, damages for future interference may be awarded (shelfer v city of london electric lighting co [1895])

Injunction: An equitable remedy and is discretionary (miller v jackson [1977]). May be interlocutory (Australian coarse grant pool v barley marketing beard (1982)) or permanent. (L’Estrange v Brisbane gas co [1928]))

Even where the defendants actions of property use constitute a nuisance, the court may decline to award an injunction is considering the interference to be insubstantial (Baulkham Hills Shire Council v AV Walsh [1968]; Abbott v Arcus (1948))...