NUISANCE (& R V F)

What are the 2 forms of nuisance?

1. PRIVATE

2. PUBLIC

T1: What are the 4 elements of a ‘private nuisance’, AND, according to BEMA v Body Corporate, what is the difference between the torts of ‘nuisance’ and ‘trespass’?

1. INTERFERENCE WITH USE OR ENJOYMENT OF LAND

2. UNREASONABLE & SUBSTANTIAL IN ALL THE CIRCUMSTANCES

3. (RIGHT TO) POSSESSION OF LAND BY P

4. CAUSATION BY D

Nuisance protects P’s use/enjoyment of land; Trespass protects P’s exclusive possession (BEMA).

T1, E1: What are the 2 types of interferences AND give 3 examples for each?

1. TANGIBLE INTERFERENCE = Results in physical damage to land/buildings (E.G. fire, flood, vibrations).

2. INTANGIBLE INTERFERENCE = Results in damage to comfort, health & inconvenience (E.G. smell, noise, fear for safety).

T1, E1: According to Fearn v Tate Gallery, what is an example of an “ordinary use of land”?

The right to build OR demolish structures.

T1, E2: What are the 3 guidelines on determining “unreasonable & substantial” interference? Give a case for each.

1. Character of neighbourhood (Helens Smelting v Tipping) = What would most people in the area be expected to put up with? Physical damage will almost always be unreasonable.

2. Nature & extent of harm (BNZ v Greenwood) = Would a reasonable person (with ordinary notions & behaviour in today’s society) regard the interference as unacceptable?

3. P’s sensitivity (Robinson v Kilvert) = D won’t be liable for nuisance if their conduct is something that could only harm an exceptionally delicate trade OR a P that is weak/unwell.

T1, E2: What are 8 case examples where “unreasonable & substantial” interference was assessed?

1. Smell = Colson v Lockley Park: Smell of animal excrement from 70 m away meant residents couldn’t occupy their houses & resell value went down → NUISANCE.

2. Noise = Hsu v Weddings: D neighbour mowed lawn often during vow exchange at P wedding venue → NUISANCE.

3. Encroaching branches = Blakesfield v Foote: P can trim tree branches encroaching onto their property from D’s up till the barrier.

4. Industrial emissions = Halsey v Esso Petroleum: Oil refinery in residential area emitted smell, noises, & acid smuts that damaged surrounding property → NUISANCE. HOWEVER, those who live close to public highways must accept the inevitable disturbance for the greater good of the public (Gillingham v Medway Dock).

5. Isolated events = Hamilton v Papakura: A one-off event → NUISANCE.

6. TV/Radio reception = Nor-Video v Ontario Hydro: Unreasonable, substantial AND non-passive interference (E.G. not due to sheer size of building) of TV/radio reception → NUISANCE.

7. Interference with right of access = Body Corporate cases: Changing electronic lock OR refusing to issue access cards to co-owners → NUISANCE (obiter).

8. Visual intrusion = Fearn v Tate Gallery: Mere overlooking (being able to see into neighbour’s property) isn’t sufficient. HOWEVER, visual intrusion that objectively substantially interferes with the ordinary use & enjoyment of the land → NUISANCE.

T1, E3: Who are the 3 types of Ps in possession of the land who are able to sue in ‘private nuisance’?

1. Lessees = Right to enjoyment) 

2. Lessors = ONLY if they can prove their right to enjoyment in the future is threatened by permanent interference)

3. Licensees = ONLY where the licence confers possession of land)—NOT spouses & children merely living on it (Canary Wharf) NOR those occupying land owned by a company.

4. De facto possessors = Occupying & exercising control over the property is sufficient against all but the true owner (Seddon v Ryan Carriers).

T1, E4: Who are 5 types of Ds that can be liable for causing the private nuisance? Give a case for all but the last 2. 

1. Creator of the nuisance (Sedleigh-Denfield)

2. Occupier of the land (Sedleigh-Denfield) = A person with power to carry out the activity which leads to the harm OR has a duty to prevent the harm “continues” a nuisance if has (presumed) knowledge of the nuisance & reasonable time/resources, yet fails to take reasonable steps to end it. He “adopts” it if he makes use of the act constituting the nuisance.

3. Lessors (Harris v James) = ONLY IF they’ve impliedly OR explicitly authorised their tenant to do the constituent act, OR where they fail to fulfil their duty to repair which leads to the neighbour’s property getting harmed.

4. Licensors = ONLY WHERE they retain possession of the land.

5. Employers of independent contractors = Where the activities would clearly lead to injurious OR hazardous consequences. 

T1, E4: According to Grace v Orion NZ, what must P prove in relation foreseeability in creation AND continuation nuisance cases?

1. Creation nuisance = That D created a nuisance AND knew OR ought to have known that his acts were likely to cause the kind of damage to P.
   

2. Continuing nuisance = That D knew OR ought to have known of the circumstances giving rise to the nuisance AND failed to end it. 

T1: What are the 4 defences available AND what are the 2 NOT available? Give a case for each (except #4).

1. Ordinary AND reasonable use of land (Rickards v Lothian; Tock v St John’s) = Considering local standards & risk, the use of land wasn’t a special use that brought increased danger to others (Rickards), AND considering the harm’s severity, locality’s character & utility of D’s conduct, a reasonable resident of that locality wouldn’t view the disturbance as a substantial interference with enjoyment of the land. NOTE: Where D carries out the activity maliciously → unreasonable (Hollywood Silver Fox Farm).
   

2. Statutory authority (Allen v Gulf Oil) = Where statute as expressly authorised D’s activity, conferred immunity (E.G. providing compensation, public interest, small group to exercise power) AND D has exercised the activity reasonably.
   

3. Planning permission (Gillingham v Medway Dock) = NEAR IMPOSSIBLE TO ARGUE, BUT an RMA resource consent may change the locality’s character so as to make D’s act more a reasonable use of land IF the consent has balanced public & private interests before authorising a major development with wide effects.
   

4. Contributory negligence/consent by P

UNAVAILABLE:

1. P “came to” the pre-existing nuisance (Fearn v Tate Gallery)

2. D to argue that their activity benefits the public (Fearn v Tate Gallery).

T1: What are the 5 remedies? Give a case for all except #4.

1. DAMAGES (Halsey v Esso Petrol) = Compensatory damages awarded for past physical damage, loss of value/use/enjoyment, AND personal discomfort/injury not covered by ACC to restore P to pre-nuisance position. Aggravated or exemplary damage available for flagrant misconduct. NOTE: Damages for loss of amenity may be reduced if P failed to mitigate loss by seeking injunctive relief promptly (Hawkes Bay Protein v Davidson).
   

2. INJUNCTION = Prohibitory (restrains continuing); Mandatory (orders doing—granted where P shows strong probability of grave damage occurring otherwise & damages insufficient - Redland Bricks v Morris); Quia timet (prevents anticipated harm); Interim (often have the effect of permanent injunction—granted on balance of convenience - American Cyanamid).
   

3. DAMAGES IN LIEU OF INJUNCTION (Shelfer v London Electric London) = Awarded for anticipated loss, allowing D to continue the nuisance, where the nuisance is small, capable of being estimated/compensated in money & it’d be oppressive to grant an injunction. ALSO may be awarded where D’s activity is of significant social utility, BUT this rarely prevails over private rights (BNZ v Greenwood).

4. ABATEMENT = Where P can remove the source of the nuisance without entering D’s land OR it’s an emergency, no notice is required.
   

STATUTORY REMEDIES (RMA S 16, 17, 23) = Enforcement/abatement notices may be issued against anyone who fails to fulfil their duty to avoid unreasonable noise AND adverse environmental effects (on people/economy/culture/aesthetic),

T2: According to Smith v Fonterra, what is the definition AND D’s liability for ‘public nuisance’?

A nuisance that substantially AND unreasonably interferes with rights belonging to a representative cross-section of a class of the public (health, safety, comfort, convenience, morals), assessed according to the local standard of comfort.

D will be strictly liable (liable even if D took all reasonable care) ONLY IF the kind of harm suffered was reasonably foreseeable.

T2: Who are the 2 types of people who can sue for ‘public nuisance’? Give a case for each one.

1. AG personally OR on behalf of others (AG v Abraham & Williams)

2. Affected individual (Smith v Fonterra) = ONLY IF they can show a “special/particular damage” above & beyond that suffered by the general public.

T2: Give 4 case examples of affected individuals bringing claims for ‘public nuisance’?

1. Widespread private nuisances (Smith v Fonterra: P’s land closer to coast so more affected by climate change).

2. Obstruction of business (Amalgamated Theatres v Luney: Erection of building in town square closed pathway to theatre reducing customers → NUISANCE). NOTE: Locality change & public benefit may mean obstruction’s reasonable (Gillingham v Medway Docks: Successful dock caused traffic → NOT NUISANCe).

3. D’s failure to abate (Wandsworth London Council v Railway: Railway company failed to prevent pigeons fouling footpath below → NUISANCE).

4. Isolated accident on highway (Williams v Borland: Requires negligence).

T2: Under S 145 CA AND S 32–38 Summary Offences Act, how does criminal nuisance operate alongside civil liability for public nuisance?

CA = Unlawful act/omission endangering life/safety = Offence (≤1 year).

SOA = Nuisance-like offences include fires, excreting in public, throwing stones, ETC.

What is the rule in Rylands v Fletcher?

An occupier who, in a non-natural use of land, keeps something on his land (E.G. bulk utilities like water, fire, gas) that’s likely to do damage should it escape will be strictly liable (liable even if exercised all reasonable care) for the natural & foreseeable consequences of it’s ISOLATED ESCAPE (unlike regular nuisance which applies to continuing interferences) . 

R v F: Like nuisance, who may sue AND who may sued?

SUE = Those with possessory OR proprietary interest in land.

SUED = Those with exclusive occupation OR control of the land from which the escape occurs.

R v F: Like nuisance, what damages are recoverable?

Primarily, loss of amenity (physical injuries to chattel & economic loss recoverable as consequential loss).

R v F: When is an occupier liable for deliberately lit AND unknowingly/naturally lit escape of fire? Under the Fire & Emergency Act 2017, how has liability for fire escape changed in NZ?

1. DELIBERATELY LIT = Negligent in lighting/allowing spread, OR strict liability where fire was non-natural use of land.
   

2. UNKNOWINGLY/NATURALLY LIT (Mason v Levy Auto Parts) = D brought things likely to catch fire onto his land, stored it in a way that fire would likely spread to P’s land if ignited, did this in the course of a non-natural use of land, AND the fire actually ignited & spread. 

New offence & penalty regime under FEA makes CL liability for fire escape harder to establish.

R v F: What are the 3 defences available (in addition to those for nuisance)? Give a case for each.

1. ESCAPE COMPLETELY P’S FAULT (Dunn v Birmingham Canal)

2. ACT OF STRANGER (Holderness v Goslin) = D will STILL be liable if they had the power to control the 3rd party (even if unexercised)—defence ONLY applies where D had no knowledge of the 3rd party on their property.

3. ACT OF GOD (NATURAL CAUSES) (Nichols v Marsland) = Escape is due to an unforeseeable natural event that couldn’t be guarded against.