Nuisance

What is the essence of private nuisance?

Unreasonable and substantial interference with the use and enjoyment of land.

 How does nuisance differ from trespass?

Trespass = interference with possession; nuisance = disturbance of use/enjoyment (BEMA Property v BC 366611).

What does nuisance law balance?

Plaintiff’s right to undisturbed enjoyment vs. defendant’s right to lawful use of land.

Tangible – physical damage (subsidence, flooding, fire).

Intangible – disturbance (noise, smell, dust, glare).

 When is interference actionable?

Only if it is substantial and unreasonable (Robinson v Kilvert (1899) 41 Ch.D. 88.)

Is locality relevant to nuisance? (Physical)

locality irrelevant (St Helens Smelting v Tipping).

Is locality relevant to nuisance?

locality matters.

Rule from St Helens Smelting Co v Tipping (1865)?

Physical damage = automatically unreasonable; neighbourhood character irrelevant.

NZ test for nature and extent of harm (BNZ v Greenwood)?

Whether a reasonable person in that area would find the interference unacceptable.

Facts in BNZ v Greenwood (1984)?

Glare from mall canopy reflecting sunlight into BNZ building was unreasonable interference.

French v Auckland CC (1974): example of unreasonable harm

Thistles spread – unreasonable.

Haddon v Lynch (1911): example of unreasonable harm

Church bell early morning – unreasonable.

Hsu v Weddings Etc (2009): example of unreasonable harm

 Neighbour mowing during weddings – unreasonable.

General rule about plaintiff’s sensitivity?

Exceptionally delicate trades or sensitivities are not protected (Robinson v Kilvert).

NZ example sentitivity to plaintiff: Hamilton v Papakura DC?

Water contamination affected delicate hydroponic tomatoes → too sensitive → no nuisance.

What counts as continuing nuisance?

 Failure to remove or abate a known nuisance (Grace v Orion; Leisure Investments v Grace).

 Can an isolated event be nuisance?

Yes — if the effect is substantial (British Celanese v Hunt).

Tree branches vs roots?

Branches can be nuisance; roots not unless they cause actual damage (Semple v Wilson).

 Smells?

Can be nuisance if continuous or extreme (Colson v Lockley Park; Hawkes Bay Protein).

 Commercial operations – refinery example?

Halsey v Esso Petroleum – smell, acid smuts, and noise all held nuisance.

Planning permission as defence?

 Possible only if it changes the character of the area (Gillingham BC v Medway Dock).

TV interference cases?

Nor-Video (1978): Yes, modern importance of TV reception.

Can denial of electronic access be nuisance?

Yes – interferes with enjoyment (BEMA Property v BC 366611).

Is there a right to a view?

No. (Victoria Park v Taylor).

Fearn v Tate Gallery [2023] UKSC 4

visual intrusion can be nuisance

Who can sue in private nuisance?

Anyone with a proprietary interest (owner, lessee, licensee with possession).

Who may be liable for nuisance?

Creator of the nuisance (Thompson v Gibson).

Does nuisance need to emanate from defendant’s land?

Usually yes (Wu v BC 366611), but not always – requirement is descriptive, not prescriptive (BEMA).

 When is landlord liable for tenant’s nuisance?

When landlord authorised it or nuisance is the natural and necessary result of lease purpose (Harris v James).

Smith v Scott (1972)?

Council housed troublesome tenants → held not liable (no authorisation).