Nuisance - Torts

Nuisance

Learning Objectives

  • Understand the proprietary nature of nuisance claims.
  • Learn the difference between private and public nuisance.
  • Appreciate what type of interference gives rise to a claim in private nuisance.
  • Understand the factors that courts will consider in determining whether interference with enjoyment of land is unreasonable.

Overview

  • Two subcategories: Public and Private
  • Private Nuisance and Trespass to Land:
    • Unreasonable rather than direct interference
    • Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182
    • Interference with enjoyment and use of land
  • Private Nuisance and Negligence:
    • No damage needed
    • No duty of care needed
    • Nuisance only protects property interests
    • BUT they can overlap: see, eg, Miller v Jackson [1977] QB 966, 985–6

Private Nuisance

  • Hargrave v Goldman (1963) 110 CLR 40 (Windeyer J): ‘unlawful interference with a person’s use or enjoyment of land or some right over, or in connection, with it’.
  • Examples:
    • Physical damage
      • To buildings by flooding: Thorpes v Grant Pastoral Co Pty Ltd (1954) 92 CLR 317
      • To trees due to toxic fumes: St Helen’s Smelting Co v Tipping (1865) 11 ER 1483
    • Disturbance of the comfort/convenience without physical damage caused by
      • Smells: see, eg, Bamford v Turnley (1860) 122 ER 25
      • Noise: see, eg, Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145 [32]
      • Vibration: see, eg, Sturges v Bridgman (1879) 11 Ch D 852
    • Encroachment: D’Aquino v Trovatello [2015] VSCA 78
    • Subsidence: SJ Weir Ltd v Bijok (2011) 112 SASR 127
  • Test: (1) Standing to sue, and (2) Unreasonable interference

(1) Standing to Sue

  • Nuisance only protects persons with an interest in the land
  • No HC ruling, but Hunter v Canary Wharf Ltd [1997] AC 655, 703; Oldham v Lawson (No 1) [1976] VR 654
  • Owner (freeholder) occupying land (Malone v Laskey [1907] 2 KB 141) and holder of the right to possess without ownership (Masters v Brent London Borough Council [1978] QB 841)
  • Owner without the right to possess? Permanent harm: McCarty v North Sydney Municipal Council (1918) 18 SR (NSW) 210
    • Eg, vibrations causing structural damage: Colwell v St Pancras Borough Council [1904] 1 Ch 707
  • Licensee?
    • Traditional view: No
      • Malone v Laskey [1907] 2 KB 141: ‘a person who has no interest in property … has no cause of action in respect of … nuisance.’
      • Oldham v Lawson (No 1) [1976] VR 654
    • Recently: Yes
      • Deasy Investments Pty Ltd v Monrest Pty Ltd [1996] QCA 466: ‘It is true that there are decisions which suggest that a person in possession as a mere licensee is not protected by the law of nuisance, but the weight of authority is now to the contrary. In Khorasandjain [sic] v Bush [1993] QB 727, it was held in the English Court of Appeal that an action in nuisance (consisting in harassing telephone calls and the like) could be brought by a mere licensee with no proprietary interest. …
      • Although the older cases and in particular Malone v Laskey [1907] 2 KB 141 took a contrary view, I see no reason why the recent English decision should not be followed: it is consistent with a number of decisions in this country: Vaughan v Benalla Shire (1891) 17 VLR 129, Ruhan v Water Conservation and Irrigation Commission (1920) 20 SR(NSW) 439, and McLeod v Rub-a-dub Car Wash (Morvan) [sic] Pty Ltd (unreported, 29 February 1972 - Victorian Supreme Court).’
      • Toll Transport Pty Ltd v National Union of Workers [2012] VSC 316
      • Marsh v Baxter (2015) 49 WAR 1

(2) Unreasonable Interference

  • Must be unreasonable: Hargrave v Goldman (1963) 110 CLR 40; McWilliam v Hunter [2022] NSWSC 342 [35]
  • ‘Live and let live’ principle AKA rule of ‘give and take’
  • Bamford v Turnley (1862) 3 B&S 66:
    • ‘There must be, then, some principle … It seems to me that that principle may be deduced from the character of these cases, and is this, viz, that those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.
    • There is an obvious necessity for such a principle as I have mentioned. It is as much for the advantage of one owner as of another; for the very nuisance the one complains of, as the result of the ordinary use of his neighbour’s land, he himself will create in the ordinary use of his own, and the reciprocal nuisances are of a comparatively trifling character.
    • The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live.’
  • Coleman v Bicknell [2021] QDC 302:
    • ‘At law, interference may occur which is reasonable, and therefore not actionable. An unreasonable interference is determined by reference to ordinary standards of reasonableness according to the ordinary usages of people living in society or in a particular society. An interference will be considered unreasonable if it materially interferes with the ordinary physical comfort of human existence, regard being had to the character of the locality of the land, the standard of comfort that a person living in the area may reasonably expect, the duration of the interference, the social or public interest value in the defendant’s activity and the hypersensitivity (if any) of the user or use of the plaintiff’s land.’
  • Marsh v Baxter (2015) 49 WAR 1 (McLure P): ‘In making a judgment as to whether interference is unreasonable, regard is had to a variety of factors including the nature and extent of the harm or interference, the social or public interest value in the defendants activity, the hypersensitivity (if any) of the user or use of the plaintiff's land, the nature of established uses in the locality, whether all reasonable precautions were taken to minimise any interference, and the type of damage suffered’.

Relevant Factors to Consider for Unreasonable Interference

  • Not a tort to the person but a tort to land

    • Hunter v Canary Wharf Ltd (1997] AC 655 at 688: ‘In true cases of nuisance the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens.’

  • Therefore, relevant factors to consider are:

    • a) Type of interference
    • b) Substantial interference
    • c) Location
    • d) Time, duration, frequency and extent of the nuisance
    • e) Purpose of the D’s activity
    • f) Sensitivity of the plaintiff
    • g) Reasonable Precautions
    • h) Coming to the Nuisance
(a) Type of Interference
  • 2 types: (1) physical damage, and (2) other interference with the use and enjoyment of land
1) Physical damage

  • To the land or any part of the land

  • Examples:

    • Trees - fumes: St Helen’s Smelting Co v Tipping (1865) 11 ER1483
    • Windows - golf balls: Lester-Travers v City of Frankston [1970] VR 2
    • Clothes - acid smuts: Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683
    • Stock - dust: Harris v Carnegie’s Pty Ltd [1917] VLR 95.

  • Damage? prima facie nuisance

    • Onus shifts
    • Lawful justification: Kraemers v Attorney-General (Tas) [1966] Tas SR 113
    • Reasonable activity: Gartner v Kidman (1962) 108 CLR 12; Corbett v Pallas (1995) Aust Torts Reports 981-329.
2) Other interference with the use and enjoyment of land

  • Robson v Leischke [2008] NSWLEC 152 [85] (Preston CJ):

    • a) noise
    • b) vibrations
    • c) dust
    • d) noxious smuts and pollution
    • e) Smoke
    • f) offensive odours and stenches
(b) Substantial Interference

  • Substantial and not trivial: Munro v Southern Dairies Ltd [1955] VLR 332

  • Walter v Selfe (1851) 64 ER 849: ‘more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existences, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people’, affirmed in Gales Holdings Ply Ltd v Tweed Shire Council (2013) 85 NSWLR 514.

  • No objective parameter – case by case: Dynamic Flooring Pty Ltd v Carter [2001] NSWCA 396, [44].

  • Examples:

    • Loss of sleep - noise: Andrea v Selfridge and Co Ltd [1937] 3 All ER 255 at 261
    • Loss of sleep - one night: Munro v Southern Dairies Ltd [1955] VLR 332
    • Use of premises for prostitution: Thompson-Schwab v Costaki [1956] 1 All ER 652 (CA)
    • Floodlights in a backyard: Raciti v Hughes (1995) 7 BPR 14, 837
    • Glass veranda - sunlight: Bank of New Zealand v Greenwood [1984] 1 NZLR 525
    • Vibration: Sturges v Bridgman (1879) 11 Ch D 852

  • Yet:

    • No when D builds structures and blocks their neighbour’s view, restricts the airflow into their neighbour’s land, or removes light from their neighbour’s window.

      • Hunter v Canary Wharf Ltd [1997] AC 655 (Lord Goff): ‘As a general rule, a man is entitled to build on his own land, though nowadays this right is inevitably subject to our system of planning controls. 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 his land. The building may spoil his neighbour's view … ; in the absence of an easement, it may restrict the flow of air on to his neighbour's land … ; and, again in the absence of an easement, it may take away light from his neighbour's windows … nevertheless his neighbour generally cannot complain of the presence of the building, though this may seriously detract from the enjoyment of his land.’

    • No when D erects a building and interfere with the reception of television signals: Hunter v Canary Wharf Ltd [1997] AC 655.

    • Not to protect the right to privacy

      • Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 Latham CJ: ‘[w]hat the defendants [did] does not interfere with the races, nor does it interfere with the comfort or enjoyment of any person who is on the racecourse. The alleged nuisance cannot be detected by any person upon the land as operating or producing any effect upon the plaintiff's land. … the essence of the wrong [in nuisance] is the detraction from the occupier's enjoyment of the natural rights belonging to … the occupation of land … English law is, rightly or wrongly, clear that the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers, or of other persons who enable themselves to overlook the premises.’
      • Occupier of property: Bathurst City Council v Saban (1985) 2 NSWLR 704
      • Aerial photograph: Bernstein v Skyviews & General Ltd [1978] 1 QB 479
      • BUT, obiter protecting againt videotaping by surveillance cameras: Raciti v Hughes (1995) 7 BPR 14,837

    • However, exceptional cases where presence of structure on D’s land was nuisance.

      • Eg, Onus v Telstra Corp Ltd [2011] NSWSC 33
      • '[i]t is rarely the case that the use of land by a defendant which does not cause something to emanate from it, although its use interferes in some way with the use and enjoyment of the plaintiff's land, will amount to a private nuisance’.
      • More serious than objections to 'the erection of structures that spoil a view or restrict the flow of air or take away light or interfere with the enjoyment of television signals.’
      • ‘[T]his is a special case where the