Nuisance

Private Nuisance
Definition:
- An unlawful interference with a persons use of land, or
some right over or in connection with it.
Objectives:
- To balance the conflicting interests between neighbours
- To decide at what point an interference becomes
intolerable
Types of Interference:
- Encroachment onto the plaintiffs land
- entering into someone elses property
- E.g: Overhanging branches from a neighbours tree
into the plaintiffs garden
- Davey v Harrow
The court held the defendant liable for encroachment
of land under private nuisance where the roots of
trees from the defendants property had entered the
plaintiffs adjoining property and caused damage to
it.
- Physical damage to the plaintiffs land
- Where the plaintiff suffered actual damage to the
property.
- E.g: A renovation causes cracks to appear on the
plaintiffs property; water overflow from the
defendants property causes damage to the plaintiffs
house.
- Hotel Continental SB v Cheong Fatt Tze Mansion SB
The court granted an injunction even though the
piling works to the defendants hotel were temporary

as it had caused cracks to appear on the plaintiffs

heritage building.
- Interference with the plaintiffs comfort and convenience
(amenity nuisance)
- Where the plaintiff does not suffer any physical
damage to his property, but feels discomfort.
- Where he is unable to live peacefully on his land
as a result of the defendants activity.
- Where the defendants activity becomes
intolerable.
- E.g: Continuous noise, foul smell, fumes, dirt,
dust.
- Bone v Seal
The court held the defendant liable as foul smell
coming from a pig farm for 12 years was a nuisance.
- Tetley v Chitty
The court held the defendant liable as noise coming
from a go-cart track which could be heard in the
plaintiffs house was a nuisance.
Elements:
1. There must be a substantial interference
- The plaintiff must have suffered damage.
- Hotel Continental SB v Cheong Fatt Tze Mansion SB
The court granted an injunction even though the
piling work to the defendants hotel was temporary
as it had caused substantial interference, which was
the appearance of cracks, on the plaintiffs heritage
building.

2. Unreasonableness
- Rule: The interference must be unreasonable before
it can be considered unlawful.
- TEST of reasonableness:
According to Buckley J in Saunders-Clark v Grosvenor
Mansions Co Ltd, The court must consider whether
the defendant is using the property reasonably or
not. If he is using it reasonably, there is nothing
which at law can be considered a nuisance, but if he
is not using it reasonably then the plaintiff is entitled
to relief.
Factors determining reasonableness:
1. Locality
- It is a relevant factor in cases of personal injuries.
- What is considered a nuisance in one country may
not be considered a nuisance in another.
- The character of a locality may change over time;
therefore the same activity may give rise to an
actionable nuisance at a particular time, but not at a
later time.
- What is regarded as excessive in a certain locality
would be considered unreasonable, thus amounting
to a substantial interference.
- However, if the interference causes physical
damage to the property, then the locality or
surrounding circumstances becomes irrelevant.
- Laws v Florinplace
The court held the defendant liable as a sex shop in a
residential area was considered unreasonable, thus
making it a nuisance.
2. Seriousness of the interference

- If the defendants activity is only taking place once a

week and does not cause any physical damage to the
plaintiffs property, then it is not unreasonable, and
cannot be considered as a nuisance.
3. Duration of the interference
- The defendants activity must be continuous and
disturbs the plaintiff excessively.
- E.g: The roots of a tree belonging to the defendant
that had spread to the plaintiffs property and caused
cracks to appear is a continuous nuisance until the
defendant has fixed it completely.
- However, a temporary and isolated incident can be
considered as a nuisance if it has caused physical
damage to the plaintiffs property.
- E.g: Renovation work on the defendants property
causes cracks to appear on the plaintiffs property.
- It will only be reasonable if no physical damage was
caused.
4. Hypersensitivity
- The abnormal sensitivity of a person or his property.
- The law does not take into account hypersensitivity
of the plaintiff or his property.
- However, once unreasonable and substantial
interference is proved, hypersensitivity becomes
irrelevant.
- Hypersensitive plaintiffs: Those that work shift hours/
late night
- E.g: Doctors, nurses
- Hypersensitive property: Objects/Pets which are
abnormally sensitive to certain conditions
- E.g: Special fish, delicate flowers etc.
- McKinnon Industries v Walker
The court held the defendant liable for the damage
arising from the defendants activity towards the
plaintiffs delicate orchids along with other plants.
- Robinson v Kilvert

The court held the defendant not liable for the

damage towards the plaintiffs brown paper, as
ordinary paper would not have been affected by hot
air, making the plaintiffs property hypersensitive.
5. Malice
- Being malicious: A person who has bad motives or
intentions.
- The law does not protect a person who is being
malicious.
- A person who commits an act out of malicious intent
may be held liable.
- Christie v Davey
The court granted an injunction against the
defendant for shouting, yelling, hammering and
banging on the adjoining wall of the plaintiffs house
as the acts were committed maliciously to annoy the
plaintiff.
- Hollywood Silver Fox Farm Ltd v Emmett
The court granted an injunction against the
defendant for maliciously firing gunshots near the
plaintiffs mink farm to scare the plaintiffs foxes and
prevent them from breeding.
Who can sue in private nuisance?
- In order to bring an action in private nuisance, the
plaintiff must have an interest in the property
affected.
- Plaintiff must have a connection to the property.
- E.g: Has title, ownership or is an occupier of the
land.
- Where a house is jointly owned, both have title
to the property.
- This excludes those without interest, thus a person
cannot sue without an interest in the land.

- E.g: Hotel guests, licensees, a wife, children

etc.
- Malone v Laskey
The court denied the plaintiff her remedy for the
injury that she suffered arising from the defendants
construction site as she did not have any interest in
the property.
Who can be sued in private nuisance?
- The person responsible for creating the nuisance, the
occupier or the landlord.
Public Nuisance
Definition:
- From the case AG v PYA Quarries:
It is an unlawful act which endangers the lives, health or
comfort of the public or a substantial section thereof.
Categories:
1. Cases which satisfy the requirement of private nuisance
but affect a much larger number of people (more than one
person).
2. Cases which involve interference with safety or
convenience of members of the public, but do not satisfy
the basic requirements for an action in private nuisance.
Elements:
1. Must show that the person affected by
constituted the public or a section of the public.

nuisance

- AG v PYA Quarries
The court granted an injunction and held that a few
houses affected by the dust and vibration from the

defendants quarry activities were enough to

constitute the public as there was a sufficiently wide
impact.
- Lord Denning: There is no specific number to
amount to a public. If the activity affects a
representative cross-section of the society, it is
enough to be a public.

2. The plaintiff must show special damage.

- The damage is a direct and substantial loss beyond
that suffered by the general public.
- The type or extent of damage is more serious
than what is suffered by other persons exposed
to the same interference.
- E.g: Personal injury, damage to property.
- Rose v Miles
The court held the defendant liable for blocking the
river with his boat as the loss of time, money and
addition transport cost was sufficient special damage
to support the plaintiffs claim.
Differences
nuisance:

between

public

Public Nuisance
The plaintiff is not required to
have an interest in the property.
Does not necessarily concern
land.
The plaintiff needs to prove that
he constitutes the public or is a
section of the public.
An action is commenced by a
class or group of plaintiffs.
The plaintiff must have suffered

nuisance

and

private

Private Nuisance
The plaintiff must have an
interest in the property.
Concerns property and land.
The plaintiff is not required to
be a part of the public.
It is an action between
individuals.
The plaintiff
must have

a direct and substantial loss suffered substantial damage

over and above the rest of the caused by the interference.
members of the public.
It is a tortious act and a crime.
It is only a tortious act.

Defences
1. Rebuttal
- Where the defendant counter-argues and contends
that his activity is reasonable.
2. Statutory authority (For both, private and public nuisance)
- Where there is a statute which allows the defendant
to conduct the activity.
- Allen v Gulf Oil Refining
The court held that
statutory immunity
defendant to carry
though the plaintiff
and vibration.

the defendant had a defence of

where a statute authorised the
out oil refinement work even
complained of the noise, smell

3. Act of nature
- Where events occur out of the control of defendant
and without any human intervention
- E.g: Heavy rainfall, earthquakes, landslide.
4. Consent
- Where the plaintiff had consented to the defendants
activity.
Invalid defences

1. Coming to the nuisance

- Where the defendant contends that his property had
been there first, and it was the plaintiffs fault for
choosing to live there.
- It is invalid as under the Federal Constitution, the
plaintiff has a right to move to wherever he wishes.
- Thus, the defendant cannot prevent the plaintiff
from living there, and the plaintiff has a right to
bring an action under private nuisance.
- However, only an action to minimize the
nuisance can be brought against the defendant.
- E.g: An action to shut the defendants
factory down cannot be instituted.
2. Public benefit
- The usefulness of the defendants activity.
- The defendant cannot contend that his activity
is not a nuisance because it will benefit the
public.
- Adams v Ursell
The court held that the defence of public benefit was
invalid and cannot be raised by the defendant even
though the public often ate at his fish and chips shop
as the continuous smell of fish was a nuisance.
Remedies
1. Injunction
- A court order to the defendant to minimize the
nuisance.
2. Damages
- To compensate for physical damage to the property
or personal injury.
3. Abatement (Only for private nuisance)
- Where the parties take the law into their own hands.
- The defendant seeks permission from the plaintiff to
remedy the situation.

- E.g: The defendant asks for the plaintiffs

permission to cut off the tree.