Nuisance - Private Nuisance Flashcards
What are the two types of nuisance?
Private and public
What is private nuisance?
A use of land that affects another person’s (personal) land
Mateson v Northcote [1975] NZ 🍏 🏫 Facts
Facts: Students of Northcore College caused trouble (fireworks, litter, trespass, stole apples, etc) for the Mathesons (neighbours of the college). Mathesons wanted the reduction of the emission of the frustration of these teenagers eg through a fence
What were the main points in Mateson v Northcote [1975] NZ 🍏 🏫
- “state of affairs” “whether it be a state of affairs which continues without intermission or whether it be a state of affairs constituted by intermittent but repetitive acts which collectively, though not individually, amount to a nuisance.” – unlike trespass it can’t just happen once
- Public at large or class thereof versus a particular landholder’s interest.
- Land versus other damage.
- You can’t just say that children are dangerous!
St Helen’s Smelting Co v Tipping [1865] 💨
Facts: Noxious fumes from St Helen’s Smelting works damaged Mr Tipping’s land.
“If a man lives in a street where there are numerous shops, and a shop is opened next door to him which is carried on in a fair and reasonable way, he has no ground for complaint because to himself individually there may arise much discomfort from the trade carried on in that shop;”
“but when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade or occupation or business is a material injury, there unquestionably arises a very different consideration.”
Halsey v Esso Petroleum [1961] 🏭 ⛽
Facts: The process of creating heat heavy oil at Esso Petroleum created noxious smut, smell and noise and vibration for a local resident. The local residence was getting sick, smut (acid rain) was landing on their house, the house was moving and vibrating.
Esso Petroleum had taken steps to reduce emissions.
Points:
The court –
- Separated noise from the plant and that from the vehicles (driving past at night)
- Smut – actual physical damage
Semple v Wilson [2018] NZ HC 🌱 🕳
Facts: The plaintiffs (the Semples) and the defendants (the Wilsons). The Semples claim that branches and roots from trees growing on the Wilsons’ property are causing physical damage to their property (roots - destroying tiles and pools, shade – mildew, mould, falling leaves – clogging drains).
The overhanging trees are cut back – But the neighbour wants an arborist used – then solicitors are involved - demands been made – the court is needed
Main Points:
- “A private nuisance is an unreasonable interference with a person’s right to the use or enjoyment of an interest in land.
An action for private nuisance protects a person’s right to the “use or enjoyment of an interest in land, or of some right over or in connection with it”.
What did Clerk & Lindsell on Torts say about types of private nuisance
…His conduct only becomes a nuisance when the consequences of his act are not confined to his own land but extend to the land of his neighbour by:
1) causing an encroachment on his neighbour’s land, when it closely resembles trespass;
2) causing physical damage to his neighbour’s land or building or works or vegetation upon it, or
3) unduly interfering with bis neighbour in the comfortable and convenient enjoyment of his land
Wu v Body Corp 366611 🏙️
Facts: A Body Corporate changed the locks obstructing Mr Wo gaining access to his unit and the common areas of the building
“For an action for private nuisance to be sustained on the basis of interference with the use or enjoyment of land, some emanation of the effect of the nuisance from the defendant’s land to the plaintiff’s land is usually required.”
- There may be circumstances where the “activities on the defendant’s land are in themselves so offensive to neighbours as to constitute an actionable nuisance”. However, those circumstances will be “rare”.
What are some examples of emanation
Light, noise
What are some things that are not emanation
Rude/crude billboard, brothel
Bank of New Zealand v Greenwood ☀️
Facts: Sun glare from a new building owned by the Greenwood goes into the Bank.
Issue:
- Is glare from a building sufficient to support a claim in nuisance?
- “Transposed to the antipodes, the test is simply whether a reasonable person, living or working in the particular area, would regard the interference as unacceptable.
- “The plaintiff’s ability to shut out the nuisance cannot be more than a factor to be taken into account in considering whether the interference is al an unacceptable level.”
(not a natural emanation, because the glare is caused by the building of an artificial structure not directly from the natural sun’s glare)
- BNZ could just put up blinds to avoid the glare – this easy solution to this issue contributes to whether it is a reasonable impediment
Hunter v Canary Wharf 📺 📶
Facts: The construction of a largo building interrupted television reception. A secondary claim was for the dust from construction.
“…a man’s right to build on his land is not restricted by the fact that the presence of the building may of itself interfere with his neighbour’s enjoyment of his land.”
- May block air flow
- May block light
- May “seriously detract from the enjoyment of the land”
“It will generally arise from something emanating from the defendant’s land”
You can’t restrict how someone else uses their property for your benefit because then we would all be in nuisance to each other.
Fearn v Tate Gallery 🧑🎨
Facts: An observation desk was built at the Tate Gallery providing an unobstructed view into people’s apartments. The Tate often had things going on at night – so there was nuisance in the day and the night.
Core Principles of Private Nuisance
1) The scope of private nuisance – you can’t explicitly define what nuisance is, as it can be anything – therefore it should be considered on a case-by-case basis (no conceptual limitation)
2) ‘unreasonable’ interference
3) Interference must be substantial
4) The ordinary use of land – the viewing platform was an exceptional use – what is considered a ‘reasonable’ use of land is objective
You can do lots of things to your own property, ‘do unto your property to what you want done unto you’
Christie v Davey [1891] 🎵
Facts: Two neighbours, both musical were feuding over sound emanating from each other’s properties. After a falling out the defendants made “unusual noises” (to vex and annoy the plaintiffs)…”which interfered with the comfort of the Plaintiff’s family”.
Issue: Was the emanation of the unusual noises a nuisance.
Points
- “I will grant an injunction to restrain the Defendant from making noises in his house so as to vex or annoy the Plaintiffs. But this order is not to prevent the Defendants from using his house for the legitimate purposes of his business, nor from continuing his musical evenings as they were conducted before…”
(they can still play music BUT not make the weird noises)
Malice is not an ingredient of a nuisance claim (you don’t have to show malice), but in this case it is a contingent feature
- Malice is a way of showing unreasonable use of land (it is never reasonable to be malicious in using your land)
