Private nuisance Flashcards
Nuisance
Nuisance is a property-based tort. The person who may bring a claim for nuisance is the occupier of that land. By contrast with trespass, a person seeking an action in nuisance does not have to prove that the interference was direct or intentional, only that it was an unreasonable interference. Nuisance predominantly deals with indirect harm. Nuisance is a more subtle interference with the enjoyment of land which does not disturb the owner’s right to possession of land.
Nature of interests protected
- Protection against physical damage (Goldman v Hargrave)
- Protection of the enjoyment of land which might be interfered with by noise or smells
- Protection of ‘support of land in its natural state’ (Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board).
Elements of private nuisance
P has an interest in land (right to exclusive possession)
D is the creator, adopter or authoriser of the nuisance
Interference with the use or enjoyment of the land
Which is substantial and unreasonable
P has an interest in land (right to exclusive possession)
Hunter v Canary Wharf
Principle: a right of exclusive possession of land is necessary to entitle a person to sue in private nuisance
e.g. a spouse cannot sue where they do not have exclusive possession of the land.
Facts: P was a group f local people. Moreover they were not restricted to householders who have the exclusive right to possess the places where they live, whether as freeholders or tenants, or even as licensees. They included people with whom householders share their homes, for example as wives or husbands or partners, or as children or other relatives. All of these people claimed damages in private nuisance, by reason of interference with their television viewing or by reason of excessive dust.
D is the creator, adopter or authoriser of the nuisance
There is no need for D to have any interest in land.
Creator:
Fennell v Robson Excavations Pty Ltd.
Principle: Anyone who is themselves responsible for creating a nuisance can be sued, regardless of whether they were at fault in doing so or had any interest in the land from which the nuisance emanated
Facts: Robson was hired by a developer to build a mud bank on property under its control, on the understanding that a retaining wall would then be built to prevent slippage. However, the developer filed for bankruptcy before the wall was built and, during a period of heavy rain, the mud wall collapsed, threatening the foundational stability of a neighbouring house (owned by Fennell). Since the developer was bankrupt, Fennell brought an action against Robson on the basis that, although it was not, and never had been, in possession of the land, and was not at fault in constructing the mud well, nevertheless it was the creator of the nuisance.
Adopter:
Sedleigh-Denfield v O’Callaghan
Principle: A person who adopts or continues a nuisance on land under their control may also be liable for nuisance. T
Facts: Workers employed by a local council trespassed onto the defendant’s land in order to lay a drain from a neighbouring property. The workers installed grating over the drain but did so negligently, as a result of which leaves and other debris started to collect in the drain on the defendant’s land. The defendant became aware of the drain on his land and started to make use of it himself. He did not sue the council in trespass to land. Eventually, the debris collecting in the grate blocked the drain, causing flooding on another (third) neighbouring property belonging to the plaintiff. The plaintiff sued the defendant in private nuisance.
The House of Lords held that the defendant could be sued, despite the fact that he did not create the nuisance. However, it clarified that, in these situations, some kind of fault is required for liability to arise.
Authoriser:
Peden v Bortolazzo
Principle: A person can be liable for a nuisance created by other persons.
Facts: P (Peden) was the occupier of premises used as a motel. D (Celina Bortalazzo) was the owner of adjacent property, on which there was a house which has been divided into two residential flats. It was alleged that tenants in one of the flats were regularly engaged in the making of excessive noise, smoke and unruly and drunken behaviour at all hours of the day, which was interfering with the profitability of the plaintiff’s business. The tenants’ lease contained an express prohibition on their committing any nuisance. The plaintiff sued the defendant for the nuisance. In the result, the Court found that the defendant had not expressly authorised the tenants to create a nuisance or that a nuisance was certain to result from the residential lease to the tenants and therefore dismissed the plaintiff’s claim.
Interference with the use or enjoyment of the land
Two types of interference:
1. Interference with amenity value
2. Material damage
A person’s interest in the ‘use and enjoyment’ of land extends beyond the assurance of security against physical interferences.
Hunter v Canary Wharf
More is required than the mere presence of a neighbouring building to give rise to an actionable private nuisance. Indeed, for an action in private nuisance to lie in respect of interference with the plaintiff’s enjoyment of his land, it will generally arise from something emanating from the defendant’s land. Such an emanation may take many forms – noise, dirt, fumes, a noxious smell, vibrations, and suchlike. Occasionally, activities on the defendant’s land are in themselves so offensive to neighbours as to constitute an actionable nuisance.
There is a debate, flowing from Hunter, as to whether causing a person personal injury upon their land can ever be a private nuisance. Hunter has often been taken to suggest not, owing to its insistence that nuisance is an interference with land rights, not with the person. Nonetheless, the view stated is that, provided that there is an interference with the plaintiff’s use and enjoyment of her land sufficient to constitute a nuisance, there is no reason why she cannot use for personal injuries she has suffered in consequence of the interference. An analogous case tending to support this conclusion is TCN Channel 9 v Anning, in which P claimed to have suffered mental injuries as a result of a television crew trespassing on his land. The court accepted in principle(albeit obiter) that P who suffers personal injury as a result of an intentional trespass to land (caused, for example, by a stalker) can recover for the injury.
Thompson-Schwab v Costaki
Principle: existence of a brothel near a residence could constitute a nuisance.
Laws v Florinplace
Principle: presence of a bookshop selling hardcore pornography coud constitute a nuisance.
An example of an interest that is not protected in Australian law, at least directly, is privacy. See, eg, Victoria Park Racing v Taylor (1936) 58
Principle: a landowner has no right not be be observed in the use of premises, even if they are used for commercial purposes that may be injured by the observation.
Facts: D broadcast descriptions of races taking place on P’s land, attendance at races and profits fell.
Which is substantial and unreasonable
Substantial:
Walter v Selfe
Principle: Since nuisance is an action on the case, which requires ‘damage’, the effect of the nuisance on the plaintiff’s use and enjoyment of her land, or the actual material damage to that land, must be more than trivial to be actionable.
‘to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness …as an inconvenience materially interfering with the ordinary comfort physically of human existence’
Facts: P (Walter) sought an injunction for nuisance in respect of the smell and cinders that resulted from the defendant (Selfe) making bricks in a brick kiln on a strip of land that had once been a garden and a field. The kiln was built on land adjoining the plaintiff’s house. P alleged that the smell and cinders from the kiln affected the health of the occupier of P’s house and caused damage to his property, trees and plantations. P succeeded in obtaining an injunction for private nuisance.
Unreasonable:
balancing factors
Hunter v Canary Wharf
ELEMENT: P HAS AN INTEREST IN LAND (RIGHT OF EXCLUSIVE POSSESSION)
Principle: a right of exclusive possession of land is necessary to entitle a person to sue in private nuisance
e.g. a spouse cannot sue where they do not have exclusive possession of the land.
Facts: P was a group of local people. Moreover they were not restricted to householders who have the exclusive right to possess the places where they live, whether as freeholders or tenants, or even as licensees. They included people with whom householders share their homes, for example as wives or husbands or partners, or as children or other relatives. All of these people claimed damages in private nuisance, by reason of interference with their television viewing or by reason of excessive dust.
Fennell v Robson Excavations Pty Ltd.
PRINCIPLE: D IS THE CREATOR OF THE NUISANCE:
Principle: Anyone who is themselves responsible for creating a nuisance can be sued, regardless of whether they were at fault in doing so or had any interest in the land from which the nuisance emanated
Facts: Robson was hired by a developer to build a mud bank on property under its control, on the understanding that a retaining wall would then be built to prevent slippage. However, the developer filed for bankruptcy before the wall was built and, during a period of heavy rain, the mud wall collapsed, threatening the foundational stability of a neighbouring house (owned by Fennell). Since the developer was bankrupt, Fennell brought an action against Robson on the basis that, although it was not, and never had been, in possession of the land, and was not at fault in constructing the mud well, nevertheless it was the creator of the nuisance.
Sedleigh-Denfield v O’Callaghan
PRINCIPLE D IS THE ADOPTER OF THE NUISANCE:
Principle: A person who adopts or continues a nuisance on land under their control may also be liable for nuisance. T
Facts: Workers employed by a local council trespassed onto the defendant’s land in order to lay a drain from a neighbouring property. The workers installed grating over the drain but did so negligently, as a result of which leaves and other debris started to collect in the drain on the defendant’s land. The defendant became aware of the drain on his land and started to make use of it himself. He did not sue the council in trespass to land. Eventually, the debris collecting in the grate blocked the drain, causing flooding on another (third) neighbouring property belonging to the plaintiff. The plaintiff sued the defendant in private nuisance.
The House of Lords held that the defendant could be sued, despite the fact that he did not create the nuisance. However, it clarified that, in these situations, some kind of fault is required for liability to arise.
Peden v Bortolazzo
PRINCIPLE: D IS THE AUTHORISER OF THE NUISANCE:
Principle: A person can be liable for a nuisance created by other persons.
Facts: P (Peden) was the occupier of premises used as a motel. D (Celina Bortalazzo) was the owner of adjacent property, on which there was a house which has been divided into two residential flats. It was alleged that tenants in one of the flats were regularly engaged in the making of excessive noise, smoke and unruly and drunken behaviour at all hours of the day, which was interfering with the profitability of the plaintiff’s business. The tenants’ lease contained an express prohibition on their committing any nuisance. The plaintiff sued the defendant for the nuisance.
Types of interference
Two types of interference:
1. Interference with amenity value
2. Material damage
A person’s interest in the ‘use and enjoyment’ of land extends beyond the assurance of security against physical interferences.
Amenity: can’t enjoy house the way you’d like to
Hunter v Canary Wharf
ELEMENT: INTERFERENCE WITH AMENITY VALUE
Principle: more is required than the mere presence of a neighbouring building to give rise to an actionable private nuisance. Indeed, for an action in private nuisance to lie in respect of interference with the plaintiff’s enjoyment of his land, it will generally arise from something emanating from the defendant’s land. Such an emanation may take many forms – noise, dirt, fumes, a noxious smell, vibrations, and suchlike. Occasionally, activities on the defendant’s land are in themselves so offensive to neighbours as to constitute an actionable nuisance.
Facts: It was considered whether and when electrical interference with television reception can count as an interference with the use and enjoyment of land.
There is a debate, flowing from Hunter, as to whether causing a person personal injury upon their land can ever be a private nuisance. Hunter has often been taken to suggest not, owing to its insistence that nuisance is an interference with land rights, not with the person. Nonetheless, the view stated is that, provided that there is an interference with the plaintiff’s use and enjoyment of her land sufficient to constitute a nuisance, there is no reason why she cannot use for personal injuries she has suffered in consequence of the interference. An analogous case tending to support this conclusion is TCN Channel 9 v Anning, in which P claimed to have suffered mental injuries as a result of a television crew trespassing on his land. The court accepted in principle(albeit obiter) that P who suffers personal injury as a result of an intentional trespass to land (caused, for example, by a stalker) can recover for the injury.
Thompson-Schwab v Costaki
ELEMENT: INTERFERENCE WITH AMENITY VALUE
Principle: existence of a brothel near a residence could constitute a nuisance.
Laws v Florinplace
ELEMENT: INTERFERENCE WITH AMENITY VALUE
Principle: presence of a bookshop selling hardcore pornography could constitute a nuisance.
Victoria Park Racing v Taylor
ELEMENT: INTERFERENCE WITH AMENITY VALUE
Principle: An example of an interest that is not protected in Australian law, at least directly, is privacy.
A landowner has no right not be be observed in the use of premises, even if they are used for commercial purposes that may be injured by the observation.
Facts: D broadcast descriptions of races taking place on P’s land, attendance at races and profits fell.
Halsey v Esso Petroleum
ELEMENT: MATERIAL DAMAGE
Principle: It was held that as long as the damage is not trivial, liability for nuisance will be established by proof of damage. Serious damage is likely to be viewed by the courts as an unreasonable interference.
Facts: D had an oil storage and issuing depot. On the premises was a boiler house out of which emerged two chimneys. These two chimneys disgorged acid s which contained sulfuric acid. D ran a night shift from 10pm - 6am and the noise from the depot was very high. Oil tankers came and went all night. P lived in a house in a residential neighbourhood adjacent to the depot. Acid smuts from the chimneys damaged P’s clothing which was hanging from the clothesline and his car on the footpath.
Walter v Selfe
ELEMENT: SUBSTANTIAL:
Principle: Since nuisance is an action on the case, which requires ‘damage’, the effect of the nuisance on the plaintiff’s use and enjoyment of her land, or the actual material damage to that land, must be more than trivial to be actionable.
‘to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness …as an inconvenience materially interfering with the ordinary comfort physically of human existence’
Facts: P (Walter) sought an injunction for nuisance in respect of the smell and cinders that resulted from the defendant (Selfe) making bricks in a brick kiln on a strip of land that had once been a garden and a field. The kiln was built on land adjoining the plaintiff’s house. P alleged that the smell and cinders from the kiln affected the health of the occupier of P’s house and caused damage to his property, trees and plantations. P succeeded in obtaining an injunction for private nuisance.
St Helen’s Smelting v Tipping
ELEMENT: UNREASONABLE:
P: Where material damage to property occurs, it is prima facie unreasonable regardless of location or any other factual circumstance, and an action should succeed unless the defendant can prove that the damage was reasonable in the circumstances (note here that ‘reasonable use’ is a specific defence to private nuisance). Why should I have to prove that it was wrong of you to smash my fence, for example, regardless of where I live? In respect of this type of interference, then, private nuisance is similar to trespass to land in the sense that the plaintiff need merely prove that D caused the damage.
In contrast, where the interference is merely with the use and enjoyment of land, the plaintiff must prove that interference was unreasonable. The answer to this question involves ‘balancing’ the plaintiff’s interest in the enjoyment of their land with the defendant’s interest in carrying out the act creating the alleged nuisance (the rule of ‘give and take’).
Kennaway v Thompson
ELEMENT: UNREASONABLE
BALANCING FACTOR: Give and take
Principle: there is a need for ‘give and take’ when considering whether interference with the use and enjoyment of land is ‘unreasonable’ for the purposes of private nuisance.
‘The question is whether the neighbour is using his property reasonably, having regard to the fact that he has a neighbour. The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way and there must be a measure of give and take, live and let live.’
Facts: P, Kennaway, owned a house on land adjoining a lake on which a motor boat racing club conducted regular races. She sued for an injunction and damages in an action for nuisance and succeeded on appeal.
Clary v The Principal and Council of the Womens College
ELEMENT: UNREASONABLE
BALANCING FACTOR: Give and take
‘But the noises made by the students were only noises of the kind that are incidental to the occupation of premises as a dwelling. They consisted of noises made by such acts as walking about, scraping chairs along the floor, having baths, talking and laughing, and preparing for bed. A landlord who lets a portion of a building for the accommodation of university students can only reasonably expect that such students will keep late hours and in the course of doing so will make such noises’
Robinson v Kilvert
ELEMENT: UNREASONABLE
BALANCING FACTOR: The sensitive plaintiff
Principle: This was held not to be an unreasonable use of land to do something that would not inconvenience the ordinary person.
Facts: The claimant paper manufacturer sought an injunction to prevent his landlord from heating the property to levels that interfered with his business.
McKinnon Industries v Walke
ELEMENT: UNREASONABLE
BALANCING FACTOR: The sensitive plaintiff
Principle: Since the damage was unreasonable, it did not matter that the plants in question happened to be worth more than ordinary plants.
Facts: Emissions from the defendant’s factory damaged valuable orchids belonging to the plaintiff, which was prima facie unreasonable.
Hill v Higgins
ELEMENT: UNREASONABLE
BALANCING FACTOR: The sensitive plaintiff
Facts: D’s grass was overgrown, requiring no more than a few minutes of maintenance. P’s claims of nuisance were held to be a gross overreaction
Halsey v Esso Petroleum Co Ltd D
ELEMENT: UNREASONABLE
BALANCING FACTOR: Type of harm
Principle: As long as the damage is not trivial, liability for nuisance will be established by proof of damage. Serious damage is likely to be viewed by the courts as an unreasonable interference.
Facts: E’s oils storage and issuing depot emitted smut. The smuts damaged P’s clothing which was hanging on a clothesline, and his car which was parked on the street.
Munro v Southern Daisies D
ELEMENT: UNREASONABLE
BALANCING FACTOR: Duration, timing and location
Duration
Principle: the loss of a single night’s sleep from the noise of the dairy would amount to a substantial interference”.
Facts: D used horses as part of their dairy. P complained the horses were noisy and their faeces attracted flies. The above facts amounted to nuisance “
Seidler v Luna Park Reserve Trust
ELEMENT: UNREASONABLE
BALANCING FACTOR: Duration, timing and location
Timing
Principle: ‘a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society; or more correctly in a particular society.’
Facts: The case involved noise emanating from a rollercoaster in the iconic Luna Park in Sydney, which was bothering local residents:
It seems to me that, even having regard to all the locality considerations, residents should have respite from the noise levels presently produced on their balconies on at least one whole day each weekend and one whole day each week; and that commercial occupants should not be subject to the present internal noise levels during weekdays and evenings (except from Friday evenings).
Pittar v Alvarez
ELEMENT: UNREASONABLE
BALANCING FACTOR: Duration, timing and location
Location
Principle: P’s inconvenience was no more than could be reasonably expected given the locality.
Facts: P alleged smoke and soot was a nuisance from D’s use of an ordinary fireplace.
Challen v McLeod Country Golf Club
ELEMENT: UNREASONABLE
BALANCING FACTOR: P moving to the nuisance
Principle: It was not argued before the court that P going to the nuisance is a defence, suggesting it is accepted as settled principle that ‘moving to the nuisance’ is no defence.
Facts: P purchased land next to a golf course, after which stray golf balls caused damage to her house. An action in nuisance was successful, even two or three balls a week with the risk of property harm would be nuisance.
Hollywood Silver Fox Farm v Emmet
ELEMENT: UNREASONABLE
BALANCING FACTOR: Purpose of the alleged nuisance
Principle: Put simply, conduct that is not otherwise unreasonable might be rendered unreasonable if carried out for a malicious purpose.
Facts: P owned rural land on which he ran a business breeding silver foxes. Such foxes are especially sensitive to noise in the breeding season and will not breed if unduly disturbed. D got his son to discharge his shotgun on the boundaries of his own land, close to where the plaintiff’s foxes were penned. The evidence suggested that the defendant did this not for the purposes of hunting on his own land, but in order to disrupt the plaintiff’s business. Shooting is a normal activity in a rural area. The Court nonetheless held the shooting to be a nuisance and granted both damages and an injunction to restrain shooting in the breeding season.
Christie v Davey
ELEMENT: UNREASONABLE
BALANCING FACTOR: Purpose of the alleged nuisance
Facts: D’s ongoing behaviour (music lessons, musical evenings etc) was deliberate with a purpose to annoy and vex P.
Balancing factors
- The rule of ‘Give and Take’ (or ‘Calculus of Nuisance’)
- Locality
- Duration, time, frequency and extent
- Hypersensitivity
- Motive
Andrea v Selfridge
Balancing factor: time and duration When one is dealing with temporary operations such as demolition and rebuilding, everybody has to put up with a certain degree of discomfort because operations like that cannot be carried on without a certain degree of noise and dust
Shoreham by sea
ELEMENT: UNREASONABLE
BALANCING FACTOR: Locality
Principle: the inhabitants of an industrial area cannot expect the fragrances of an orchard
Gillingham Borough Council v Medway Dock
ELEMENT: UNREASONABLE
BALANCING FACTOR: Locality
Principle: If planning permission is granted in an area for several industrial or business projects, this may eventually come to change the nature of the area from a residential one to an industrial one and domestic landowners in the area may consequently have to put up with more noise. The chance of local residents succeeding in claims for nuisance reduce accordingly.
Lawrence and another v Fen Tigers Ltd
Principle: The grant of planning permission does not automatically provide a defence to a nuisance claim, but its terms are relevant to assessing the reasonableness of the use.
The court considered the character of the locality and the defendant’s activities in determining whether a nuisance existed.
The court also considered the possibility of acquiring a prescriptive right to cause a nuisance, but found that the defendants had not established such a right in this case.
Facts: The plaintiffs claimed that the noise from the stadium and track activities constituted a nuisance, while the defendants argued that planning permission for the stadium and the longevity of the activities created a prescriptive right or that the character of the locality had changed. It was made subject to conditions regarding the frequency and times of races, but contained no conditions regarding noise levels
Accordingly, I consider that the mere fact that the activity which is said to give rise to the nuisance has the benefit of a planning permission is normally of no assistance to the defendant in a claim brought by a neighbour who contends that the activity cause a nuisance to her land in the form of noise or other loss of amenity…
However, there will be occasions when the terms of a planning permission could be of some relevance in a nuisance case. Thus, the fact that the planning authority takes the view that noisy activity is acceptable after 8.30 am, or if it is limited to a certain decibel level, in a particular locality, may be of real value … in a case where the claimant is contending that the activity gives rise to a nuisance if it starts before 9.30 am, or is at or below the permitted decibel level.
‘Give and Take’ (or ‘Calculus of Nuisance’)
Kennaway v Thompson
Principle: there is a need for ‘give and take’ when considering whether interference with the use and enjoyment of land is ‘unreasonable’ for the purposes of private nuisance.
‘The question is whether the neighbour is using his property reasonably, having regard to the fact that he has a neighbour. The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way and there must be a measure of give and take, live and let live.’
Clary v The Principal and Council of the Womens College
A landlord who lets a portion of a building for the accommodation of university students can only reasonably expect that such students will keep late hours and in the course of doing so will make such noises’
Locality
Gillingham Borough Council v Medway Dock
Principle: If planning permission is granted in an area for several industrial or business projects, this may eventually come to change the nature of the area from a residential one to an industrial one and domestic landowners in the area may consequently have to put up with more noise. The chance of local residents succeeding in claims for nuisance reduce accordingly.
Fen Tigers
Principle: The grant of planning permission does not automatically provide a defense to a nuisance claim, but its terms are relevant to assessing the reasonableness of the use.
Duration, time, frequency and extent
Duration
Munro v Southern Daisies D
Principle: the loss of a single night’s sleep from the noise of the dairy would amount to a substantial interference”.
Facts: D used horses as part of their dairy. P complained the horses were noisy and their faeces attracted flies. The above facts amounted to nuisance “
Timing
Seidler v Luna Park Reserve Trust
Principle: ‘a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society; or more correctly in a particular society.’
Location
Pittar v Alvarez
Principle: P’s inconvenience was no more than could be reasonably expected given the locality.
Facts: P alleged smoke and soot was a nuisance from D’s use of an ordinary fireplace.
Hypersensitivity
Robinson v Kilvert
Principle: This was held not to be an unreasonable use of land to do something that would not inconvenience the ordinary person.
Facts: The claimant paper manufacturer sought an injunction to prevent his landlord from heating the property to levels that interfered with his business.
McKinnon Industries v Walke
Principle: Since the damage was unreasonable, it did not matter that the plants in question happened to be worth more than ordinary plants.
Facts: Emissions from the defendant’s factory damaged valuable orchids belonging to the plaintiff, which was prima facie unreasonable.
Motive
Hollywood Silver Fox Farm v Emmet
Facts: P owned rural land on which he ran a business breeding silver foxes. Such foxes are especially sensitive to noise in the breeding season and will not breed if unduly disturbed. D got his son to discharge his shotgun on the boundaries of his own land, close to where the plaintiff’s foxes were penned. The evidence suggested that the defendant did this not for the purposes of hunting on his own land, but in order to disrupt the plaintiff’s business. Shooting is a normal activity in a rural area. The Court nonetheless held the shooting to be a nuisance and granted both damages and an injunction to restrain shooting in the breeding season.
Christie v Davey
Facts:D’s ongoing behaviour (music lessons, musical evenings etc) was deliberate with a purpose to annoy and vex P. the noise constituted a nuisance.
Defences to nuisance
Statutory authority
Reasonable use/user
Moving to the nuisance
Statutory authority
Planning permission might be taken into account in ascertaining the nature of the locality in which a nuisance is alleged to have occurred. However, a license to carry out a particular activity might also provide a defence if it clearly authorises the nuisance in question. In answering this question, however, the courts will assume — as always when private rights are at stake — that otherwise tortious conduct is not meant to be authorised unless the legislature uses clear and unambiguous language to that effect.
A good example of this principle being applied in the context of a private nuisance is Lester-Travers v City of Frankston (1970) VR 2. In this case, a local council that operated a municipal golf links was sued in private nuisance by a local resident who alleged that golfers were hitting golf balls into her garden and damaging her property. The Council attempted to defend itself on the basis that the nuisance was authorised by the Local Government Act 1958 (Vic). This defence failed on the basis that the Act merely authorised the Council to operate the links; it said nothing at all about authorising a nuisance. Anderson J explained that:
Whether or not the legislature has authorised interference with private rights will depend upon the construction of the statute under which the powers are exercised … and the burden of proving there is statutory authority to do the act complained of rests upon the party claiming such right, and such party is required to show, with sufficient clearness, that the statute under which the act is done does take away ordinary private rights.
Reasonable use/user
In cases of material damage to land, and also (in theory at least) cases of interference with amenity, it will be a defence for the defendant to show that the use of land causing the interference was reasonable. This will usually be an exceptionally hard task, however, since most uses of land, if reasonable, do not cause material damage to neighbouring property! The most obvious scenario in which the defence might apply is when the defendant has not actually created the source of the nuisance, but rather the source of the nuisance is a natural consequence of the land’s topography (such as water run-off).
Moving to the nuisance
It is generally no defence for a defendant to claim that the plaintiff is only experiencing a nuisance because he has moved closer to the defendant’s activity.
Remedies for nuisance
Damages
Injunctions
Damages
As with all torts, a private nuisance gives rise to an action in damages as of right. That said, it is common to describe injunctive relief as the primary remedy in private nuisance — as it is in respect of trespass to land.
Injunctions
If a nuisance is established, it is almost always appropriate for a court to issue an injunction to prevent it continuing. A court can suspend, or grant an injunction on terms that an activity be allowed to continue in a limited way, if it considers that this provides a better balance between the interests of the parties (for a good example, see Kennaway v Thompson [1981] 1 QB 88).
A difficult question is whether, having concluded that an activity is a nuisance, a court can choose to deny an injunction altogether and merely award damages instead, if it thinks that this is in the public interest. Traditionally the answer courts have given to this question is ‘no’ and an injunction will be denied only in the very exceptional circumstances outlined in Shelfer v City of London Electric Lighting Company.
