Nuisance

Private nuisance is an unreasonable interference, created by the defendant, with a plaintiff’s use or enjoyment of a proprietary right in land: Hargrave v Goldman (1936) 110 CLR 40, 49 (Windeyer J).

A. There has been an unreasonable interference
B. Interference is with a proprietary right
C. Plaintiff has title to sue the defendant
D. Defendant is liable (defendant is appropriate defendant)

· The interference with the use or enjoyment of the land must be unreasonable: Hargrave v Goldman (1936) 110 CLR 40.
· For an interference to be unreasonable it must not be trivial but substantial: Munro v Southern Diaries Ltd [1955] VLR 332.

1. Type of damage caused by the interference
2. Locality of the land interfered with
3. Extent and intensity of interference
4. Duration, time and frequency of the interference
5. Undue sensitivity of the utility of the plaintiff’s land

· Material damage: occurs when there has been actual, or material, damage to the land or things upon the land.
· Utility damage: occurs through the presence of interferences such as smell, noise, vibrations and heat. This sort of interference does not cause physical injury to the land but instead damages the use – that is the utility - of the land. ·
With one exception (‘unduly sensitive use’ below), proof of material damage will always amount to an unreasonable interference; it will always be regarded as substantial and not merely trivial: Halsey v Esso Petroleum Co Ltd [ 1961] All ER 145.

· The nature and character of the neighbourhood must be considered when determining whether the interference to the land’s utility is unreasonable.
· What may amount to an unreasonable interference in one neighbourhood, may not necessarily amount to that in another: Halsey v Esso Petroleum Co Ltd [ 1961] 2 All ER 145. 151.

· Locality is not the only factor that will be considered in determining the reasonableness of an interference.
· The intensity or extent will also be considered: Feiner v Domachuk (1994) 35 NSWLR 485 – where Brownie J held that despite the rural nature of the area the intensity of the smell was more than could be ordinarily expected in a rural or semi rural area.

· The duration of the interference, the time of day and the number of times each day that it occurs, are also factors going to reasonableness.
· Wherry v KB Hutcherson Pty Ltd (1987) Aust Torts Reports 80-107(NSW SC. The plaintiff alleged that the noise the defendant created was too loud for him to work, the defendant argued that the noise level was appropriate for a developing CBD. Hodgson J had no hesitation in finding that this conduct amounted to an unreasonable interference and found it appropriate to grant an injunction between the hours of 8am to 1pm and 2pm to 5pm in order for the plaintiff to be able to reasonable undertake his work.

· Where the plaintiff uses their land for an unduly sensitive purpose, an interference with that land will not be unreasonable unless it would also have been unreasonable to an ordinary use of the land.
· This rule applies even when the interference causes material damage and not only damage to the utility of the land.
· Robinson v Kilvert (1889) 41 Ch D 88 (CA) – where heat from the defendant’s property was causing the weight of brown paper the plaintiff was manufacturing to weigh less, thus making it less valuable. The court held there was no nuisance. ‘A man who carries on a 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’. (97).

· As nuisance is concerned with unreasonable interference with the plaintiff’s proprietary rights it must be a proprietary right that suffers the interference: Hargrave v Goldman.

1. Occupation
· Occupation of land owned or in exclusive possession of the plaintiff is a proprietary right and it forms the basis for most nuisance cases.
· All cases discussed so far deal with this type of proprietary right.
§ Halsey v Esso Petroleum Co Ltd [1962] 2 All ER 145 – proprietary right to occupation through ownership
§ Wherry v KB Hutcherson Pty Ltd (1987) Aust Torts Reports 80-107 – proprietary right to occupation through lease of premises.
2. Access to land
· Interests in free access to property do amount to proprietary rights.
1. Deasey Pty Ltdv Monrest Pty Ltd ( sub nom Lanestar Pty Ltd) v Arapower Pty Ltd) – the court held that usage of the plaintiff’s car park by the defendant’s customers, at the invitation of the defendant, constituted a nuisance.
3. View of a Plaintiff’s land
· Interest in the plaintiff’s view of their property as opposed to views from their property. That is, does the plaintiff have the right to complain about others viewing their property?
· View of a plaintiff’s property is not a proprietary right which can be protected by an action in nuisance.
· Victoria Park Racing & Recreational Grounds Co Ltd v Taylor (1937) 58 CLR 479 – the High court held that the plaintiff could not charge or prohibit people from viewing the racecourse from outside of their land.
4. Structure on and Emanations from the defendant’s land
· The defendant’s need not have regard to a plaintiff when building on their own land. Defendant’s will only be constrained by building laws and regulations and any easements existing over the land. Prima facie a plaintiff cannot complain that a defendant has interfered with the view from their property.
· However some cases have held that views from the Plaintiff’s property can interfere with the use and enjoyment of the plaintiff’s proprietary rights.
· Hunter v Canary Wharf [1997] AC 655 (HL) – the court held that the mere presence of the tower, which blocked the television signals, was not enough to interfere with the ordinary use and enjoyment of the plaintiff’s proprietary rights in land.

· Nuisance is about interference in the use of the land therefore the plaintiff must have an adequate interest in this use of the land to have a title to sue for interference to this use or amenity.
· Types of occupation of land;
1. Owners in exclusive possession
2. Non-owners in exclusive possession
3. Mere licensee

· Oldman v Lawson (NO 1) [1976] VR 654 (VIC SC) - The plaintiff’s were husband and wife and lived in a house owned by the wife. Both the husband and wife sued the neighbours in nuisance. Appling the case of Malone v Laskey [1907] 2 KB 727, the court held that only the wife as an owner in exclusive possession, and not the husband, had title to sue.

· McLeod v Rub-a-dub Car Wash (Malvern) Pty Ltd (Unreported, Supreme Court of Victoria. Stephen J, 29 February 1972): a tenant of land had a title to sue for a nuisance to that land.

· The traditional view is that a mere licensee does not have title to sue in nuisance: Malone v Laskey [1907] 2 KB 727 applied in Oldman v Lawson (No 1) [1976] VR 654.
· However there is some case authority to suggest that this position might now be changing. The following cases examine this case law –
· Case where it was held that a licensee has a title to sue; Khorasandjan v Bush [1993] QB 727 (CA) – the court held that it has ‘at times to reconsider earlier decisions in light of changed social conditions … I do not see why (title to sue) should not apply to a child living at home with her parents’. (735)
· Deasy Pty Ltd v MonrestPty Ltd (sub nom Lanestar Pty Ltd v Arapower Pty Ltd) (Unreported, Queensland Court of appeal, Fitzgerald P, Pincus JA and Moynihan J, 22 November 1996, BC 9605947 – followed this decision where the courts found that there had been a nuisance by the defendant’s customers use of the plaintiff’s car park despite the fact that the plaintiff’s were not the owners of the premises.
· Hunter v Canary Wharf [1997] AC 655 (HL) – the House of Lords went back to the more traditional approach, where this case overruled the Court of Appeal decision in Bush. The majority of the Court hels that a mere licensee did not have title to sue.
· The position in Australia is unclear and there is no High Court authority. The majority view Hunter v Canary Wharf.