NUISANCE
Under the common law, persons in possession of real property (either land
owners or tenants) are entitled to the quiet enjoyment of their lands. If a
neighbor interferes with that quiet enjoyment, either by creating smells,
sounds, pollution or any other hazard that extends past the boundaries of
the property, the affected party may make a claim in nuisance. It is closely
concerned with “protection of the environment’.
Forms of nuisance.
Nuisances come in two forms: private and public.
Public Nuisance A public nuisance is an unreasonable interference with the
public's right to property. It includes conduct that interferes with public
health, safety, peace or convenience. The unreasonableness may be
evidenced by statute or by the nature of the act, including how long and how
bad the effects of the activity may be. In Gillingham Borough council vs
Medway (Chatham) Dock Co Ltd & Others (1991) Buckley J stated that
public nuisance is primarily concerned with the effect of the act complained
of (as opposed to its inherent lawfulness or unlawfulness) to the sufficient
number of the public.
Who may sue for public nuisance?
No civil action can be brought by a private individual for public nuisance.
The reason normally given is that it prevents multiplicity of actions. The
Attorney General may bring an action for an injunction (‘relator action’).
However, where any person is injured in some way peculiar to himself i.e if
he can show that he has suffered some special or particular loss over and
above the ordinary inconvenience or annoyance suffered by the public at
large, then he may sue in tort.
For the distinction between public and private nuisance see, · Sedleigh-
Denfield Vs O’Callaghan [1940] A.C 880 at 905,907,918, Arima Nantongo &
Others vs Hiral Mohammed [1974] E.A 557; [1975] HCB 21, Arima Nantongo
& Anor vs Hiral Mohammed [1974] HCB 181, Tindarwesire vs Kabale Town
Council [1980] HCB 33, Kitamirike vs Mutagubya [1965] EA 401, Gillingham
Borough Council vs Medway Dock Co Ltd [1992]3 ALLER 923.
Private nuisance
A private nuisance is simply a violation of one's use of quiet enjoyment of
land. It does not include trespass. Private nuisance traditionally was, and is
still is confined to invasions of the interest in the use and enjoyment of land,
although occasionally, an occupier may recover for incidental injuries
sustained by him in exercise of an interest in land. Justice Lugayizi in Dr.
Bwogi Richard Kanyerezi vs The management Committee Rubaga Girls
School, High Court Civil appeal No.3 of 1996 quoting Winfield on tort 8th
Edition pp 353-367 stated that “a nuisance is private where it exclusively affects
a private person and not a sizeable number of the community where it occurs. The
learned author of the said book described a nuisance as an unlawful interference with
a person’s use or enjoyment of land. Such interference in essence being either a
continuous or recurrent nature and usually stenches and smoke would qualify under
that description. Whether a nuisance is actionable or not will depend upon a variety
of considerations especially the character of the defendant’s conduct and the
balancing of conflicting interests ( ie the right of the defendant to enjoy his property
as he wishes as against the right of his neighbuors to enjoy theirs without
interference)”
Scot L.J in Read vs Lyons & Co. Ltd [1945]K.B 216 at p.236 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 Cunard v Antifyre Ltd, 1933] 1 KB 551 Talbot J, at p 557, succinctly
defined private nuisances as interferences by owners or occupiers of
property with the use or enjoyment of neighbouring property. “Property”
here means land, and should be amplified to include rights over it, or in
connection with it.
If a nuisance is widespread enough, but yet has a public purpose, it is often
treated at law as a public nuisance.
Elements of private nuisance
i. The plaintiff must possess proprietary or possessory interest
ii. The act complained of should be unlawful
iii. There must be an overt act (act causing the nuisance)
iv. The plaintiff must also prove that nuisance emanated from the
defendant’s property
v. The interference must be both substantial and unreasonable.
In Watt vs Jamieson (1954) SC (Scottish Court) 56, President Cooper
stated that “if any person so uses his property as to occasion serious
disturbance or substantial inconvenience to his neighbour’s property, it
is in general case irrelevant as a defence to plead merely that he was
making a normal and familiar use of his own property. The balance in all
such cases has to be held between the freedom of a proprietor or possessor
to use his property as he pleases and the duty on a proprietor not to inflict
material loss or inconvenience on adjoining proprietors or adjoining
property. That private nuisance is an invention of the plaintiff’s interest
or right in possession and enjoyment of land.
The essence of nuisance is a state of affairs that is either continuous or
recurrent, a condition or activity which unduly interferes with the use or
enjoyment of land See also; · Lord Goddard C.J’s judgment in Howard vs
Walker 1947] 2 ALLER 197 at 199 Thus, the plaintiff must have possessory/
proprietary interest in order to sue in nuisance.
Reasonableness
This implies the reasonableness of the defendant’s conduct “according to the
ordinary usage of mankind living in … a particular society”, per Lord
Wright in Sedleigh-Denfield Vs O’Callaghan [1940] A.C 880 at 903.
Reasonableness signifies what is legally right between the parties taking into
account of all circumstances of the case. After balancing the competing
interests of the parties, the court considers whether the interference was
excessive by any standards. The fact that the defendant took all reasonable
care and reduced it to a minimum provides no defence. Lord Wright in
Sedleigh-Denfield Vs O’Callaghan [1940] A.C 880 at 903 further stated that,
a balance has to be maintained between the right of the occupier to do what
he likes with his own and the right of his neighbour not to be interfered with.
It is impossible to give any precise or universal formula, but it may broadly
be said that a useful test is perhaps what is reasonable according to the
ordinary usages of mankind living in society, or, more correctly, in a
particular society · See also ;Rapier vs London Tramways Co. [1893] 2 Ch.
588.
It is not every noise, smell or dust that irritates your neighbour that will
constitute nuisance. Bramell B. in Bamford vs Turney (1862) 3 B.& S 66, he
stated that nuisance is premised on the protection of such interests with an
attempt to balance the competing interests or rights of neighbours; a rule of
‘give and take’. That liability is imposed only in those cases where harm or
risk to one is greater than he ought to be required to bear under the
circumstances.
Considerations for unreasonableness.
In determining whether the defendant’s action is unreasonable, certain
considerations have to be borne in mind;
a) The extent of the harm and the nature of the locality.
In the case of St. Helen’s Smelting Co. vs Tipping (1865)11 H.LC 642. Weir,
Casebook, 4th Ed. P. 344, Lord Westbury L.C stated that, “if a man lives in a
town, it is necessary that he should subject himself to the consequences of
those operations of trade which may be carried on in his immediate locality,
which are necessary for trade and commerce, and also for enjoyment of
property, and for the benefit of the inhabitants of the town and of the public
at large” Therefore, interference which may be permissible in one area may
not be permissible in another. See, Andrea vs Selfridge & co [1938] Ch.1
As such, most jurisdictions now have a system of land use planning (e.g.
zoning) that describes what activities are acceptable in a given location.
Zoning generally overrules nuisance. For example, if a factory is operating
in an industrial zone, neighbours in the neighbouring residential zone
cannot make a claim in nuisance. Jurisdictions without zoning laws
essentially leave land use to be determined by the laws concerning nuisance.
Veale J in Halsey vs Esso Petroleum Co [1961]1 W.L.R 683 stated that the
magnitude of the harm and in some cases the nature of the locality are
circumstances to be considered in determining whether the defendant has
acted unreasonably. The law does not regard trifling inconveniences;
everything is to be looked at from a reasonable point of view.
b) Utility of the defendant’s conduct.
Since nuisance is the law of give and take, the court is inevitably concerned
to some extent with the utility or general benefit to the community of the
defendant’s activity.
c) Abnormal sensitivity.
In considering what is reasonable, the law does not take account of abnormal
sensitivity in either persons or property. The standard of deciding whether
a particular use of land exposes others to an unreasonable interference is
objective, in the sense that it has regard to reactions of normal persons in the
locality, not to the idiosyncrasies of the particular plaintiff.
Read · Relay vs Yorkshire Electricity Board [1965] Ch.436 · Mombasa Auto
Services vs South British Insurance Co. [1950] 17 EACA 72.
In the case of Robinson vs Kilvert (1889) 41 CH.D 88, the defendant began
to manufacture paper-boxes in the cellar of a house, the upper part of which
was in occupation of the plaintiff. The defendant’s business required hot and
dry air and he heated the cellar accordingly. This raised temperature on the
plaintiff’s floor and dried and diminished the value of brown paper which
the plaintiff warehoused there; but it did not inconvenience the plaintiff’s
workmen nor would it have injured paper generally. It was held that the
defendant was not liable in nuisance. 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 exceptionally delicate trade”.
Who can sue in private nuisance?
The general principle is that title is the basis for an action in nuisance. Lord
Goff in Thompson Swab vs Ostak [1956] WLR 335 stated that, the essence
of the law of nuisance is about real property. Thus, a person with no interest
in land has no right of occupancy and cannot sustain an action in nuisance.
A person who has merely the use of the land without either the possession
of it or any other proprietary interest in it e.g a mere licensee on the land, a
lodger, or a guest cannot sustain an action in nuisance. See Hunter vs Canary
Wharf Ltd 1997] 2 WLR 684. Lord Wright in Sedleigh-Denfield Vs
O’Callaghan [1940] A.C 880 at 902-903 stated that “He alone has a lawful claim
who has suffered an invasion of some proprietary or other interest in land” That the
ground of responsibility is the possession and control of the land from which
the nuisance proceeds.
Who can be sued?
a) The creator of the nuisance;
Whether or not he is in occupation of the land on which nuisance originates
and it is no defence that the land is now occupied by someone else and that
he has no power to abate the nuisance without committing trespass.
Creation may be construed to include continuing nuisance when you should
have abated it if in occupation of the premises where it originates. In
Sedleigh-Denfield Vs O’Callaghan, Lord Atkin stated that, “In the context
in which it is used, “continued” must indicate mere passive continuance. If
a man uses on premises something which he finds there, and which itself
causes a nuisance by noise, vibration, smell or fumes, he is himself, in
continuing to bring into existence the noise, vibration, smell or fumes,
causing a nuisance. Continuing, in this sense, and causing are the same
thing. It seems to me clear that, if a man permits an offensive thing on his
premises to continue to offend—that is, if he knows that it is operating
offensively, is able to prevent it, and omits to prevent it—he is permitting
the nuisance to continue. In other words, he is continuing it”
Read Southport Corporation vs Esso Petroleum Co. Ltd [1956] A.C 218,225,
· Hall vs Beckenham Corporation [1949] 1.K.B 716,728
b) The occupier:
The occupier of the premises where nuisance exists is in general liable during
the period of his occupancy. It is simple where he himself created the
nuisance, but further questions arise where it originated;
(i) with someone lawfully on the premises; or
(ii) with a trespasser or as a result of an act of God; or
(iii) with someone from whom the occupier acquired the property.
Rowlatt J in the Division Court summaries this liability in Noble v
Harrison([1926] All ER Rep at p 287;[1926] 2 KB at p 338): The damage there
was caused by an overhanging tree with a latent defect and the decision was
against liability. His Lordship stated that; ”… a person is liable for a nuisance
constituted by the state of his property (i) if he causes it;(ii) if by neglect of
some duty he allows it to arise; and (iii) if, when it has arisen without his
own act or default, he omits to remedy it within a reasonable time after he
did or ought to have become aware of it.”
The position on whether an occupier is liable for nuisance created by a
trespasser or natural causes was clarified by Dixon J in Torette House
Proprietary Ltd v Berkman ((1940), 62 CLR 637 at p 652) that was approved
by the House of Lords in Sedleigh-Denfield v O’Callaghan[1940] AC 880.
It is to the effect that the occupier is liabile with regard to a hazard created
on his land by a trespasser, of which he has knowledge, when he fails to take
reasonable steps to remove it. This statement of the law has been adopted in
Salmond’s Law of Torts (5th Edn)(1920) pp 258–265: “When a nuisance has
been created by the act of a trespasser or otherwise without the act,
authority, or permission of the occupier, the occupier is not responsible for
that nuisance unless, with knowledge or means of knowledge of its
existence, he suffers it to continue without taking reasonably prompt and
efficient means for its abatement.”
If the occupier “adopts” or “continues” the nuisance, he will be liable if
damage is caused. This is the view taken of the decision in Barker v
Herbert[1911] 2 KB 633. Vaughan Williams LJ, at p 640, said that, to impose
a liability upon the possessor of land in such a case, there must be either the
creation of a nuisance by him or a continuance by him of a nuisance. Fletcher
Moulton LJ in Salsbury vs Woodland [1970] 1 Q.B 324 said, at pp 642, 643:
“In a case where the nuisance is created by the act of a trespasser, it is done
without the permission of the owner and against his will, and he cannot in
any sense be said to have caused the nuisance; but the law recognises that
there may be a continuance by him of the nuisance. In that case the gravamen
is the continuance of the nuisance, and not the original causing of it”.
Fletcher Moulton LJ added that the knowledge of servants and agents for
whom the owner is responsible must be attributed to him, and that cases
might arise in which his or their want of knowledge might be due to neglect
of duty.
Read Salsbury vs Woodland [1970] 1 Q.B 324 , · Matania vs National
Provisional Bank [1938] 2 ALLER 633, · Sedleigh-Denfield vs o’Callaghan
[1940] A.C 880 c)
c) The landlord:
The general rule is that a landlord is not liable for nuisance on the premises,
as he is not in occupation; the proper person to sue is the tenant. However,
the landlord may be liable,
i) If he has authorized nuisance
ii) If he knew of nuisance before letting.
iii) If he ought to have known of nuisance before letting
iv) Where the landlord reserves right to enter and repair or has
implied right to do so.
Read Goldman vs Hangrave [1967] 1 A.C 645 · Leakey vs National Trust
[1980] Q. 485
Tresspass to land and nuisance.
Nuisance is complementary to trespass which protects interest in exclusive
possession. The distinction is that trespass applies only to physical
intrusions by tangible objects or things whereas nuisance extends also to
invasions by noise, smell, vibrations and even high frequency interference
with television screens. See, John Fleming; Law of Torts, 6th Ed. 1983, pg
384-386.
The principle in Rylands vs Fletcher and nuisance.
The principle in Rylands V. Fletcher is quite distinct from nuisance since it
relates only to cases where there has been some special use of property
bringing with it increased danger to others, and does not extend to damage
caused to adjoining land owners as a result of the ordinary use of the land.
See, Richards vs Lothian at p. 180 and Sedleigh-Denfield Vs O’Callaghan
[1940] A.C 880(Viscount Maugham’s judgment).
DEFENSES TO NUISANCE
1. Legislative authority/statutory authority:
Where the alleged nuisance was caused by public authority acting under a
statutory power, the defendant may have this defence that the conduct is
permitted by statute. However, this defence will depend on the construction
of the particular statute in question. In Tate & Lyle Industries Ltd vs Greater
London Council [1983] 1 ALLER 1159, [1983] 2 AC 509, Lord Templeman
summarized this defence that, “it is now well settled that where parliament
by express direction or by necessary implication has authorized the
construction and use of the undertaking or works, that carries with it an
authority to do what is authorized with immunity from action based on
nuisance. The right of action is taken away… To this, there is made the
qualification, or condition, that the statutory powers are exercised without
negligence..”
His Lordship further stated that one of the reasons for this approach is that
parliament is presumed to have considered the interests of those who will
be affected by the undertaking of works and decided that the benefits from
those outweigh any necessary adverse side effects
See Marriage vs East Suffolk River Catchment Board [1950] 1 K.B 284 · A.G
vs Ivan Eriya Kafeero Nambule [1959] E.A 665 · Allen vs Gulf Refining Ltd
[1981] 1 ALLER 353,[1981] AC 1001
2. Planning permission:
Lord Templeman in Tate & Lyle Industries Ltd vs Greater London Council [1983]
1 ALLER 1159, [1983] 2 AC 509, stressed that the principle underlying the
defence of statutory authority should be extended to planning permission.
That parliament set up a statutory framework and delegated the task of
balancing the interests of the community against those of individuals and of
holding scales between individuals to the local planning authority.
There is a right to object to any proposed grant, provisions for appeals and
inquiries. There is an added safeguard for judicial review. If a planning
authority grants permission for a particular construction or use in its area, it
is almost certain that some local inhabitants will be prejudiced in quite
enjoyment of their properties. “
Can they (local inhabitants) defeat the scheme by bringing an action for nuisance?
If not why?”
Planning permission is not a license to commit nuisance and a planning
authority has no jurisdiction to authorise nuisance. However, a planning
authority can, through its development plans and decisions, alter the
character of a neighbourhood. This may have an effect of rendering innocent
activities which, prior to the change, would have been an actionable
nuisance. See Allen vs Gulf Refining Ltd [179] 3 ALLER1008 at 1020 ,[1980]
QB 156 at 174-175 per Cummimng-Bruce LJ, quoted with approval on
appeal.
3. Prescription:
A privilege to commit a private nuisance may be acquired by prescription,
if it would qualify as an easement See, Hulley v Silversprings Bleaching co.
[1922] 2 Ch.268
Prescription is a special kind of defence, as, if a nuisance has been peacefully
and openly been going on without any kind of interruption then the defence
of prescription is available to the party. Section 3(1) (a) of the limitations Act,
Cap 80.
4. Consent of the plaintiff
see; Kiddle vs City Business Properties Ltd [1942] 1 K.B 269, Miller vs
Jackson [1977] Q.B 966
5. Common benefit.
Read Bamford vs Turner (1862) 3B& S 66 (judgment of Bramwell B). His
Lordship questioned such a defence that if an act that causes nuisance is for
public benefit, the plaintiff cannot recover. That whenever a thing is for
public benefit as properly understood- the loss to the individuals of the
public who lose will bear compensation out of the gains of those who gain.
See also St. Helen’s Smelting Co. vs Tipping (1865) QB 66 6.
6. Inevitable accident, see;
Southport Corporation vs Esso Petroleum Co. Ltd [1956] A.C 218 at 226
7. Default of the plaintiff:
Read; East S.A Telegraph Co. Ltd vs Cape town Tramways Companies Ltd
[1902] A.C 381 at 393.
Remedies for nuisance
1. Injunction
An injunction is a judicial order restraining a person from doing or
continuing an act which might be threatening or invading the legal rights of
another. It may be in the form of a temporary injunction which is granted on
for a limited period of time which may get reversed or confirmed. If it is
confirmed, then it takes the form of a permanent injunction.
2. Damages
The damages may be offered in terms of compensation to the aggrieved
party, these could be nominal damages. The purpose of the damages is not
just compensating the individual who has suffered but also making the
defendant realise his mistakes and deter him from repeating the same wrong
done by him.
3. Abatement
Abatement of nuisance means the removal of a nuisance by the party who
has suffered, without any legal proceedings.
This privilege must be exercised within a reasonable time and usually
requires notice to the defendant and his failure to act. Reasonable force may
be used to employ the abatement, and the plaintiff will be liable if his actions
go beyond reasonable measures.
CONCLUSION
The concept of nuisance arises commonly in everyone’s daily life, in fact, the
Ugandan courts have borrowed quite a lot from the English principles as
well as from the decisions of the common law along with creating their own
precedents. This has helped the concept of nuisance in the field of law
develop quite extensively and assures the fairness and well being of all the
parties who may be involved such as in the case of Private nuisance, the
party who is being affected, as well as, in the case of public nuisance, where
the society at large is being affected
