Private Nuisance

Concept of private nuisance

Definition
Not actionable per se
Title to sue (Oldham)
- Must prove exclusive possession
- License
Rights protected tie it to a case
- Use and enjoyment
o Not privacy Whatever development in the law of privacy occurs will be to
the benefit of natural, not artificial persons.
o No obstruction mere presence of a building is not enough (Hunter)
Nature of nuisance
- Material damage St Helens
- Noise Munro
- Visual
- Smell Munro
TEST
- Lord Evershed in Thompson v Costaki - Whether what is being done

interferes with the Ps comfortable and convenient enjoyment of their land

o

Does it interference with Ps right to comfortably enjoy their use of land

What constitutes unreasonable nuisance calculus of nuisance

1. Substantial TEST not merely according to elegant or dainty modes Walker
v Selfe
i. Cannot be one off must be State of affairs Bolton v Stone
ii. Pres of building itself = not nuisance (Canary)
2. Locality Coming to nuisance no defense
a. Time doesnt matter - Sturges
b. Esso
3. Malice
a. Even though P unusually sensitive, malice can make act unreasonable
(Hollywood)
4. Undue sensitivity
a. Robinson v Klivery
5. Time
a. Longer = more damages/injunction
Defenses
- Statutory authorization
- No fault
- Consent
Remedies
- Abatement
o Allowed to remove source of nuisance
o Can get cost of abatement (Corbett v Pallas)
- Injunction
- Damages restricted to foreseeable loss (WM No. 2)

Definition: Hargrave v. Goldman: Windeyer, J an unlawful

interference with a persons use of enjoyment of land or some right
over or in connection with it.

A person then, may be said to have committed the tort of private nuisance when he or
she is held to be responsible for an act indirectly causing physical injury to land or

substantially interfering with the use or enjoyment of land or of an interest

in land, where in the light of all the surrounding circumstances, this injury or
interference is held to be unreasonable.

Actionable per se?

Generally, NO: must have proof of damage, which can be actual or intangible
(unreasonable interference with enjoyment of land).
Public nuisance common law crime
A person is guilty of a public nuisance who, does an act not warranted by law, or b
omits to discharge a legal duty, if the effect of the act or omission is to endanger
the life, health, property or comfort of the public, or to obstruct the public in the
exercise or enjoyment of rights, and to all her Majesty subjects.

Walsh v Ervin [1952] PLOUGH

This case looked at nuisance and whether or not the blocking of a right of way to use 2
farms amounted to a nuisance.
In this case 2 farmers owned land next to road.
- One farmer ploughed road stopping him from using it
- He brought action against farmer and installed a gate
Issue: whether plaintiff had a course of action of nuisance based on destruction of
highway. What measure of damages might be appropriate?
The possibility of restricting access amounted to nuisance.
Scholl J right of access is a private right of property
- Damages = must be a substantial interference of plaintiffs rights for damages to be
awarded
- Nominal damages can be at least obtained for interference with right

Even no evidence of using the road, still nuisance

General damages to recognize inconvenience
No injunction not threat of D to repeat it.
Scholl J If one person could have an action than everyone could. Individual
cannot sue alone for relief for respect of a nuisance of public highway unless
sustained particular damage.
Therefore, only if particular damage can be established that he can sue alone.
Since here, only farmer suffered damage, also it was substantial and direct he
had title to sue despite it being a public highway

Court looks at: loss of custom (property losses value due to limited approach to it)
Individual cannot sue for public nuisance, unless there is particular damage.
Action must be proved
Causing an encroachment
Causing physical damage to a neighbors land or any building works or vegetation on it
Intervening with a neighbors comfortable enjoyment of his or her land
NEED TO SHOW 2 THINGS TO SUE
1. DO THEY HAVE TITLE TO SUE: Plaintiff has possessory interest in land (need
actual possession tenants can sue, not landlord)
2. DO THEY HAVE RIGHT ATTACHED TO POSSESSION THAT HAS BEEN TAMPERED

WITH. Right recognized by law as being an INCIDENT OF OR ATTACHED TO

POSSESSION (e.g. quiet use of land free from smell or vibrations)

Title to sue
Oldham v Lawson [1976] WIFE OWNS
Plaintiffs were married couple
Husband and wife claimed damaged for noise. Wife owned house and husband could not
sue for damages as he had mere licence

Hunter v Canary Wharf [1997] TV RECEPTION

Principle of Law: "More is required than the mere presence of a neighboring
building to give rise to an actionable private nuisance."
Title to sue in nuisance is actual and exclusive possession of the land affected.
A mere license does not have title to sue.
Facts
Two actions:
Hunter v Canary Wharf Ltd - appellants claim damages in respect of interference
with the television reception at their homes. Claim it is caused by the construction
of the Canary Wharf Tower, built on land developed by the defendants.
- Damages in respect of interference with TV reception during
intervening period - framed in nuisance and negligence
Hunter v London Docklands Development Corporation - respondent
plaintiffs claim damages in respect of damage of what they claim to be
excessive amounts of dust created by construction of defendants of a road
o Plaintiffs residents in area, frame claims in negligence/nuisance
Held FACTS/IS HUNTER A LICENCSEE
Interference with TV signals:

As a general rule, a man is entitled to build on his own land. Moreover, as a

general rule, 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 the land.

No action lay in private nuisance for interference with television caused by the
mere presence of a building

Right to sue in private nuisance: Since the tort of nuisance is a tort directed
against the plaintiff's enjoyment of his rights over land, an action of private
nuisance will usually be brought by the person in actual possession of the
land affected, either as the freeholder or tenant of the land in question, or even as
a licensee with exclusive possession of land
In any event, it is right for present purposes to regard the typical cases of
private nuisance as being those concerned with interference with the
enjoyment of land, and as such, generally actionable only be a person with a
right in the land.
The extension of the tort in this way would transform it from a tort to land
into a tort to the person, in which damages could be recovered in respect
of something less serious than personal injury and the criteria for liability were
founded not upon negligence but upon striking a balance between the
interests of neighbours in the use of their land
If nuisance should occur, then the spouse who has an interest in the
property can bring the necessary proceedings to bring the nuisance to an end,
and can recover any damages in respect of the discomfort or
inconvenience caused b the nuisance.
Appeal of plaintiffs in Hunter v Canary dismissed. Cross appeal allowed

Title to sue springs from a proprietay interest in the land

MERE LICENCE HAS NO TITLE TO SUE
PROVIDED THAT TITLE TO SUE IN NUISANCE IS ACTUAL AND EXCLUSIVE POSSESSION OF
THE LAND AFFECTED A MERE LICENSE DOWN NOT HAVE THE TITLE TO SUE.
Licence sues for negligence but has to show actual damage

Interests in the use or enjoyment of land protected by

private nuisance
Thompson-schwarb v Costaki [1956] - PROSTITUTES
The the sight of prostitutes and their clients entering and leaving neighbouring
premises were held to amount to an actionable nuisance as the activity was
considered offensive in itself. There was no need to demonstrate that the activities
were noisy.
[T]he test [is] whether what is being done interferes with [Ps] in the comfortable and
convenient enjoyment of their land, regard being had to the [standards] of
civilized society, and to the character of the neighbourhood.
at 338 (Lord Evershed MR)

Laws v Florinplace [1981] SEX SHOP

If the use of a property itself may be an affront to ordinary sensibilities, then there is a
triable ground for nuisance
Facts
Florinplace purchased a dress shop in an area which included shops, restaurants, and
some homes and began operating a hard-core pornography shop. Ten residents of the
area brought a motion seeking an interim injunction against the store's continued
operation. They claimed nuisance on two grounds: 1) that the nature of the business
offended residents and thus was an unreasonable interference with the enjoyment of
their property, and 2) that the business would attract clientele which might accost local
girls.
Issue
Can the nature of a business constitute a

nuisance in law?

HELD
INJUNCTION GRANTED
The court held that each of these grounds represented a serious and triable issue;
there can be a nuisance if the use of a property is an affront to the reasonable
susceptibilities of ordinary people. No matter how discreetly the business was
carried on, its nature must be apparent for customers to locate and use it.

Victoria Park Racing and Recreation Grounds Co v

Taylor (1937) - PLATFORM
Principle of Law: The action in nuisance protects an occupier from
unreasonable interference with certain legally recognized aspects or incidents of
use and enjoyment of the land. Nuisance provides only limited protection to an

occupier from being overlooked by others.

This case looked at whether or not a racetrack was entitled to prohibit a man who lived
next to race course from viewing and broadcasting races from platform
constructed in his backyard.
Facts
-

Man built platform in backyard and relayed results via radio

broadcaster
Racetrack brought action in nuisance as he was using his land in such
a way that he was interfering with the racetracks proprietary rights.
They also argued that broadcasting was causing economic loss as
people were listening instead of coming.

Plaintiff's case: action upon the case for nuisance affecting the use and enjoyment of
the plaintiff's land
Held
-

Man was not interfering with racetracks proprietary rights and that his actions
did not constitute a nuisance
Did not affect use of race course
Providing competitive entertainment
o Racecourse is a suitable as ever as it was for races
Nor does it interfere with anyone on the race course or those
viewing it
No rights violated
o Latham J anyone has right to view at neighbors land if one wishes
for this to not happen they can erect a higher fence.
o Dixon J occupier is allowed to obscure neighbors view

No cause of action for breach of privacy

o

Plaintiff wants to have the broadcasting stopped because prevents people

from going to races and paying for admission - evidence shows some
people prefer hearing about races as seen by Angles to seeing the
races for themselves. Plaintiff contends - damage which it thus suffers gives,
in all circumstances - a cause of action

Raciti v Hughes (1995) - SURVEILLANCE

Principle of Law: Illumination and surveillance of the plaintiff's land may
amount to an actionable nuisance.
Facts

Defendant's property and plaintiff's property adjoin

Defendants installed on property floodlights and camera surveillance

equipment. Positioned so they respectively illuminate the plaintiff's
backyard and may record on video what occurs on plaintiff's backyard.
Plaintiffs say have become distressed since equipment was installed and no
longer feel that they can use their backyard in way which they have
theretofore. Activated by a sensor which switches on and films

Two separate acts of nuisance: the lights and the surveillance equipment
Held

The lights: in Australasia the times has tended to be more sympathetic to plaintiffs
than the older cases
o In the present case the evidence shows that the lights are
automatically switched on by the noise or movement on the
plaintiff's land. They come on day or night. There is evidence that the
plaintiffs are suffering real health problems as a result of the continued
illumination of their land. In my view, the cases show that lights of this
nature may well constitute a nuisance
The surveillance equipment: there is no doubt that as a general rule what one can
see one can photograph without it being actionable
o On the evidence before me at the moment there is a deliberate
attempt to snoop on the privacy of a neighbour and to record on video tape.
It seems to me that this is an actionable nuisance.
The facts of this case show that the surveillance and accompanying recording by
video camera of what occurs in the ps backyard gets sufficiently close to watching
and besetting and which, on analogy with cases such as Alma's case, are an
actionable nuisance
Injunction granted

Corbett v Pallas (1995) - POOL

Damage to property is a prima facie case in nuisance, and to amount to nuisance the use of
the land, although natural, must be unreasonable. Once a prima facie case is
established the onus of proof is on the D to show a reasonable use of their land.
Considered the issue of nuisance and whether a pool which resulted in flooding of
neighbors property resulted in private nuisance
Facts
- Man was making a pool in his backyard, but prior to completion there was a storm
which caused flooding onto his neighbours yard, the neighbor then brought an
action of nuisance on basis the D was required to build retaining wall. D argued
building of pool was natural use of land
Issue
- Whether construction of SP should amount of nuisance
- Should the defendant be liable for the plaintiffs wall?
The way the pool was constructed was unreasonable and amounted to
nuisance. The P had no previous flooding before. Evidence showed the swimming pool
caused the flooding. It was not unreasonable or unnatural for the D to build the pool, but
the way in which it was constructed was unreasonable because it caused the flooding.
Ms Corbett was liable for nuisance
1. Swimming pool without necessary draining measures was not a natural and
reasonable use of land
2. Burden of proof lies with the defend to establish natural and reasonable use of land
. This is a possible defense
Held
The construction of the pool was unreasonable and therefore amounted to a private
nuisance
Based on evidence neighbor had not experienced flooding prior pool. Expert engineers
also showed pool redirected water to neighbour.
Court concluded swimming pool which caused the flooding.
Nuisance will not arise if the use of the land is a natural use or a reasonable use of it.
Pool itself was not unreasonable, but the way it was constructed was unreasonable.

1. Prima facie case for nuisance will be established when material damage has resulted
in the increase flow of water caused by an alteration of formation of land.
2. Not for P to prove unnatural use of the land
3. Burden of proof is on D to show that the change in formation of land does not cause
the nuisance
4. Unreasonable use in itself is not necessarily a nuisance
5. It must be determined reasonably using all circumstances of the case
Prima facie case was established. Owner of ppl could not show that construction was
reasonable.
This case was significant affirmed rules laid down by private nuisance damage to
property is a prima facie case in nuisance. Use of land must be unreasonable.
Once prima facie case is established, the onus of proof is on D to prove reasonable use
of their land.

In Corbett v Pallas: P could recover cost of erecting wall to stop water damage,
as it was counted as part of damage suffered.

Unreasonable and Substantial interference; locality and

utility Material Damage and personal
discomfort/inconvenience
St Helen's Smelting Co v Tipping (1865) TREES
Principle of Law: Whether an interference with comfort and quiet enjoyment
amounts to an actionable nuisance will depend on the locality. An
interference which causes material damage will be an actionable nuisance.
It is a very desirable thing to mark the difference between an action brought for a
nuisance upon the ground that the alleged nuisance produces material injury to the
property, and an action brought for a nuisance on the ground that the thing alleged to be
a nuisance is productive of sensible, personal discomfort.
Facts

Plaintiff purchased property where there were numerous manufacturing works.

At time of purchase plaintiff aware of presence of defendant's copper smelting
works - about mile and half away.

Noxious vapours from the defendant's works caused damage to trees and crops
on plaintiff's property.
Held

The personal inconvenience and interference with one's enjoyment one's personal
freedom, anything that discomposes or injuriously affects the senses or
the nerves, whether that may or may not be denominated a nuisance,
must undoubtedly depend greatly on the circumstances of the place where
the thing complained of actually occurs
o 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 to property, then there
unquestionably arises a very different consideration

The whole neighbourhood where these copper smelting works were carried
on, is a neighbourhood more or less devoted to manufacturing purposes of a
similar kind, and therefore it is said, that inasmuch as this copper smelting is
carried on in what the appellant contends is a fit place, it may be carried with
impunity, although the result may be the utter destruction, or the very

considerable diminution of the value of p's prop

Appeal dismissed

so Where such injury is proved, it is not relevant to inquire whether the

locality in which the defendant carried on the activity was a suitable one.
If a person sets up a trade/business in an area which has been zoned for
that type of use, fact of compliance with planning legislation must weigh
heavily in favour of a finding that the use is reasonable as
to locality. And conversely, such planning legislation will normally
prevent a person from setting up and understaking in an unsuitable
location.

Alleged nuisance involving personal discomfort [that is], anything that

discomposes or injuriously affects the senses or the nerves of the lands
occupants
Where mere discomfort is occasioned, nuisance is a question of degree - Ds
conduct must be evaluated by reference to the circumstances (eg, the
locality) and a judgment made as to whether or not it is something P should
be expected to tolerate

Munro v Southern Dairies [1955] VLR 332 DAIRY STABLE

Nuisance and whether the noise and smell that came from neighbors stable was
nuisance
Principle of Law: In order to be an actionable nuisance, an interference with
comfort and convenience must be substantial according to the ordinary
standards of comfort to be expected in the locality. It is no defence to say that the
activity is socially useful or that the defendant took reasonable care.
Facts

Man owned property situated next to dairy.

The dairy maintained a stable of horses which was situated between 2 properties.
Owner complained of noise and smell.
Brought action that this was nuisance.
Defendant argued that noise and smell were not sufficient
Held

Stables DID amount to a nuisance. Noise and smell were substantial.

- Unlawful interference of persons use of land or some right over it
- Scholl J added that the interference must be substantial and that the nusiance
must be so substantial that it causes damage to him
- Balancing of conflicting interests everyone must endure some level of noise
- Court will consider the locality if it is generally a diary area, less likely to be
nuisance
- Even one night loss of sleep could be a nuisance.

Painter v Reed [1930] applied: alleged nuisance by smell had not been
proved but that nuisance by noise of horses had been and restraint by injunction
It has been held that the mere fact that a business may be so carried on as to be
useful to the public, or even important from the point of view of public
benefit, is insufficient to justify what otherwise would be nuisance
There is some authority for the view that operations of a trade in a locality
where it is essential cannot be complained of
There has been caused by the defendant's keeping of his horses on its
Willis Street premises a substantial nuisance of noise, smell of manure, urine
and flies to the plaintiff, as occupier of the premises at 23 Willis Street,
from at least the latter part of 1952 onwards

Judgement for the plaintiff

Looking at zoning and characteristics of neighbourhood in this case, it was urban

therefore, harder to bring such a private nuisance claim.

Abnormally sensitive plaintiffs and malice

Interference has to be more than fanciful you cant be a wringer,or an abnormally
sensitive plaintiffs and malice

What if the plaintiff is abnormally sensitive?

What if it is malicious?

Sensitive plaintiffs
Robinson v Kilvert (1889) SENSITIVE PAPER

Landlord's cellar maintained a 27 degree Celsius temperature for its

business, and the heat affected a tenant's paper warehouse business on
the floor above
o Tenant no remedy because landlord was a reasonable user of his
property
"If a person does what in itself is noxious, or which interferes with the
ordinary use and enjoyment of a neighbour's property, it is a nuisance.
But no case has been cited where the doing something not in itself
noxious has been held a nuisance, unless if interferes with the ordinary
enjoyment of life, or the ordinary use of property for the purposes of
residence or business"
Motive taken into account act carried out with malice is looked at. If D conduct
is void of social utility - sole purpose of act is interface may be treated as
unlawful despite the degree of nuisance being objectable.

Malice
Christie v Davey [1893] MUSIC LESSONS

P had been giving music lessons in semi-detached house for several years
D, irritated by the noise, banged on the walls, shouted, blew whistles and beat tin
trays with the malicious intention of annoying his neighbour and spoiling the music
lessons
Injunction granted to restrain the D's behaviour

Hollywood Silver Fox Farm v Emmett [1936] - FOXES

The D, motivated by spite, deliberately fired guns near the boundary of P's land in
order to scare the P's silver foxed during breeding time
Held to be a nuisance following Christie v Davey
- Held liable for private nuisance
Plaintiffs awarded damages

I am satisfied that [D] sent his son to shoot near the breeding pens for
the purpose of frightening the vixens and for no other purpose at all
[D, referring to Robertson v Kilvert] submitted that the keeping of a
silver fox farm is not an ordinary use of land, and that the shooting would
have caused no alarm to the animals which are usually to be found on

farms in Kent or done them any harm [However] there is authority for
the view that in an action for nuisance by noise the intention of the
person making the noise must be considered at 471, 474 (Macnaghten
J)

Basis of liability
Strict liability of the creator of a private nuisance
Fennell v. Robson Excavations [1977] - EXCAVATOR
-

Person could be held liable even though it was on land that was neither occupied
nor controlled.

Facts
Nuisance Whether or not an excavator who had carried out excavation work on a piece
of land is liable for damage on a neighboring property
Developer employed excavator to remove soil. Soon after the developer went into
liquidation and as a result a pile of dirt was left. Water caused damage.
Neighbor brought an action against the excavator as they had created a nuisance which
they were responsible for.
Excavator argued that they were not responsible as they were not in possession of the
land nor did they have power to prevent damage from occurring.
Issue
Whether or not the excavator could be held liable?
Held
Found excavator liable as they had created a nuisance on the land in the first place. Even
though developer employed excavator person who erect nuisance, whether he be
owner of land or servant or contractor, incurs personal responsibility for it.
Withdraw of lateral support of land is actionable nusiance of which strict liability
attaches.
Court did acknowledge that owner could have liability but this did not exclude contractor

Liability of an occupier for a private nuisance created by a

trespass
Sedleigh-Denfield v. O'Callaghan [1940] - GRATE
Facts
-

A trespasser laid a drain along a ditch on the Ds land

Later the defendant came to use the drain themselves
A grate was misplaced by them so that in heavy rainstorm, it become clogged with

leaves Water then flowed over into plaintiffs neighboring land.

Held
The defendants were liable. Although the drain had been placed by a trespasser, they
had adopted it.
An occupier of land is liable for the continuance of a nuisance created by others if he
continues or adopts it.
[The] occupier continues a nuisance if with knowledge or presumed knowledge of
its existence he fails to take any reasonable means to bring it to an end though with
ample time to do so.
He adopts it if he makes any use of the erection, building, bank or artificial
contrivance which constitutes the nuisance.

1. D continues a nuisance if with knowledge of its existence he fails to take any

reasonable means to bring it to an end
2. D adopts nuisance if he makes any use of(the thing) which constitutes the
nuisance

Liability of an occupier for a private nuisance created by a

licensee
Challen v McLeod Country Golf Club (2004) GOLF BALLS
If an occupier of land permits a nuisance to the conduct on its land of which it knows or
ought to know, it becomes liable for the nuisance and its potentially harmful
consequences to other from the time at which it acquired that knowledge or ought to
have done so.
Nuisance and whether a golf club was liable for golf balls hitting an neighboring house
P brought action against golf club on basis that golf balls were causing damage to their
house
D rebutted saying that the projector of golf balls was on the player and not the club
Issue
- Whether this amounted to nuisance and w
Held
- Gold club was liable
- Allowed nuisance to be permitted omits land
- If an occupier of land permits the conducting of nuisance on its land, while it knows,
or ought to have known, it becomes liable for that nuisance.
- McPherson concluded that golf club knew of the nuisance and it had potential to
course damage to the neighbors.
Interference with neighbors property was material and substantial even 3 balls per
week. They interference with enjoyment of neighbor and property.
Mullins rewarded damages for cost of repairs and general damages.
Owner of land can be liable if they knew or ought to have known about the existence of a
nuisance.

Liability of a lessor for private nuisance created by a

lessee
Harris v James and Senhouse (1876) (BURNING LIME)
A landlord can be responsible for the acts of nuisance of his tenant if he has authorised the
tenant to do the acts.

THE LANDLORD AUTHORISED THE TENANTS TO BURN LIME, AND THEREFORE THEY
KNEW OF THE POSSIBLE NUISANCE.
- Differs from Smith v Scott- where council knew the family moving in were
troublesome and would most likely cause nuisance
- Similar to Peden v Bortolazzo where landlord authorised the noise coming
from Motel including live bands, and unruly/drunken behavior.
Blackburn J
Where one person authorises and requests a person to do certain things, he is liable for any
consequences that arise therefrom. If the authority is given in a lease, the person who
gives that authority is no less liable on that account. [I]n the case before us the lime
field was let for the very purpose of burning lime. [F]or any mischief that arises from
the natural and necessary result of what the landlord authorised and required, or even
authorised and did not require, I think that the landlord must be held liable.

Smith and Scott [1973] SMITH FAMILY

Facts
A council acquired property next door to the Ps home in order to house
homeless families. The Council placed a troublesome family in the
property who committed several acts of nuisance against the claimants.
The council knew the family were troublesome although the
terms of the tenancy agreement prohibited acts of nuisance by
the tenants.
Held:
The Council were not liable for the acts of the tenants. Whilst they were
aware that the family might commit acts of nuisance, they had not
authorized the nuisance.
In

general, a landlord is not liable for for nuisance committed by his tenant
[unless] the nuisance has been expressly authorised or is certain to result from
the purposes for which the property is let [I]t would, I think, be impossible to
apply the exception [here]. The exception is squarely based in the reported
cases on express or implied authority. In the present case, [D] let [the] house
on conditions of tenancy which expressly prohibited the committing of a
nuisance, and, notwithstanding that [D] knew that the Scotts were likely to cause
a nuisance, I do not think it is legitimate to say that [D] impliedly authorised the
nuisance. at 321 (Pennycuick VC)

Peden v Bortolazzo [2006] - MOTEL

A landlord is not liable for a nuisance created by a tenant unless the landlord expressly
authorized the nuisance or the nuisance was certain to result from the purpose for which
the land was leased. 'Certain' means a very high degree of probability.
Facts

The defendant (applicant) was the owner of adjacent property on which there
was a house divided into two residential flats. The plaintiff contended that
the defendant was liable for nuisance (comprising excessive noise, smoke
from burning off and unruly and drunken behaviour at all hours of the day)
created by the tenants to whom the defendant had leased one of the flats
under a lease containing an express prohibition on the tenants creating a
nuisance
Issue
Is a landlord liable for nuisance created by lessee?
- No a landlord is not liable for nuisance created by tenant
- Exception to this rule OUTLINED in Peden v Brot
-

Landlord can be held liable for nuisance created by a tenant if they EXPRESSLY
authorized the nuisance or the nuisance was certain to result from the purpose for
which the land was leased.

Liability of an occupier for a private nuisance arising from

an act or state of nature
Goldman v. Hargrave [1967] - LIGHTENING
Nuisance and whether a man owed a duty of care to his neighbor in terms of
putting out a fire when a tree had been struck by lightening
D (farmer)s efforts to extinguish fire (started by lightning fire) was insufficient. Held
liable when fire spread to Ps land. Held: taking into account financial etc
resources, the D had not done what was reasonable to remedy the nuisance.
Facts
-

Lightning bolt struck a tree

Man surrounded tree with water
Chopped tree down
After a few days, fire reignited that damaged neighbors property

The D argued that he did what was reasonable to stop the fire
Held
Court ruled for plaintiff.
Court took into account the mans financial resources and knowledge.
Court stated that a man should not be liable unless it is clearly proved that in his
circumstances he could have done more. Therefore, even though he did not start
the fire, he was in a duty of care to put out the fire.

The method was unreasonable in circumstances risk in revival of fire if not

carefully watched. From this negligence where damage arose.
Court rejected the act of God argument
Occupier of land owes a duty and fire that effected property arose due to
negligence of man not doing all that was reasonable.
Occupier of land is under a duty of care to reduce hazards on their land even though
they did not create the hazard in the first place.

Leakey v The National Trust for Places of Historic Interest

or Natural Beauty
Leakey v National Trust: D had resources to remove danger to Ps land caused by
large mound of unstable dirt on Ds land.
Facts
Natural causes were responsible for soil collapsing onto neighbouring houses in
Bridgewater.
Held:
An occupier of land owes a general duty of care to a neighbouring occupier in relation to
a hazard occurring on his land, whether such hazard is natural or man-made (the
hazard being an unstable mound of earth which was present on the land not as a result
of any human action or activity on the land). The nature and extent of the duty is a duty
to do that which is reasonable in all the circumstances.

Defenses

Statutory Authority
Allen v. Gulf Oil Refining [1981] - STATUTE
No cause of action can be maintained for the act, if that act is authorized by the legislature.
Defense is a justification still has to act with reasonable regard and care.
Facts
The claimant brought an action in nuisance for the smell, noise and vibration created by an
oil refinery which had been constructed by the defendant on their land. The defendants
action in constructing the oil refinery was authorized by an Act of Parliament.
Statutory authority to carry out an activity may provide a defense to an action in nuisance.

It is well-settled that where Parliament by express direction or by necessary

implication has authorised the construction and use of an undertaking or works,
that carries with it an authority to do what is authorised with an immunity from
any action based on nuisance To this, there is made the qualification that
the statutory powers are to be exercised without negligence that word being
used here in a special sense so as to require the undertaker, as a condition of
obtaining immunity from action, to carry out the work and conduct the operation

with all reasonable regard and care for the interests of other persons [The key
question is: what] is the scope of the statutory authority conferred in this case?
at 1011 (Lord Wilberforce)

Managers of the Metropolitan Asylum District v. Hill

(1881) - SMALLPOX
P had been give statutory authority in the Metropolitan Poor Act 1867 to provide
asylums for the reception and relief of the sick, insane or infirm. Acting under
this, they built a smallpox hospital where it caused a nuisance to the respondent
and other residents in the neighborhood.
House of Lords held that the appellants would be restrained by an injunction from
using the hospital in such a manner as to create a nuisance.

"Coming to the nuisance" no defence

Sturges v Bridgman; Miller v Jackson: no defence that P has come to nuisance.

Sturges v. Bridgman (1879) DR V CONFECTIONER

Decides that what constitutes reasonable use of one's property depends on the character
of the locality and that it is no defense that the plaintiff "came to the nuisance".
Facts
Doctor moved in next door to a confectioner
- Built a waiting room on boundary
- Therefore came to the nuisance of noiser confectioner next door.
- 60 year pestles made noise grinding sugar
- No previous annoyance or complaints
Defendant stated in his defense that he and his father had used one of the pestles and
mortars in the same place for 60 years.
- Also that if P had built his consulting room with a separate wall, and not just again
the wall of Ds kitchen = no noise
Issue:
-

Whether the Bridgmans had acquired a right to create noise and vibration against
their neighbors by virtue of having done so continually for 60 years

Held:
-

Important to look at locality when making any of these deicisions.

No one can acquire a right to create a nuisance and that, therefore, Dr Sturges is
entitled to an injunction
Despite length of time there it was no defense

Miller v. Jackson [1977] - CRICKET

Facts

Cricket played for a long time at oval

Millers house was 48 m away, and garden 30 m away, from batting crease
Club erected 3 m high fences on top of 2 m boundary wall
Balls would occasionally go in their yards etc
Held
High court ruled that there was a foreseeable risk of injury to the plaintiffs. The club was
guilty of negligence on each occasion when a ball comes over the fence and causes
damage to the plaintiffs.
The repeated interference was also held to be actionable nuisance.
- Followed Sturges and Bridgman
o The fact that the Millers had come to nuisance is no defense.
Millers were award damages

*Campbelltown Golf Club v. Winton [1998] NSWSC 257

(Cases, ch 3)
It is no defence to say that the nuisance was in existence before the plaintiff's
occupation of their land.

The courts have also rejected the proposition that damages should be reduced in
circumstances where P came to the nuisance: Campbelltown Golf Club Ltd v
Winton [1998] NSWSC 257

1. prescription
a. Show that there has been a
2. Statutory authority
a. Acts of parliament which allows for it
Coning ot nuisance is nbo defense
- Where the plaintiff comes to the nuisance.
-

Remedies
Supreme Court Act 1970 (NSW) s 68
Where the court has power to grant an injunction, the court may award damages in
addition to or in substitution for the injunction.

Shelfer v. City of London Electric Lighting Co [1895] 1 Ch

287 (AL Smith LJ)
Sets out the conditions for awarding damages rather than an injunction in nuisance

cases.
FACTS
The City of London Electrical Lighting Company set up powerful engines and other works
on land near a house which was being leased by Shelfer. Due to vibrations and oise
caused by the work, structural damage appeared in the house and caused
annoyance and disturbance to Shelfer. He brought an action for an injunction and
damages for the injury and nuisance caused thus far. The trial judge refused to
grant an injunction and instead awarded damages.
ISSUE
When should a plaintiff be granted an injunction versus damages?
HELD/REASONS
In my opinion, it may be stated as a good working rule that damages over injunction
(1) If the injury to the Ps legal rights is small,
(2) And is one which is capable of being estimated in money,
(3) And is one which can be adequately compensated by a small money payment,
(4) And the case is one in which it would be oppressive to the D to grant an
injunction : then damages in substitution for an injunction may be given= (A L Smith
LJ)
However, Smith also states that there may be cases where these four conditions are
present, however the defendant has acted in such a way that he has disentitled himself
from asking for damages instead of an injunction, such as hurrying up building in order
to finish it before an injunction may be granted.
In this case Smith finds it is clear that damages should not be awarded in place of an
injunction to prevent continuance of the nuisance

*Gales Holdings v Tweed Shire Council [2013] NSWCA 382

(Supplementary Materials)
Private nuisance may be committed where the defendant alters the
natural floor of surface water (stormwater runoff) on the defendants
land so that the surface water flows onto and inundates the plaintiffs
land. However, applying settled principles,damages for the tort of
private nuisance as for the torts of public nuisance and negligence,
are recoverable only in respect of damage of a kind which was
reasonably foreseeable by the defendant

1, an injustiction in the case of continuing nusiance (this is usual remedy osught by

plaitinff) section 68
- Interlocutory injunction
o Sough tprior to trial to restrain the defendant freom cintuing the
intereference until the question of whether it consititutes a nuisaace is
determined atrial
o This will only occur where a serious question must be tried and if, on the
balance of conveience, it = appriporiate to restrain defendant from
conitnung the possible nuisance
- Quia time injuscnion
o Where the court grants an iudtion to restain a threated nuisance that is
imminent or highly likely to occur
- Permannt injunction
o Granted if it is established that the interfence cyased by defendant is in fact
a nusiaance, anf if it is trhratens to continue.

Ac action for damages

The self-help remedty of abatement
- Only available if a mandatory injuction is
- Rhis reemdyt involves the wronged party taking steps to prvent the nuisance
- Usually involved wronged party entering the defendtn property and remove ing the
source of the nuisance
- Must normally give notice of the abatement but need bnot do so in an emergency,
or if the nuisance can be abted whtout entering the defendants kand
- This is how prive nuisance ican be sorted out of court.
Damages

Sensible material injury to

plaintiff's property or
interference with natural
right of support for land
Full restitution for loss

Recover losses as are a

reasonably foreseeable
consequence or commission
of nuisance

To continue a nuisance may

amount to the commission of
a further tort of nuisance

Injunction
Plaintiff at the time of trial already
suffered measurable loss to value of
property seek remedy in damages, but
where likely to continue: injunction
against the defendant
Conduct is intentional
Discretionary remedy
Once plaintiff proved substantial
interference occurred/likely to continue
defendant must adduce proof why
injunction should not be granted
Courts may grant injunction but suspend
its operation until defendants have had
time to end the nuisance

Justice Young - Requirements for an Injunction

1. Strong prima facie case of trespass (in occurrence with trespass)
2. Must establish that irreparable harm will be suffered by plaintiff
(Damages are an inappropriate remedy)
3. Establish that the balance of convenience (much lower standard) there is a tri-able
case/justiciable [case to be heard]
Abatement

The law permits a person whose enjoyment of land has been interfered with, or
is threatened with imminent interference, to adopt the self-help remedy of doing
what is necessary to abate the nuisance

Abatement involves the removal of the source of the interference and not merely
taking protective measures designed to minimize the harmful
effects thereof MITIGATION/SELF-HELP STRATEGY

If removal of the source of nuisance involves entering onto the land from which it
emanates, the fact that the entry is for the purpose of abatement may provide a
defence to what would otherwise be a trespass
o
But can be undertaken by removal of trees and not involve entry into someone's
land

If it is carried out, damages are generally not available either for injury which
has already been suffered or for the cost of undertaking work
Ensures that damage is not ongoing in future Young v Wheeler
PENNY CHECKLIST - PRIVATE NUISANCE

o
o
o
o

Substantial discomfort: Whether interference constitutes:

Locality: characteristics/zoning of neighbourhood
Triviality of claim (interference must be substantial/unreasonable
Time, duration, frequency of the claim
Nature of the activity
Nuisance is caused by a social utility, nature of activity is important - not an
actionable nuisance
o Motivation of actor/activity - malice

o Potential steps to minimize the interference: social utility

ONLY PROTECTS ACTUAL POSSESSION
o
Owner out of possession cannot sue for nuisance - only for a reversionary
interest
o
Wrongful possessor (Squatter) can sue for nuisance/trespass because his/her
title good against whole world except owner