Nuisance Week 3 Flashcards
What are the 4 ELEMENTS of a NUISANCE action and their AUTHORITIES?
1) Title to sue / Exclusive possession - Newington v Windeyer / Hunter v Canary Warf
• Must be in occupation or in possession and have the right to exclude others from entry - Newington v Windeyer
2) Interference with a legally recognised right - Munro v Southern Dairies Ltd OR Hunter v Canary Wharf
3) Damage suffered
• Material Damage or
• A substantial and unreasonable interference with the plaintiff’s use and enjoyment of land / rights
4) Causation
i. Did the nuisance cause the damage?; and (Authority)
ii. Was the damage reasonably foreseeable consequence of the nuisance? (Authority)
What are the 2 legally recognized rights to land?
Right of access to land (to and from the highway)
Right to use and enjoy land without undue interference - Hunter v Canary Warf Ltd
1. Includes excess smells, fumes, dust, noise and vibration
What are the 2 types of Material damage and how does liability differ in each case?
1) Material Damage may be caused by either ;
i. Misfeasance – ‘An act that causes nuisance’ – If so, defendant is strictly liable even if they took reasonable care and are not at fault.
or
ii. Non-feasance – ‘Failure to act causing nuisance’ - If so, defendant is only liable if they are at fault.
How is a substantial and unreasonable interference defined and what are the authorities?
A substantial and unreasonable interference is one that is:
Significant – not be a trifling or small inconvenience Munro v Southern Dairies Ltd
Unreasonable – Objective test (From the perspective of a neutral bystander) - Court must balance the right of the plaintiff to use and enjoy their land free of interference with the rights of the defendant
What are the 6 Factors relevant to assessing reasonableness? Include authorities
1) Locality - Munro v Southern Dairies Ltd
i. Area where the nuisance occurs can affect reasonableness (Consider if Urban/Rural/Industrial)
ii. Plaintiffs still cannot be subjected to an unreasonable increase in the amount of an interference if area changes
2) Time and duration - Munro v Southern Dairies Ltd
i. Something reasonable in the day may become a nuisance at night
3) Nature of the activities - Munro v Southern Dairies Ltd
i. Are the defendant’s activities essential to society and therefore unavoidable and reasonable?
4) Availability of alternatives - Munro v Southern Dairies Ltd
i. Could the defendant have adopted some other reasonable means of conducting their activity?
5) Abnormal sensitivity of the plaintiff -Hollywood Silver Fox Farm v Emmett*
i. Would the nuisance be an interference to a reasonable person?
ii. Usually raised when the plaintiff is known to have sensitive characteristics or is carrying out a particularly sensitive activity on their property
6) Motive (of the defendant) - Hollywood Silver Fox Farm v Emmett*
i. Malice will turn an otherwise reasonable activity into an unreasonable one
What are the 5 defenses to a Nuisance action and their authorities
1) Statutory authority (Onus of proof on defendant)
• The nuisance must be the inevitable consequence of the statutory duty or activity (ie. there must be no reasonable way that the authorised activity could have been performed without causing the nuisance)
2) Contributory negligence
• Plaintiff has failed to take reasonable care in the circumstance. Contributes to the loss or damage suffered due to the nuisance
• Not a complete defence. Only reduces damages by the amount contributed
3) Consent to act
• Plaintiff authorities the act that is the nuisance
4) Necessity
• Threat of imminent harm to person or property (land or chattels) – Reasonable apparent necessity to act
5) Defendant not at fault
• See: Defences to trespass
