Law: Tort

NUISANCE
 NUISANCE
The word is derived from the French word ‘Nuire’ which
means to hurt or to annoy or to cause inconvenience or damage.

 Nuisance is an unlawful interference with a person’s use

or enjoyment of land or some right over or in connection
with it –Winfield.

Examples- acts interfering with comfort, health or safety of

the person in the way of
Noise, Vibration, Heat, Smoke, Smell, Fumes
Water
Gas, Electricity
Differences between Nuisance and Trespass
Trespass is a direct interference with the plaintiff’s possession
of land through some materials or tangible object.
1. In Trespass the interference is direct but in Nuisance it is
consequential.- e.g. planting a tree on another land and planting tree on own land but its
branches or root project into or over the land of other.

2. Interference with the possession of land of other person-

Trespass but interference with a person’s use or enjoyment of
land is Nuisance.
3. In trespass, interference is always through some material or
tangible object but Nuisance can be committed through
tangible as well as intangible objects like vibration, gas, noise,
smell or smoke.
4. Trespass is actionable per se, but in an action for nuisance,
special damage is required to be proved.
 PRIVATE NUISANCE
DEFINITION
Private nuisance is a continuous, unlawful and indirect interference with the
use or enjoyment of land, or of some right over or in connection with it.
Lord Lloyd in Hunter v Canary Wharf [1997] 2 All ER 426, stated that private
nuisances are of three kinds. They are;
(1) nuisance by encroachment on a neighbour's land;
(2) nuisance by direct physical injury to a neighbour's land; and
(3) nuisance by interference with a neighbour's quiet enjoyment of his land.

Proof of damage is usually necessary.

Foreseeability of harm is a prerequisite of the recovery of damages in private
and also public nuisance: per Lord Goff, Cambridge Water v Eastern
Counties Leather [1994] 1 All ER 53 at 71-2.
 REQUIREMENTS
1. CONTINUOUS INTERFERENCE

There must be a continuous interference over a period of time with the claimant's use or
enjoyment of land.

De Keyser's Royal Hotel v Spicer Bros Ltd (1914)

Noisy pile driving at night during temporary building works was held to be a private
nuisance.

There are only rare examples where a single act has been held to amount to a private
nuisance:

British Celanese v Hunt (Capacitors) Ltd [1969]

Foil had blown from the D's land where it was stored and had damaged an electricity
substation, causing the electricity to an industrial estate to be cut off. This had occurred
once a few years previously because of the way in which the material was stored. The trial
judge held this to be a private nuisance.

Crown River Cruises v Kimbolton Fireworks [1996]

It was held that a firework display constituted a nuisance when it was inevitable that for 15-
20 minutes debris of a flammable nature would fall upon nearby property, thereby damaging
the property in the ensuing fire.
2. UNLAWFUL INTERFERENCE/UNREASONABLENESS

The claimant must prove that the defendant's conduct was unreasonable,
thereby making it unlawful. The rule is sic utere tuo ut alienum non laedas (So
use your own property as not to injure your neighbour's).

As to impairment of the enjoyment of land, the governing principle is that of

reasonable user - the principle of give and take as between neighbouring
occupiers of land (per Lord Goff, Cambridge Water Co v Eastern Counties
Leather [1994]).

The court will take the following factors into account in assessing the
reasonableness or otherwise of the defendant's use of land:
• The locality
• Sensitivity of the claimant
• the utility of the defendants conduct
• malice
• the state of the defendants land
a) The locality

It was stated in Sturges v Bridgman (1879) that: "What would be a nuisance in

Belgravia Square would not necessarily be so in Bermondsey.“

b) Sensitivity of the claimant

The standard of tolerance is that of the 'normal' neighbour. Therefore,

abnormally sensitive plaintiffs are unlikely to succeed in their claims for private
nuisance. Contrast:

Robinson v Kilvert (1889)

The C's claim was for damage to abnormally sensitive paper stored in a cellar
which was affected by heat from adjoining premises. The claim failed because
ordinary paper would not have been affected by the temperature.

McKinnon Industries v Walker [1951]

Fumes from the D's factory damaged delicate orchids. As the fumes would
have damaged flowers of ordinary sensitivity there was a nuisance.
c) The utility of the defendant's conduct

It will be unlikely for an activity to amount to a nuisance if it is useful for the

community as a whole taking into account all the surrounding circumstances,
such as locality and the duration of the activities. Contrast:

Harrison v Southwark Water Co [1891]

Building work carried out at reasonable times of the day did not amount to a
nuisance.

Adams v Ursell [1913]

A fried-fish shop was a nuisance in the residential part of a street. An injunction

would not cause hardship to the D and to the poor people who were his
customers.
d) Malice

It is not necessary to establish malicious behaviour on the part of

the defendant but it may be regarded as evidence of
unreasonableness. Contrast:

Christie v Davey [1893]

The C had been giving music lessons in his semi-detached house
for several years. The D, irritated by the noise, banged on the
walls, shouted, blew whistles and beat tin trays with the malicious
intention of annoying his neighbour and spoiling the music
lessons. An injunction was granted to restrain the D's behaviour.

Bradford Corporation v Pickles [1895]

The C deliberately diverted water flowing through his land, away
from his neighbour's property. The C intended to force them to
buy his land at an inflated price. It was held that he was
committing no legal wrong because no-one has a right to
uninterrupted supplies of water which percolates through from
e) The state of the defendant's land

An occupier must take such steps as are reasonable to prevent or minimise

dangers to adjoining land from natural hazards on his land.

Leakey v National Trust [1980]

The NT owned land upon which there was a large mound of earth which was
being gradually eroded by natural processes, and was sliding onto the C's
property. It was held that an occupier must take such steps as are reasonable to
prevent or minimise dangers to adjoining land from natural hazards on his land.

However, see Holbeck Hall Hotel v Scarborough BC [2000] - the danger

must be patent and not latent for there to be liability.
3. INTERFERENCE WITH THE USE OR ENJOYMENT OF LAND OR
SOME RIGHT OVER OR IN CONNECTION WITH IT

The claimant must usually prove damage, ie physical damage to the land
itself or property; or injury to health, such as headaches caused by noise,
which prevents a person enjoying the use of their land. Case examples
include:

· Bliss v Hall (1838) - smells and fumes from candle making invading
adjoining land.

· Halsey v Esso Petroleum [1961] - disturbing neighbours' sleep by noise

and vibrations and damage to clothes from acid smuts.

· Bone v Seale [1975] - smell from neighbours' pig farm.

· Solloway v Hampshire County Council (1981) - allowing tree roots to

suck moisture from adjoining soil, thereby causing subsidence.
However, note the decision and points made by the House of Lords in

Hunter v Canary Wharf Ltd [1997]:·

Interference with TV reception by a tall building could not amount to an

actionable public or private nuisance, on the basis that this was not an
interference with use or enjoyment of land.

· "The general principle is that at common law anyone may build whatever he
likes upon his land. If the effect is to interfere with the light, air or view of his
neighbour, that is his misfortune. The owner's right to build can be restrained
only by covenant or the acquisition (by grant or prescription) of an easement of
light or air for the benefit of windows or apertures on adjoining land." (per Lord
Hoffman at p17; see also Lord Goff at p2 and Lord Hope at p27.)
 WHO MAY SUE
Only a person who has a proprietary interest in the land affected by the nuisance will
succeed in a claim, eg as owner or reversioner, or be in exclusive possession or
occupation of it as tenant or under a licence to occupy (but there may be anomalous
exceptions, per Lord Hope, Hunter v Canary Wharf).
 WHO MAY BE SUED

Creator of the nuisance

Any person who creates the nuisance can be sued, whether or not that person is the
occupier of the land at the time of the action.

Occupiers
Occupiers who adopt and continue to allow nuisances on their land may also be liable,
even if such nuisances were created by predecessors in title, trespassers or third parties.
See:
· Sedleigh Denfield v O'Callaghan [1940]

Landlord
A landlord may be liable for nuisances emanating from land, eg if the landlord had
knowledge of the nuisance before letting, or where the landlord reserved the right to enter
and repair the premises. For example:

· Tetley v Chitty [1986] - council granted permission for a go-kart track on council owned
land. Council liable in nuisance for noise.

Recent cases on who may be sued are the contrasting CA authorities:

· Hussain v Lancaster CC [1999] 4 All ER 125
· Lippiatt v South Gloucestershire C [1999] 4 All ER 149
 Nuisance to incorporeal property
• 1)interferance with right to support of land and buildings-
person has natural right to have his own land supported
by his neighbour and therefore removal of support ,lateral
or from beneath is a nuisance.
• And is available only in respect of land without buildings.
(so not available in respect of buildings or other
structures on land)
• Mere removal of support or excavations is not
actionable ,substantial damage has got to be proved.(sec
34 of easement act)
 Right to support by grant or prescription

• In respect of buildings right of support may

be acquired by grant or prescription.
• Dalton v. angus(houses of both on
adjoining land having lateral support from
neighbouring land )
 Interference with right to light and air

• In england-right to light is not a natural

right and may be acquired by grant or
prescription(g/p).but substantial
diminiution in the light has to be proved.
• Right to air-is possible to be acquired by
g/p and after it is acquired its infringment
is a nuisance.
 In india
• Right to light/air can be acquired by an
easement.conditions are-
• Peacefully enjoyed
• As an easement
• As of right
without interuption,and
• For 20 yrs.
• If substantial interferance is there with light and air
,same is actionable by an action for damages acc.to
sec 33 of indian easement act .
 2)Injury to comfort or health
• Substantial interference is actionable.
• Mere triffiling or fanciful inconvenience is
not enough.
• De minimis noncurat lax-law does not take
into acc. Every triffling matter.
 3)DAMAGE
• Unlike trespass which is actionble per
se,special daamge has to be proved.
• In public nuisance special damgae haas to
be proved
• In private nuisance although damage is
one of the essential but law will often
persume it.
 Nuisance on highways
• Obstructing a highway or creating dangers
on it or in its close proximity is a nuisance.
• Obstruction need not be total,but must be
unreasonable.
• Barber v. penely(formation of ques)
• Ware v. garston haulage co. ltd(lefting
unatended lorry on side of highway with no
rear light)
 Projection on highways
• No action unless some damage is caused
by it like overhanging branches of tree,a
clock from the land adjoining the highway.
 Defences of Nuisance
1)-Effectual Defences-accepted by the court as
defence
(a) Prescription-from last 20 yrs peacefull enjoyement
of any right then nuisance will become valid ab initio.
(b) Statutory Authority-nuisance is the result of the act
authorised by the statute itself
(c) Consent of the plaintiff
(d) Necessity
(e) Act of God
(f) Trifles
 2 Ineffectual Defences-not accepted as defence

(a) Nuisance due to acts of Others-act of two or more

persons acting independently of each other ,may cause
nuisance although the act of anyone of them alone would
not be so, and action can be brought against any one of
them and it will not be defence to say that nuisance is the
result when other had acted in the same way.
(b) Public Good-is no defence to say that what is nuisance
to particular plaintiff is beneficial to public in general
otherwise no public utility undertaking could be held liable
for the unlawful interference with rights of individuals.
 Cntd…
(c) Reasonable care-use of reasonable care in
preventing the nuisance is not a defence until
consent of those injured by it or by authority
of a statute.
(d) Plaintiff coming to nuisance-a person cannot
be refrained from buying a land on which
nuisance already exists and the plaintiff can
recover even if nuisance has been going long
before he went to that place.
Remedies for Tort of Nuisance

1.Abatement- Removal or put an end of

nuisance

2. Damages- if special damage proved

3. Injunction- Temporary or Permanent

Injunction