Nuisance

Question 0

Define public nuisance

Answer 0

The invasion of the publics rights (the rights common to all members of the public).

Question 1

Define private nuisance

Answer 1

Private Nuisance refers to “ unlawful INTERFERENCE with a person’s use or enjoyment of land, or of some right over, or in connection with it.”
Unlawful interference is when it becomes unreasonable

(Keywords: use occupation and enjoyment of land)

Question 2

Does nuisance focus on the harmful conduct or the harmful result

Answer 2

Harmful result

Question 3

Elements to Answer a problem question

Answer 3

1. Title to Sue
2. Use and enjoyment of land
3. The nature of D’s conduct has to be unreasonable

Question 4

How to prove title to sue

2 cases

Answer 4

P must prove POSSESSION of land pursuant to some LEGAL or EQUITABLE interest. licensee (occupant with no proprietary interest) cannot, maintain an action in nuisance, unles they have an exclusive occupation

Oldman v Lawson
Hunter v Canary War

Question 5

Oldman v Lawson [1976] VR 654

Answer 5

Husband and wife sought damages for nuisance in respect to noise made by neighbours
Held: only wife was able to recover damages as she was the sole owner of the house

Question 6

• Hunter v Canary Wharf Ltd [1997] AC 655

Answer 6

P’s sued D’s for nuisance due to interference with television reception by erection of D’s tower. 3 year period of interference

Held: interference actionable.
Right to sue in both actions, no right without exclusive possession (LORD GOFF) extending the tort of nuisance to those not in possession of land would make it a ‘tort to the person’ rather than tort to land. If injury is suffered = negligence not nuisance

Question 7

Three types of nuisance

Answer 7

1. Causing encroachment on the neighbours land, short of trespass
2. Causing physical damage to the neighbours land or any building, works or vegetation on it; and
3. Unduly interfering with a neighbour in the comfortable and convenient enjoyment of his or her land

Question 8

Victoria Racing grounds v Taylor (1937) 58 CLR 479

Answer 8

D erected platform in backyard to watch horse races next door on P’s land
D allowed radio station to broadcast races
P claimed nuisance and damage through loss of economic revenue

Held: D’s conduct did not affect P’s use of he property and therefore no nuisance

Thus this case died not stand in the path of the development of such a cause of action [in privacy]

Thus

Question 9

Elements of reasonableness (6)

With cases

Answer 9

Substantial interference: 
             Munro v Southern Diaries
Locality: 
             St Helens v tipping, industrial area
Time + Duration: 
             hunter v canary wharf
Sensitivity of the plaintiff: 
             Robinson v  Kilvet
Malicious Defendant: 
              Hollywood Silver Fox Farm v Emmett

Question 10

*Racti v Hughes (1995) BPR 14, 837

Answer 10

MF:

1. movement and noise activated floodlights on D’s property
2. Surveillance equipment positioned do as to illuminate and film backyard of Ps

Held:

1. Lights: actionable as materially interfered with the ordinary comfort of human existence, damage also proven (health problems)
2. Cameras: photograph may not be actionable, the surveillance constituted a deliberate attempt to ‘snoop’ on the privacy of the neighbour, equivalent to watching and besetting, and hence actionable

Question 11

*St Helen’s Smelting v Tipping (1865) 11ER 1483

Answer 11

LOCALITY

P purchased property near D’s factory. P’s trees damaged from noxious vapours from vapours. Diminished the value of and enjoyment of Ps property

Held: material injury

1. D’s contention that the LOCALITY was devoted to such activity
2. D’s contended fair and reasonable conduct of their business
3. THE EXISTENCE AND PROOF OF MATERIAL INJURY WASS SUFFICIENT TO DISPROVE THE ABOVE, THE MATERIAL INJURY REGARDLESS OF CIRCUMSTANCES MAY CONSTITUTE AN ACTIONABLE NUISANCE

Question 12

*Munro v Southern Diaries Ltd [1955] VLR 332

What key element of unreasonable interference, especially the two elements

Answer 12

SUBSTANTIAL NUISANCE

P sought an injunction against D, for his horses created noise, smell and flies interfered with enjoyment of his property

The interference must be so substantial as to cause damage to him
Forms of interference are innumerable, though two heads of damage
1) to property
2) to comfort : ‘the loss of one night sleep’ can be substantial interference

Reasonable use of the premises by defendant not upheld

Question 13

Robinson v Kilvet (1889) 41 ChD 88

Answer 13

SENSITIVITY OF PLAINTIFF

P rented first floor of a building to manufacture products for a twine and paper business. D continued to live in the basement. Heat emanating from the basement damaged paper owned by p.
OBJECTIVE TEST - would someone ordinarily be inconvenienced?
In this case no. As it’s would not have affected an ordinary trade or paper

Question 14

Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468

Answer 14

MALICIOUS DEFENDANT

After a dispute D threatened to fire a gun on his property near a fox breeding program on Ps property
Loud notices can cause vixens to miscarry or to eat their young
D fired the gun, but argued that it was reasonable to fire a gun on his own property.

Held: nuisance, as it was a malicious act

Question 15

what is the basis of liability?

Answer 15

When nuisance arises out of MISFEASANCE (wrongful activity) liability is strict
Cases involving non-feasance (an omission to remedy an existing nuisance) liability is fault based

Question 16

Strict liability of the creator of a private nuisance
Case

Fennel v Robson Excavations

Answer 16

Fennel v Robson Excavations [1977] 2 NSWLR 486

Excavator (D) removed soil from land. Excavator left the site stable and did not interfere with the support of the adjoining (p)’s land. Excavator had reasonable grounds for believing that the owner would execute retaining works to prevent the withdrawal of support. Owner failed to do so, six months later excavation subsided into P’s land. P sued the excavator for he created the nuisance

Held: liability devolves on anyone who actively creates it on land from which it emanates even though he is not in occupation of that land.
Finding D’s actions were a cause of the damage rendered it liable for that damage notwithstanding that it may not have been the sole cause
The fact that the damage occurred after the d had left the property and could no longer abate nuisance is no defence
The failure of the landowner to construct the retaining work was not a NOVUS ACTUS INTERVENIS, (breaking of the chain) and damage was not too remote – Glass and Samuels JJA

Question 17

Liability of an occupier for a private nuisance created by a trespasser

Sedleigh-Denfield v O’Callaghan

Answer 17

Sedleigh-Denfield v O’Callaghan [1940] AC 880

D owned land on which p, a local authority had built a pipe to take water away from ditch but had not put on grate to prevent debris blocking it. D’s land became flooded due to debris.
For the D to be liable they had to have knowledge of the cause and probable effects of the nuisance. The D knew of the danger and were able to prevent it but failed to take reasonable steps

Question 18

Liability of an occupier for a private nuisance created by a licensee

Challen v McLeod Country Golf Club

Answer 18

Challen v McLeod Country Golf Club (2004) Aust Tort Reports 81-880

Licensee = those hitting the golf balls

Claim for damages as a result of golf balls being hit from adjoining golf course. The nature and extent of interference cause by intrusion of golf balls found not to constitute material or substantial interference with enjoyment. But he interference occurred over 10 years, appellant sent numerous letters setting out damage.
Held: the intrusion of golf ball constituted private nuisance, respondent had knowledge on nuisance and failed to take reasonable steps to abate it
General damages on $12 000 awarded

Question 19

Liability of a lessor for a private nuisance created be lessee

Peden v Bortolazzo

Answer 19

Peden v Bortolazzo [2006] 2 Qd R 574
P owned a motel adjacent to residential flats owned by D. P contended that D was liable for nuisance created by TENANTS of one of the appellants flats to whom D had leased under a lease with express prohibition on the tenants creating a nuisance

Held: general rule - LESSOR IS ORDINARILY NOT LIABLE FOR A NUISANCE CREATED BY A TENANT AND IS UNDER NO OBLIGATION TO CONTROL TENANT TO PREVENT DAMAGE TO A THIRD PARTY

• as lease contained express prohibition of nuisance, the person to be sued in the nuisance is the tenant and the landlord cannot be held liable; liability is only incurred if the landlord has authorised the tenant to commit nuisance
• no duty of care owed by the landlord to the neighbour in selection of tenants

Question 20

Liability of an occupier for a private nuisance arising from a state of affairs or state of nature

Goldman v Hargrave

Answer 20

Goldman v Hargrave [1967] 1 AC 645

Tree catching fire on occupier D’s land not extinguished properly, relit and damaged Neighbour P’s land

“The occupier has a general duty of care to his neighbour in relation to hazards including fire, arising from natural causes of from an act of God. The existence of the duty is based upon knowledge of the hazard, ability to foresee consequence of not checking to remove it, and he ability to abate it. THE STANDARD OF CARE required of an occupier is what is reasonable to expect of him in his individual circumstances”

Question 21

What defences are available?

Answer 21

Statutory Authority

“Coming to the nuisance” = no defence

Question 22

Stat Authority

Allen v Gulf Oil Refining

Answer 22

Allen v Gulf Oil Refining [1981] AC 1001

P against D for smell noise and vibration caused by the refinery
D’s relied on stat authorit, deeming nuisance inevitable

Held: stat authority indicated that an y inevitable nuisance caused by the construction or operation of the refinery was to be borne by the p without compensation – such stat authority carries an immunity from actions of nuisance
The immunity was conditional for all conduct to be reasonable regard and care for the interests of other persons
Ps injury was veto such immunity

Question 23

REMEDIES?

What stat authority?

Answer 23

An action for damages
An injunction (continuing nuisance)
Self-help remedy of abatement

S68 Supreme Court act 1970 (NSW)

Question 24

Utility of S68 Supreme Court act 1970 (NSW)

Answer 24

Where the court has power to grant an injunction, the court May award damages in addition to or substitution for the injunction

Question 25

Working rule of Shelfer v City of London Electric Lighting?

3 elements

Answer 25

An award of damages in substitution for an injunction may be appropriate where:

1) the interference with the plaintiff’s legal rights is small;
2) the interference is capable of bing compensated by small money payment; and
3) it would be oppressive to the defendant to grant an injunction