NUISANCE

Introduction
• Nuisance is the unreasonable interference
with a person’s use or enjoyment of his land
or some right in connection with it.
• Nuisance concerns disputes between
neighbours relating to their respective use of
their land.
• It can also be environmental use e.g.. Large
manufacturers polluting the atmosphere.
 Introduction

• It can be divided into Public Nuisance and

Private Nuisance.
• Definition of Private according to Winfield and
Jolowicz on Tort 14 ed. Pg 404:
• ‘…an unlawful interference with a person’s
use or enjoyment of land or some right over,
or in connection with it…’
 Introduction
• The essence of the tort is found in the maxim:
• Sic utere tuo alienum non laedas - NO MAN IS
ALLOWED TO USE HIS PROPERTY IN SUCH A
WAY AS TO INJURE ANOTHER.
 Introduction
• The law does allow for the use of property to
injure another, however it is the
UNREASONABLE USE OF LAND BY ONE
PERSON WHICH CAUSES INJURY TO ANOTHER
THAT IS AT THE HEART OF PRIVATE NUISANCE
• Nuisance seeks to balance two competing
policies:
 Introduction
• The interest in the landowner using his land as
he sees fit VS the interest of the neighbour in
the quiet enjoyment of his land.
 The Claimants
• According to Malone v Laskey, in this case Clt
sued D for damages that electricity generator
caused to him. Hd: generator amounted to
nuisance, however it failed because only persons
with an interest in land could sue, not person.
• The necessity for this was removed in
Khorasandjian v Bush where a daughter who
lived with her parents were allowed to sue in
nuisance.
 Claimants
• In Hunter v Canary Wharf it was held that a
substantial link between the person and the
land was necessary such as occupation of the
property as a house.
 Type of harm covered
• Three main groups of activities may be
actionable in nuisance
• Encroachment i.e. physical objects actually
interfering with the claimant’s land e.g.. tree
roots: Davey v Harrow Corp . The Plaintiff's
house was damaged by roots penetrating from
trees on adjoining land. held: D was liable, that
a change of ownership of a property does not
break the chain of continuity.
 Type of harm covered
• Physical damage to land e.g.. overflow of water:
Denfield v O’Callaghan D built drainage across P’s land,
it was accidentally block by D which caused flooding.
• Interference with enjoyment of property e.g... Noise –
Tetley v Chitty. council granted permission for a go-kart
track on council owned land. Council liable in nuisance
for noise.
• Smell – Adams v Ursell. a fried-fish shop was a
nuisance in the residential part of a street. An
injunction would not cause hardship to the D
 Unreasonable use of land.
• Not all interference give rise to liability; there
must be give and take between neighbours
and the interference must be substantial and
not fanciful: Walter v Selfe (1851) 20 LJ Ch
433
• This fact was reaffirmed in HL in Southwark
LBC v Mills [1999] 1 All ER 449
• The court takes the following factors into
account including the following:
 Duration of the interference
• The shorter the duration of the interference
the less likely it is to be found unreasonable.
• In Harrison v Southwark [1891] 2 Ch 409 it
was held that the actions of the defendants in
sinking a shaft in the land adjoining the
plaintiff’s land did not constitute a nuisance
because of the temporary nature of the work.
 Duration of the interference
• In Bolton v Stone held that a nuisance must
‘be a state of affairs, however temporary and
not merely an isolated happening.’ so the
isolated escape of a cricket ball from a cricket
ground was held not to be a nuisance.
 Duration of interference

• But in Midwood v Manchester Corp. where

there was a gas explosion it was held to be a
nuisance although it was an isolated incident
as it was due to a pre-existing state of affairs
(the build up of the gas in the main).
• The generally accepted view now is that the
event must be attributable to a ‘state of
affairs’
Abnormal Sensitivity to the Claimant

• A man cannot increase his neighbour’s liability

merely because he puts his land to some
special use.
• In Robinson v Kilvert, The defendant heated
the cellar in a house so that it damaged some
sensitive papers in the plaintiff’s apartment.
Held that the heat was not abnormal in the
normal use of the house.
 Abnormal Sensitivity
• In Heath v Mayor of Brighton where a church
minister sought an injunction to restrain the
noise from the defendant’s electrical power
station, the injunction was denied because
there was no evidence that any member of
the church was upset with the noise, that the
minister was able to conduct services and the
membership was not affected.
 Character of the neighbourhood
• This is where the interference is with health
and comfort but not where physical damage
to property has been caused.
• In Sturges v Bridgman, held that ‘… what
would be a nuisance in Belgravia Square
would not necessarily be so in Bermondsey.
 Utility of the defendant’s conduct
• The more useful and reasonable the
defendant’s conduct the more likely it will be
that the plaintiff’s action will not succeed.
• Example the construction of houses
necessitates the making of temporary noise to
achieve a desirable social goal an not likely to
be a nuisance.
 Malice
• Malice may make an otherwise non actionable
act actionable, because the defendant’s action
is malicious they are devoid of social utility
and less deserving of protection.
• In Christie v Davey, the defendant who lived
next to a music teacher became annoyed with
the noise and took to beating pans, and
screaming and whistling. An injunction was
granted because he was acting maliciously
 Malice
• In Hollywood Silver Fox Farms V Emmett, the
defendants fired shots on the boundary of his
land to prevent his neighbour’s foxes from
mating. Held. The defendant was being
malicious and an injunction was granted.
 Fault by the defendants
• Negligence is not an essential ingredient of
nuisance, although it may be present and it is
no defence to nuisance to show that the
defendant took all reasonable or even all
possible care.
 Defendants – who can be sued.
Creator of the nuisance
• The creator of the nuisance by some positive
act on his part (misfeasance) rather by non
feasance may be sued in respect of the
nuisance even if he is no longer the occupier
of the land: Southport Corp v Esso Petroleum
 Occupier of the land
• The occupier of the land where he creates the
nuisance;
• The occupier is vicariously liable where his
employee creates the nuisance in the course
of his employment.
• The occupier is liable for the nuisance created
by his independent contractor or if he could
foresee that his instructions to the contractor
would cause a nuisance.
 Occupier
• In Bower v Peate, the plaintiff and the
defendant were owners of adjoining houses.
The defendant employed a contractor to
rebuild his house and the plaintiff’s house was
damaged. Held that the defendant was liable
 Occupier
• In Denfield v O’Callaghan, the local authority
trespassed on to the defendant’s land and
placed a culvert which placed a risk of flooding
to the plaintiffs land. The defendant through
his employees came to know of it and did
nothing about it. In a heavy rainfall the
plaintiff’s land flooded.
 Occupier
• Held: The defendant was liable because he
knew or ought to have known of the risk of
flooding and did nothing about it.
• An occupier was liable where he either
‘continued’ or ‘adopted’ the nuisance created
by the trespasser.
• In Sedleigh-Denfield the nuisance was held to
be both continued and adopted.
 Occupier
• The occupier is liable for the natural condition
of the land if he knows of the risk and fails to
take appropriate action. In Goldman v
Hargrave, a tree on the defendant’s land was
struck by lightening and caught fire. He cut
the tree down and allowed it to burn out. The
wind caught the sparks and spread the fire to
the plaintiff’s land where it did extensive
damage.
 Occupier
• Privy Council Held that the risk of fire was
foreseeable and the defendant was liable for
failing to take adequate steps to prevent the
fire from spreading.
• The defendant was not only under a duty to
refrain from causing damage to the plaintiff
but is under a positive duty to take steps to
prevent such harm from arising.
 Occupier
• In Leakey v National Trust, the defendant had
a steep hill on their property which
threatened to collapse on the plaintiff’s
property. The defendants did nothing and
when it did collapse damaging the plaintiffs
land held: a person on whose land a hazard
naturally occurred whether in the soil or
growing naturally on the land and which
 Occupier
• Encroached or threatened to encroach on
another’s land threatening or causing
damage, was under a duty if he knew or ought
to have known of the risk of encroachment, to
do what was reasonable in the particular
circumstances to prevent or minimize the risk
of known or foreseeable damage to the other
person or his property, and was liable in
nuisance if he did not take such steps.
 Landlords
• The general rule is that a landlord who has
relinquished possession and control of
premises which he has demised is not liable
for any nuisance which is committed on the
demised premises.
• There are THREE situations where he is liable:
• 1. Where the nuisance existed prior to the
granting of the lease.
 Landlords
• He may be liable if before the landlord came
out of possession the nuisance existed and he
knew or ought to have known about it. He
may escape liability if he covenanted with the
tenant under the lease to discontinue or
prevent the nuisance.
 Landlords
• 2. Where the landlord granted the lease for a
purpose which constitutes a nuisance.
• In Tetley v Chitty [1986] 1 All 663 the
defendants leased property to a go-kart club,
and the neighbouring plaintiffs complained of
the noise. The defendants argued that they
did not cause the noise neither did they
permit the club to cause a nuisance.
 Landlords
• Held” The noise made by the go-karts was an
‘ordinary and necessary consequence of the
use of go-karts, and the defendants were held
to have consented, either expressly or
impliedly, to the commission of the nuisance.
 Landlords
• 3. The landlord may be liable where he
expressly or impliedly reserves to himself a
right to enter and repair the premises, and will
be liable to a third party or in some cases the
tenant for damage caused by the nuisance.
• In Wringe v Cohen the gable of the
defendant’s house fell on the highway during
rains and damaged the plaintiff’s house
 Landlord
• Held: that the defendant landlord was liable
whether or not he knew or ought to have
known of the danger because he had
accepted an obligation to repair the premises,
which gave him control over the premises and
a right to enter and maintain them.
 Landlord
• The landlord is not liable where the nuisance
has been created by a trespasser or by an act
of nature, unless the principles established
Denfield v O’Callaghan has been satisfied.
 Defences
• Prescription: Continuing a nuisance for 20
years will legalise it by prescription. Time
does not begin to run until the claimant is
aware that the nuisance exists. In Sturges v
Bridgman (1879), the defendant a sweetie
manufacturer for more than 20 years used
certain machinery. The plaintiff bought
adjoining property in 1865 and built his
consulting rooms in 1873..
 Prescription
• The plaintiff brought an action for noise
nuisance, and the defendant argued that he
had a right to make noise by 20 years
prescription.
• Held there was no nuisance until the
consulting rooms were built in 1873 and time
did not begin to run until that date so there
was no 20 years prescription.
 Statutory Authority
• Where the act which gave rise to the nuisance
was authorised by Statute, it will give the
defendant a defence only if it can be shown
that the interference with the plaintiff’s rights
was either expressly or impliedly permitted by
the wording in the statute.
 Statutory Authority
• In Allen v Gulf Oil,the plaintiff villagers were
unsuccessful in their action in noise nuisance
where HL held that Parliament had by
necessary implication authorised the
operation and use of the refinery. Parliament
could not intend the refinery to stand unused
as an ‘adornment’ of the countryside.
• They had immunity from any non negligent
interferences with the plaintiff’s property.
 Other Defences
• Volenti
• Contributory negligence
• Act of God.
• Act of a stranger unless the defendant has
‘adopted’ or continued the nuisance.
• Ignorance where the nuisance is caused by a
‘secrete and unobservable operation of
nature: Noble v Harrison
 INVALID DEFENCES
• Coming to the nuisance i.e. the defendant was
making the nuisance before the plaintiff came
into the area: Sturges v Bridgman.
• In Miller v Jackson [1977] QB 966 Lord Denning
in a minority judgment held for the defendants,
but the majority found for the plaintiff but said
that the houses were built when cricket was
already played there and refused to grant an
injunction, giving damages instead.
 Invalid Defences
• Usefulness of the defendant’s activity of itself
is not a defence.
• In Adams v Ursell [1913] the defendant
opened a fish and chip shop in a well to do
residential area. He argued that its closure
would cause hardship. Held: He should have
located his ship in the area where his
customers would not be offended by the smell
coming from the shop
 Invalid Defence
• It is no defence that the defendant is one of
many persons acting together causing the
nuisance and that the defendant’s act alone
would not amount to nuisance.
 REMEDIES
INJUNCTION
• Injunction: Discretionary where damages are
not adequate.
• It is still unclear whether public interest gets
priority over private interest. There are
conflicting views:
• Miller v Jackson (public)
• Kennaway v Thompson [1981] QB 88 (private)
 REMEDIES
ABATEMENT
• Abatement by the plaintiff in the following:
• 1. Notice must be given to the defendant
unless it can be abated without obtaining
entry to the plaintiff’s property or the security
of life or property is at risk and time does not
permit the giving of notice e.g. cutting
overhanging branches.
 Remedies
ABATEMENT
• 2. There must not be unnecessary damage to
the plaintiff’s property during the abatement.
• 3. Where there is more than one way of
abating the problem the lest expensive
method to the defendant must be taken
unless it would be detrimental to third parties
or the public at large.
 REMEDIES
DAMAGES
• Where the nuisance is not continuous or
where the plaintiff’s property has been
damaged by the nuisance.
• Where it can be shown that the value of the
property has diminished due to the nuisance.
• Mrs. Marcia C. Robinson – Lecturer
• LLB, MBA, BSc.
• Attorney-at-Law