Interference with Immoveable

Property: Nuisance
 Introduction

 Everyone, today thinks that interference should not come from his neighbour
in his way of life, but it is not possible in absolute manner.
 One has to endure some degree of noise, dust, smell, smoke, the escape of
effluent etc., otherwise life would not move in the modern world.
 Introduction

 The word “nuisance” is derived from the French word “nuire”, which means
“to do hurt, or to annoy”.

 The concept of nuisance has its origin under the common law tort. By
common law we mean precedents or case laws

 It is one of the oldest causes of action known.

 Definition

 One in possession of a property is entitled as per law to undisturbed

enjoyment of it.

 If someone elseʼs improper use in his property results into an unlawful

interference with his use or enjoyment of that property or of some right over,
or in connection with it, we may say that tort of nuisance occurred.

 In other words, Nuisance is an unlawful interference with a personʼs use or

enjoyment of land, or of some right over, or in connection with it.
 Definition

 Nuisance is an injury to the right of a person in possession of a property to

undisturbed enjoyment of it and result from an improper use by another
person in his property.
 Definition

 Stephen defined nuisance to be anything done to the hurt or annoyance of

the land of another, and not amounting to a trespass.

 According to Salmond, “the wrong of nuisance consists in causing or allowing

without lawful justification the escape of any deleterious thing from his land
or from elsewhere into land in possession of the plaintiff, e.g. water, smoke,
fumes, gas, noise, heat, vibration, electricity, disease, germs, animals”.

 According to Blackstone, Nuisance is a species of real injuries to a man’s land

and tenements which may be defined as anything done to the hurt or
annoyance of the lands, tenements of another.
 Definition

 Winfield defined it as “an unlawful interference with a person’s use or

enjoyment of land, or some right over or in connection with it”.
 Distinction b/w Trespass & Nuisance

1. Trespass is direct physical interference with the plaintiffʼs possession of land

through some material or tangible object. Nuisance is an injury to some right
accessory to possession but no possession itself.

 Illustration:
 A right of way or light is an incorporeal right over property not amounting to
possession of it, and disturbance of it is a nuisance and not trespass.

2. In case of Nuisance, generally, injury is consequential.

 To throw stones on the neighbor's land ;and, it is trespass but If the roots of
tree planted on defendant's land undermine the foundation of neighbor's
building, it is nuisance.
 Distinction b/w Trespass & Nuisance

3. Trespass is actionable per se whereas nuisance is actionable only on proof of

damage.

4. Trespass requires direct entry into the property of the plaintiff whereas in
case of nuisance generally it is indirect and take place from outside the
property of plaintiff.

5. In nuisance, the interference is always committed through intangible objects

like vibrations, gas, noise, smell, electricity or smoke. Whereas in trespass, it is
caused by tangible object.

 Only person in the direct possession (including tenant)of land can sue for
trespass but for nuisance even a person indirectly affected may sue.
Different types of Nuisance
 Different types of Nuisance

Please note that when the courts and law reports refer to a ‘nuisance’, they are
usually referring to a private nuisance and not a public nuisance.

When statute law refers to a ‘nuisance’ it usually means both public and private
nuisance unless otherwise stated.
 Public Nuisance

 Under Section 3 (48) of the General Clauses Act, 1897, the words mean a public
nuisance defined by the Indian Penal Code.

 Chapter XIV of the IPC deals with public nuisance. It is an offence/crime affecting
the public health, safety, convenience, decency and morals.

Section 268 of the Indian Penal Code, defines it

 as an act or illegal omission
 which causes any common injury, danger or annoyance,
 to the people in general who dwell, or occupy property, in the vicinity,
 or which must necessarily cause injury, obstruction, danger or annoyance to
persons who may have occasion to use any public right.

 Example: To block the public highway which stops the movement for a number of
people is a public nuisance.
 Public Nuisance

 Simply speaking, public nuisance is an act affecting the public at large, or

some considerable portion of it; and it must interfere with rights which
members of the community might otherwise enjoy.

 Thus acts which seriously interfere with the health, safety, comfort or
convenience of the public generally or which tend to degrade public morals
have always been considered public nuisance.
 Public Nuisance

 Section 133 in The Code Of Criminal Procedure, 1973

Conditional order for removal of nuisance.

1. Whenever a District Magistrate or a Sub- divisional Magistrate or any other
Executive Magistrate specially empowered in this of behalf by the State
Government, on receiving the report of a police officer or other information
and on taking such evidence (if any) as he thinks fit, considers-
a. that any unlawful obstruction or nuisance should be removed from any public
place or from any way, river or channel which is or may be lawfully used by the
public; or
b. -----

Explanation- A "public place" includes also property belonging to the State, camping
grounds and grounds left unoccupied for sanitary or recreative purposes.
 Public Nuisance

 Attorney General v. P.Y.A. Quarries, (1957)1 All ER 894

 Quarrying operations were conducted in such a way that local residents were
affected by dust and vibrations from explosions. The court defined public
nuisance as ‘one which materially affects the reasonable comfort and
convenience of life of a class of Her Majesty’s subjects’.
 The defendant’s activities were held to amount to a public nuisance.
 Public Nuisance

 K. Ramakrishnan And Anr. vs State Of Kerala, AIR 1999 Ker 385

 Petition highlighting the public health issue of the dangers of passive smoking
in public places is illegal, unconstitutional and violative of Article 21 of the
Constitution of India and urged the court to take appropriate and immediate
measures to prosecute and punish all persons guilty of smoking in public
places treating the said act as satisfying the definition of 'public nuisance' as
defined under Section 268 of the Indian Penal Code.

 The high court held that the tobacco smoking in public places falls within the
mischief of the penal provisions relating to "public nuisance" as contained
in the Indian Penal Code and also the definition of "air pollution" as contained
in the statutes dealing with the protection and preservation of the
environment, in particular the Air (Prevention and Control of Pollution) Act,
1981.
 Public Nuisance

 Municipal Council, Ratlam v. Vardhichand and others AIR 1980 SC 1622

 Residents of a locality within limits of Ratlam Municipality tormented by
stench and stink caused by open drains and public excretion by nearby slum-
dwellers moved the Magistrate under S. 133 of the Criminal Procedure Code
to require the Municipality to do its duty to towards the members of the
public. The Magistrate gave directions to the Municipality to draft a plan
within six months for removing of the nuisance.
 The key question the Court had to answer was whether by affirmative action
a court could compel a statutory body to carry out its duty to the community
by constructing sanitation facilities at great cost and on a time-bound basis as
munciplaity was expressing their inability due to paucity of funds.
 Hon’ble SC appreciate the use of S. 133 of Cr.P.C. by SDM and interpreted this
nuisance as violation of Article 21 of the residents.
 Public Nuisance

 Carrying on trade which cause offensive smells, Malton Board of Health v.

Malton Manure Co., (1879) 4 Ex D 302;

 Carrying on trade which cause intolerable noises, Lambton v. Mellish, (1894)

3 Ch 163;

 Organizing a pop festival, which caused noise and a large amount of traffic
(Attorney General of Ontario v. Orange, (1971) 21 DLR 257);

 Blocking a canal (Rose v. Miles (1815) 4 M & S 101);

 Public Nuisance

 Queuing on a highway, so causing an obstruction (Lyons v. Gulliver (1914) 1

Ch 631);

 Picketing on a highway, Thomas v. NUM (South Wales Area) (1985) 2 All ER 1;

 Interference with navigation rights in the River Thames (Tate and Lyle
Industries v. GLC (1983) 1 All ER 1159) ;
 Public Nuisance

 Public nuisance can only be subject of one action, otherwise a party might be
ruined by a million suits. Further, it would give rise to multiplicity of litigation
resulting in burdening the judicial system.

 Generally speaking, Public Nuisance does not give rise to civil action.
However, in certain cases action can be taken under tort law.
 Public Nuisance

 In the following circumstances, an individual may have a private right of

action in respect a public nuisance.

1. He must show a particular injury to himself beyond that which is suffered by

the rest of public i.e. he must show that he has suffered some damage more
than what the general body of the public had to suffer.

2. The injury must be shown to be of a substantial character.

 Public Nuisance

 Castle v St Augustine’s Links (1922) 38 TLR 615

 The plaintiff car driver was struck by a golf ball hit from the thirteenth tee of
the defendants’ golf course as he was driving on the highway. Balls frequently
went over the highway. This amounted to a nuisance. The class of persons
affected were highway users.
 The plaintiff had suffered special damage, so the defendants were liable in
public nuisance

 Note: If the claimant had been on his own land the action would have been in
private nuisance.
 Many public nuisance cases are concerned with the highway. The usual action
is concerned with obstructing the highway. If the highway is unreasonably
obstructed this will amount to a public nuisance. The following case brings
out the distinct nature of public nuisance.

 Dymond v Pearce [1972] 1 QB 497

 The defendant left his lorry parked on the highway with its parking lights on
and it was visible from a distance of 200 yards. The plaintiff motor cyclist ran
into the lorry. It was held that the defendant had committed a public nuisance
but was not liable for the plaintiff’s injuries, as these were caused entirely by
the plaintiff’s negligence.
 Public Nuisance

 Without Proving Special Damage

 In India under Section 91 of the Civil Procedure Code, allows civil action
without the proof of special damage. It reads as follows:

 “S. 91. [(1) In the case of a public nuisance or other wrongful act
affecting, or likely to affect, the public, a suit for a declaration and
injunction or for such other relief as may be appropriate in the
circumstances of the case, may be instituted
 by the Advocate General, or
 with the leave of the court, by two or more persons, even though no
special damage has been caused to such persons by reason of such public
nuisance or other wrongful act.]

 (2) Nothing in this section shall be deemed to limit or otherwise affect

any right of suit which may exist independently of its provisions.
 Public Nuisance

 This section also includes other wrongful acts affecting public besides public
nuisance, It widens the scope of the section to incorporate various situation
although which may not fall under the definition of nuisance yet cause of
discomfort of inconvenience to the public.
PRIVATE NUISANCE
 Private Nuisance

 Winfield has defined Private nuisance as unlawful interference with a

person's use or enjoyment of land, or some right over, or in connection with
it.

 In contrast to public nuisance, private nuisance is an act affecting some

particular individual or individuals as distinguished from the public at large.

 The remedy in an action for private nuisance is a civil action for damages or
an injunction or both and not an indictment.
 Characteristics of a Private Nuisance

A private nuisance has the following key elements:

1. The claimant must have an interest in the land.

2. There must be unreasonable or unlawful use of the land by the defendant

which is the source of the nuisance.

3. Such unreasonable or unlawful use must result into annoyance or

discomfort or inconvenience to the claimant which the law considers as
substantial or material.

4. The claimant must suffer some harm/damage.

 Claimant in Private Nuisance

 Who can be the Claimants?

 Private nuisance is historically concerned with the regulation of land use between
neighbours.

 A claimant must have an interest in the land affected by the nuisance in order
to make a claim of private nuisance.

 In effect, an ‘interest in land’ means a person must own or have a right over the
land. Owners, leaseholders or tenants have an interest in the land and can make a
claim of private nuisance.

 This is reflected in the rule that the claimant in an action for private nuisance has
to have an interest in the land or exclusive possession of the land which is
affected in order to be able to sue.
 Claimant in Private Nuisance

Note: In effect a person who is in exclusive possession of the land is regarded as

having an interest in the land.

Foster v Warblington UDC (1906)

Facts: The claimant was an oyster merchant who for many years had been in
occupation of oyster beds artificially constructed on the foreshore. The claimant
excluded everybody from the oyster beds, and nobody interfered with his
occupation of the oyster beds or his removal and sale of oysters from them.
However the claimant could not prove ownership of the oyster beds.
Held: The claimant could bring an action in private nuisance caused by the
discharge of sewage by the defendants into the oyster beds. The claimant was
able to bring a claim of private nuisance because he was in exclusive possession
of the land even though he could not prove his title to it.
 Claimant in Private Nuisance

 Malone v Lasky [1907] 2 KB 141

 The husband of the plaintiff in that case was employed by a company which allowed
him to occupy a house as a mere licensee. Neither he nor the plaintiff had any
proprietary interest in the house. The plaintiff was injured when a bracket fell on her
while she was in the washroom. The accident was caused by vibrations from the
defendants' operations in the house next door. She sued in nuisance and negligence,
but failed in both.

 In deciding the nuisance claim, Sir Gorell Barnes P stated:

 …….in my opinion the plaintiff has no cause of action ... Many cases were cited in the
course of argument in which it had been held that actions for nuisance could be
maintained where a person's rights of property had been affected by the nuisance,
but no authority was cited, nor in my opinion can any principle of law be formulated,
to the effect that a person who has no interest in property, no right of occupation in
the proper sense of the term, can maintain an action for nuisance.
 Claimant in Private Nuisance

 The rule came under attack and in Khorasandjian v Bush [1993] 3 WLR 476
the Court of Appeal held that an injunction to prevent pestering telephone
calls could be granted to the daughter of the owner of the house to which the
calls were made.
 Claimants in Private Nuisance

 Khorasandjian v Bush [1993] 3 WLR 476

 The daughter of a property owner brought an action to obtain an injunction

against a man who was harassing her including making nuisance telephone
calls. The county court granted an injunction preventing the defendant from
‘harassing pestering or communicating’ with the claimant..

 However, it was argued by the defence that the current wording of the
injunction did not reflect any known tort.

 The Court of Appeal held that the wording of the injunction should remain
unaltered.
 Claimant in Private Nuisance

• As part of their reasoning they argued that the telephone harassment was
covered by the tort of private nuisance because it was an actionable
interference with her ordinary and reasonable use and enjoyment of
property where she is lawfully present.

• The Court of Appeal was particularly concerned that at that time there was
no alternative action the woman could take.

• Note: Now, woman are able to obtain protection under ‘the Protection from
Harassment Act 1997.’
 Claimant in Private Nuisance

 Hunter and Others v Canary Wharf Ltd [1997]

 Hunter and Others v London Docklands Corporation [1997]

In both cases the claimants included not only property owners and tenants but
members of their families and lodgers. Both cases were heard by the House of
Lords at the same time. In the Canary Wharf case the claimants sought damages
for private nuisance in respect of interference with the television reception at
their homes caused by the construction of Canary Wharf. The case of London
Docklands Corporation concerned damage caused by dust created during the
construction of a road. Both cases included actions for nuisance.

The House of Lords had to decide which persons could bring an action in private
nuisance. They decided that only householders with a right to land could
commence an action in private nuisance not their family members.
 Claimant in Private Nuisance

 Hunter v Canary Wharf Ltd [1997] 2 All ER 426

 Two separate group actions were brought arising out of the redevelopment of
the London Docklands. Damages were claimed in nuisance for interference
with television signals caused by the building of the Canary Wharf tower and
in nuisance for dust created by the construction of the Limehouse link road.

 The House of Lords considered two questions on appeal: (i) whether

interference with television reception is capable of amounting to an
actionable nuisance and (ii) whether it is necessary to have an interest in the
property affected to claim in private nuisance and, if so, what interest.
 Claimant in Private Nuisance

 The court held that occupation of the property as a home was not sufficient.
An action may be brought by the owner or by the tenant or by a person who
enjoyed exclusive possession but lacked any proprietary interest. No action
can be brought by a licensee (But, why?)

 Note: If the damage in issue is physical damage to property then the person
with the right to sue ought to be the person with the obligation to repair or
the burden of repairing the property. A licensee will rarely be in this position.
 Claimant in Private Nuisance

Lord Goff commenting on the Court of Appeal’s decision in Khorasandjian v Bush

[1993]:

“In truth, what the Court of Appeal appears to have been doing was to exploit
the law of private nuisance in order to create by the back door a tort of
harassment which was only partially effective in that it was artificially limited
to harassment which takes place in her home. I myself do not consider that this
is a satisfactory manner in which to develop the law, especially when, as in the
case in question, the step so taken was inconsistent with another decision of the
Court of Appeal, viz. Malone v. Laskey, by which the court was bound…”
 Claimant in Private Nuisance

 It was also held that any rights which are granted by the Matrimonial Homes
Act 1983, by which a spouse who lacks any proprietary interest may apply to
the court to be granted exclusive possession of the property, remain
contingent until they are recognised by a court and only at that point give
locus standi for a nuisance action.
 Claimant in Private Nuisance

 The decision may be open to challenge under UK’s the Human Rights Act
1998. No distinction is made under Article 8(1) of the Convention (providing
that everyone has the right to respect for his home) between applicants with
a proprietary interest in land and those without.

 It provides that:
 Everyone has the right to respect for his private and family life, his home, and
his correspondence.
 Defendant In Private Nuisance

 The law concerning defendants in private nuisance actions is complex and will
be divided into three categories of defendant.

1. Creators
 The creator of a nuisance may always be sued even though they are no longer
in occupation of the land from which the nuisance originates.
 It is necessary that the defendant should have been able to foresee damage
of the relevant type when the act alleged to be a nuisance occurred.
 Defendant In Private Nuisance

2. Occupiers
 In most nuisance cases it will be the occupier of the land from which the
nuisance originates who is sued. The occupier is liable for nuisances created
by themselves, and by their servants (on the basis of vicarious liability), but
not for nuisances created by an independent contractor, unless the occupier
is under a non-delegable duty or the contractor is working on the highway
and creates a danger to highway users.

 Historically, an occupier was not liable for nuisances created by trespassers or

acts of nature. This was in line with the view that ownership of land was a
source of rights rather than duties. Recent case law has changed this view,
imposing duties of affirmative action on landowners for dangers emanating
from their land.
 Defendant In Private Nuisance

 Sedleigh-Denfield v O’Callaghan [1940] AC 880

 A trespasser installed piping in a ditch on the respondent’s land. Three years
later the pipe became blocked and the appellant’s land was flooded. One of
the respondent’s servants had cleaned out the ditch twice a year. As the
respondents were presumed to know of the danger and had done nothing to
abate it they were liable in nuisance. Liability in these circumstances would
arise where the occupier, with knowledge of the existence of the nuisance,
adopted it for his own purposes or continued it by failing to take steps to
avoid it.

 Note: An occupier is liable for nuisances caused by a trespasser if he is aware of the

presence of the nuisance on their premises and has failed to take reasonable steps to
abate the nuisance. The standard of reasonableness is a subjective one. However, the
duty is limited by the occupier’s ability (physical and financial) to abate the nuisance
and by its foreseeable extent. In the case of a latent defect the occupier is not liable
for failure to make further investigations which would have revealed the defect.
 Defendant In Private Nuisance

3. Landlords
 The law on whether a landlord is liable for a nuisance is complex. The basic
principle is that the landlord will not be liable as they have parted with
control of the land. There are a number of exceptions to this principle.
 Where a nuisance existed at the time of the letting the landlord will be liable
if they knew or ought to have known of the nuisance before letting.
 They will also be liable if they can be said to have authorised the nuisance.

 Harris v James (1876) 45 LJQB 545

 A field was let by S to J for J to work it as a lime quarry and to set up lime kilns.
The plaintiff complained of smoke from the kilns and nuisance caused by
blasting in the quarrying. J was liable as occupier and S for authorising the
commission of a nuisance.
 Defendant In Private Nuisance

 Southwark London Borough Council v Mills [1999] 4 All ER 449

 The landlords let flats in a communal block which had very poor
soundproofing resulting in the noises of everyday living being audible through
the walls. It was held by the House of Lords that the normal use of a
residential flat cannot be a nuisance and as the tenants were not liable for
nuisance the landlord could not be liable for authorising nuisance.
 Interference with use and enjoyment

 Private nuisance is a balancing act between the defendant’s right to use their
land as they wish and the claimant’s right to enjoy their land without
interference. Nuisance may be with respect to property or personal physical
discomfort.

 The claimant must establish that the defendant has caused a substantial
interference with their use or enjoyment of their land.

 The interference may take a number of forms but some of the commonest
are; physical damage to the claimant’s land; substantial interference with
enjoyment of land through smells, vibrations, noise, dust and other
emissions; encroachment onto land by roots or branches

 Note: No account is taken of trivialities.

 Interference with use and enjoyment

 Whether the interference amounts to a nuisance is a question for the court.

Normally this will be determined by applying a reasonableness test.

 But where the interference causes material damage to the claimant’s land,
the defendant will be liable unless the claimant is over-sensitive or one of the
defences to nuisance applies.
 Unreasonable Use of Land

The use of the land which is the source of the nuisance must be unreasonable
for a claim of private nuisance to succeed.

In deciding whether the use of land is unreasonable, the courts will consider
factors such as:

 The sensitivity of the claimant

 The duration of the nuisance
 The character of the area
 The reasonable foreseeability of the type of damage and
 Any malice on the part of the defendant.
 Unreasonable Use of Land

The standard of tolerance is that of the reasonable person and ordinary land
use.

Abnormally sensitive claimants or using land for an unusual purpose that makes
it sensitive to disruption, are unlikely to succeed in a claim for private nuisance.
 Unreasonable Use of Land

 St Helens Smelting Co v Tipping (1865) 11 HL Cas 642

 The plaintiff bought an estate near to the defendant’s copper smelting works.
Fumes from the works damaged the plaintiff’s trees and crops.
 The court drew a distinction between nuisances causing material damage to
the land and those which caused sensible personal discomfort. In the latter
case the question of locality was relevant.
 As the plaintiff’s land had suffered material damage, the fact that the locality
was a manufacturing area was irrelevant and an injunction was granted.

 Note: The problem with this decision is that it is difficult to determine what is
meant by material damage. Any substantial interference with residential land
may lower its value, but unless the land itself is damaged the locality factor
may defeat the claimant’s action.
 Unreasonable Use of Land

 The effect of the majority view in this case is that a claimant in a nuisance
action claims on behalf of the land, whether the action falls on the material
damage or amenity side.
 This means that in order to establish damage they must show damage to the
land in capital or amenity value.
 The Character of the Area

 The character of the area in which the alleged nuisance occurred is relevant in
deciding whether there is a private nuisance.

 Whether anything is a nuisance or not is a question to be determined, not

merely by an abstract consideration of the thing itself, but in reference to its
circumstances; what would be a nuisance in Belgrave Square would not
necessarily be so in Bermondsey; and where a locality is devoted to a
particular trade or manufacture carried on by the traders or manufacturers in
a particular and established manner not constituting a public nuisance,
Judges…would be justified in finding, and may be trusted to find, that the
trade or manufacture so carried on in that locality is not a private or
actionable wrong.
 The Character of the Area

 Sturges v Bridgman [1879] 11 Ch D 852

 A confectioner had for more than 20 years used industrial pestles. This caused
no interference until the plaintiff doctor built an extension consulting room in
his garden, adjacent to the confectioner’s premises. At this stage the noise
and vibration were alleged to be a nuisance.
 The doctor’s action succeeded.
 The court took into account the fact that the area consisted largely of doctors’
consulting rooms and stated that that which would be a nuisance in Belgrave
Square would not necessarily be so in Bermondsey.

 Note: The effect of this rule is to make it difficult for those who live in
industrial areas to succeed..
 The Character of the Area

 But we have few exceptional cases:

 Rushmer v Polsue & Alfieri Ltd [1906] 1 Ch 234

 The plaintiff milkman lived in an area of London which contained a large
number of printing companies. He found it difficult to sleep at night and
sought an injunction for nuisance by noise. The injunction was granted
although the plaintiff was the only resident, as the noise went beyond the
boundaries of what was acceptable.

 Note: It is possible for the nature of a locality to change with time. When this
happens the change is normally dealt with by planning permission but what is
the relationship between planning law and nuisance?
 Duration

The duration and time of the alleged nuisance can determine whether a private
nuisance has been created.

 The longer the interference continues the more likely it is to be

unreasonable.

 The duration principle raises difficulties with one-off nuisances where there is
an isolated or single escape. These occur where there is a state of affairs on
the defendant’s land which causes damage on one occasion to the claimant.

 The question frequently arises in connection with building works. The courts
have laid down a principle that provided these are carried on with reasonable
skill and care and interference is minimised, then no nuisance is committed.
 Duration

 In Bolton v Stone [1951] 1 All ER 1078 the isolated escape of a cricket ball
from the ground was held not to be a nuisance.
 Whether there is a state of affairs on the land sufficient to give rise to liability
in nuisance will depend on the frequency with which balls escape. This is also
a factor in determining negligence.
 Sensitivity

 If the damage is due more to the sensitivity of the claimant’s property than
to the defendant’s conduct then no nuisance is committed.

 Robinson v Kilvert (1888)

The defendant let a floor of his property to a tenant to be used as a paper
warehouse, retaining the room immediately below. The tenant brought an
action to prevent his landlord from heating the room, on the grounds that the
rising heat dried his special brown paper, making it less valuable. Ordinary paper
would not have been damaged.
There was no private nuisance. The Court of Appeal argued that: “[a] man who
carries on an exceptionally delicate trade cannot complain because it is injured
by his neighbour doing something lawful on his property, if it is something which
would not injure anything but an exceptionally delicate trade.” Per Lopes, L.J.
 Sensitivity

 Bridlington Relay Co v Yorkshire Electricity Board [1965] Ch 436

 The defendant’s overhead power cables interfered with the transmissions
from the plaintiff’s television booster mast. The plaintiff’s action failed as
their activity was held to be sensitive and television reception, as a leisure
activity of little value to its users, was not protected by nuisance.

 McKinnon Industries Ltd v Walker [1951] 3 DLR 577

 The defendant’s factory emitted sulphur dioxide which damaged the
plaintiff’s commercially grown orchids.
 As the interference would have damaged non-sensitive plants, the plaintiff
was able to recover the full extent of the loss, including the damage to the
sensitive orchids.
 Public utility

 Can the defendant advance the argument that although their activity may be causing
damage to the claimant, it is in the public interest that they be allowed to continue?
The traditional view is that public interest is irrelevant to the question of private rights
and will be ignored.

 The modern view would appear to turn on what remedy is being sought. In deciding
whether or not to grant an injunction, the court may take into account public utility.

 Miller v Jackson [1977] QB 966

 Cricket balls frequently entered the plaintiff’s garden from the adjacent cricket club,
despite the attempts of the club to prevent this. The Court of Appeal held by 2–1 that
a nuisance had been committed, but refused by 2–1 to grant an injunction on the
grounds of public utility. The court felt that the utility of the club to the community
outweighed the plaintiff’s interest.
 Malice

 The bad motive or malice of the defendant may make what would otherwise
have been reasonable conduct, unreasonable and a nuisance.

 Christie v Davey [1893] 1 Ch 316

 The plaintiff and defendant lived in adjoining houses. The plaintiff gave music
lessons in the house. This annoyed the defendant who responded by banging
trays on the wall and shouting while the lessons were in progress. The
plaintiff was held entitled to an injunction. The defendant’s malice made his
conduct unreasonable and a nuisance
 Malice

 Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468

 The plaintiff bred silver foxes. The defendant, after an argument, ordered
guns to be fired on his own land but close to the plaintiff’s land. His intention
was that the noise would prevent the foxes from breeding. An injunction was
granted to restrain the defendant. What would otherwise have been a
reasonable act was a nuisance because of his malice.
 Damages

 In public nuisance actions the claimant must prove special damage in order to
succeed. Damage must usually be proved in a private nuisance action but may
be presumed.

 Where the nuisance causes damage to the land, the measure of damages will
usually be the depreciation in value of the land. Where the nuisance consists
of interference with use and enjoyment, then assessment of damages
presents problems.

 Lord Hoffmann in Hunter v Canary Wharf Ltd [1997] 2 All ER 426 expressly
disapproved of the approach to quantify damages in private nuisance cases,
as nuisance is a tort against land and not against the person. He suggested
that damages should be fixed by the diminution in capital value of the land as
a result of the amenity damage.
 Nuisance and fault

 Is it necessary for the claimant to prove that the defendant was negligent in
order to succeed in a nuisance action? If this was the case, the tort of
nuisance would become redundant, as all actions would be brought in
negligence.

 There is a distinction between nuisance and negligence. In negligence the

court will look at the way the defendant did something, whereas in nuisance
the court is looking at a protected interest of the claimant and balancing it
against what the defendant did.
 Nuisance and fault

 Example:
 Take a factory which is built with the latest state of the art pollution control
machinery. Despite this, the factory still emits foul smells which nearby
residents allege amount to a nuisance and/or negligence.

 In the negligence action the court will have to ask whether the defendant
took all reasonable care. If they used the best available equipment and
maintained it properly, then the negligence action will fail.

 In the nuisance action, the court will have to balance the interests of the two
parties using the tests set out above. The question is whether the defendant
acted reasonably, not whether they used all reasonable care. The court could
find that the defendant’s activity was unreasonable and grant an injunction in
nuisance.
 Remedies

 Injunction:
 The injunction is the primary remedy in nuisance actions and its objective is
to force the defendant to cease their activities. The injunction may be
perpetual and terminate the activity or limit it to certain times.
 It is possible for the court to suspend the injunction and give the defendant
the opportunity to eliminate the source of the complaint. Injunctions are
equitable remedies and as such are not available as of right.
 Injunctions are equitable remedies and as such are not available as of right.
The question of when the court should exercise its discretion to refuse an
injunction was considered in the following case.
 Remedies

 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287

 Vibration and noise were caused by the defendant’s activities. The defendant
claimed that the plaintiff should be limited to damages as the award of an
injunction would deprive many Londoners of electricity. The court held that
the discretion not to award the injunction should be exercised only in
exceptional circumstances:

1) where the injury to the plaintiff’s legal right is small; and

2) is capable of being estimated in money terms; and
3) is one which can be adequately compensated by a small money payment;
and
4) it would be oppressive to the defendant to grant an injunction.
 Remedies

 Abatement:
 This remedy of abatement is a form of self-help and consists of the claimant
taking steps to stop the nuisance, for example, by cutting off the branches of
overhanging trees or unblocking drains.
 Where the exercise of the remedy requires the claimant to enter another
person’s land, then notice must be given, otherwise the abator will become a
trespasser. It is fair to say that the law does not usually favour this remedy
and in most cases it is not advisable.

 Damages:
 In public nuisance actions the claimant must prove special damage in order to
succeed in getting compensation.
 Defence

 Following are the valid defence to an action for nuisance:

 Prescription
 Statutory Authority
 Defence

 Prescription
 A title acquired by use and time, and allowed by Law; as when a man claims
any thing, because he, his ancestors, or they whose estate he hath, have had
possession for the period prescribed by law. [Section 26, Limitation Act;
Section 15 Easements Act]

 Three things are necessary to establish a right by prescription:

1. Use and occupation or enjoyment;

2. the identity of the thing enjoyed;
3. that it should be adverse to the rights of some other person.
 Defence

 A special defence available in the case of nuisance is prescription if it has

been peaceable and openly enjoyed as an easement and as of right without
interruption and for twenty years.
 After a nuisance has been continuously its existence for twenty years
prescriptive right to continue it is acquired as an easement appurtenant to
the land on which it exists.
 On the expiration of this period the nuisance becomes legalised ab initio, as if
it had been authorised in its commencement by a grant from the owner of
servient land.
 The time runs, not from the day when the cause of the nuisance began but
from the day when the nuisance began.

 Note: Exception is Sturges Vs. Bridgman case

 Defence

 Statutory Authority
 Where a statute has authorised the doing of a particular act or the use of land
in a particular way, all remedies whether by way of indictment or action, are
taken away; provided that every reasonable precaution consistent with the
exercise of the statutory powers has been taken.

 During the nineteenth century it became common for industrial operators to

obtain the passing of a private Act of Parliament to give them authority to
commit a nuisance, provided that there was no negligence on their part.
This was done by the railway companies, as the operation of steam trains
would cause a nuisance by smoke, noise and vibration.
 Defence

 Metropolitan Asylum District Board v. Hill, (1881) 6 AC 193 (HL)

 An action for nuisance was brought by the owners of land adjacent to a
smallpox hospital in Hampstead against the management of the hospital. It
was argued that Smallpox hospital was a nuisance per se because, even if the
hospital had been managed with due care, the disease of those within would
escape to infect those living in the vicinity. The Court ordered in favour of the
owners of land.
 Defence

 Allen v. Gulf Oil Refining Ltd., (1981) 1 AC 1001

 An oil refinery was causing great inconvenience and annoyance to local
residents who complained of unpleasant odours, noxious fumes, vibrations,
heavy traffic and loud noise in their previously quiet rural setting.
 While allowing the defence of statutory authority the court held that where
the Parliament has expressly or impliedly authorized the construction of
works (an oil refinery), that authorization carries with it the right to do all that
is necessary for the authorized purpose, without the fear of a claim for
nuisance being brought
 Defence

 There are a number of issues which might be thought to be defences but

which are generally not.
1. Plaintiff came to the nuisance
e.g. if a man knowingly purchases an estate in close proximity to a smelting
works his remedy, for a nuisance created by fumes issuing therefrom is not
affected.

 Sturges v Bridgman (1879) 11 Ch D 852 (For facts see above under ‘Locality’.)
The confectioner argued that when the doctor built his extended consulting
room he was aware of the noise and had therefore come to the nuisance. The
court rejected this argument as this was not a recognised defence in
nuisance.
 Defence

2. Nuisance due to many:

Where the nuisance is caused by a number of persons, it is not a defence for
the defendant to prove that their contribution alone would not have amounted
to a nuisance.

3. It is no defence that the defendant is merely making a reasonable use of his

own property.

4. A nuisance may be the inevitable result of some or other operation that is of

undoubted public benefit, but it is an actionable nuisance nonetheless.
No consideration of public utility should deprive an individual of his legal rights
without compensation.
 Defence

5. That the place from which the nuisance proceeds is the only place suitable for
carrying on the operation complained of.
If no place can be found where such a business will not cause a nuisance, then it
cannot be carried out at all, except with the consent or acquiescence of
adjoining proprietors or under statutory sanction.