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Nuisance An interference with a public or private interest: Halsey v…

- - - - Right to exclusive possession (incl to exclude others) seen as sufficient criteria.
    - - This position maintained in England by House of Lords in Hunter v Canary Wharf Ltd [1997] 2 All ER 426.
        Hunter overruled Ct of Appeal decision in Khorasandjian v Bush [1993] QB 727 (where standing extended to daughter being harassed by telephone calls).
        
        But Aust courts likely to follow reasoning in Hunter: see Stockwell v Vic [2001] VSC 497, Robson v Leischke (2008) 72 NSWLR 98, Hoxton Park Residents’ Action Group Inc v Liverpool City Council (2010) 246 FLR 207.
  - - - measured objectively by the standard of the reasonable person. Must interfere with ordinary comfort and “not merely according to elegant or dainty modes and habits of living...” (Walter v Selfe (1851) 64 ER 849 at 851 per Bruce V-C)
    - - “Reasonable”: Parties are expected to put with some interference from neighbours under the principle of “live and let live”. Bamford v Turnley (1862) 122 ER 27. But fact that Def’s activity is beneficial is no defence; it must still pay for damage it causes.
        
        reasonableness considered by considering
        
        Duration and frequency of interference
        
        Wherry v KB Hutcherson P/L (1987) Aust Torts Rep 80-107. Temporary noise from excavating building site held to be nuisance.
        In a general sense, the longer the duration and/or the higher the frequency of the interference, the more likely that it will be deemed unreasonable.
        
        Extent of interference
        
        Midwood & Co v Manchester Corporation [1905] 2 KB 597. Explosion set fire to Pl’s premises.
        In Feiner v Domachuk (1994) 35 NSWLR 485, the extent and intensity of a defendant’s activity was held to outweigh the suitability of the activity for the locality. Odour from mushrooms caused nausea, asthma, cancelled social events. Extent of smell is more than could be reasonably expected for the area
        
        Time of interference
        
        Halsey v Esso Petroleum where interferences occurred largely at night.
        
        Locality of interference
        
        Sturges v Bridgman. Def’s use of pestles and mortars for 20 yrs did not cause nuisance to Pl until Pl built extra room at back of his premises. Court found for Pl.
        Locality involves a consideration of the nature and activities of the surrounding community/area. For example, industrial activities in a residential area may be unreasonable, but not so in a predominantly industrial area: Halsey v Esso Petroleum Co Ltd.
        
        Malice
        
        The Court will take into account the Def’s motive.
        If Def acts with malice, the interference will be deemed unreasonable.
        In such cases it is irrelevant if the Pl is an unduly sensitive user of land (Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468).
        Rattray v Daniels (1959) 17 DLR (2d) 134 (Can) (Def using bulldozer to clear land affected Pl’s noise-sensitive minks – no nuisance)
        Stoakes v Brydges (Def’s retaliatory action of dialling Pl’s phone in the middle of the night constituted nuisance)
        Cf Fraser v Booth (Def’s retaliatory noise and hosing not nuisance, but the throwing of firecrackers was)
        
        Social Utility
        
        The Ct will take into account nature of Def’s activities.
        BUT social utility of the activity rarely trumps Pl’s right to enjoy property. Rationale? If Def’s activities have such high social utility, but causes undue disturbance to Pl’s rights, the Def is better placed to absorb costs (who can spread costs to benefitting public). If a reasonably practicable alternative way of doing activity exists, original actions may be unreasonable: eg. Cohen v City of Perth [2000] WASC 306 (excessive daily noise from garbage trucks held to be nuisance).
  - - - Positive acts and omissions
        
        Positive (misfeasance)
        positive act causing harm
        
        For positive acts: see Sedleigh-Denfield v O’Callaghan [1940] AC 880.
        In Aus, see Sutherland Shire Council v Becker [2006] NSWCA 344 (Pl could not prove Def Council had acted without reasonable care in building/maintaining drainage system. Claim failed).
        
        Omissions (nonfeasance)
        failure to act by the D
        
        For omissions: see Goldman v Hargrave (1966) 115 CLR 458, failure to put out fire from lightening strike, as D had skill, knowledge and resources
        Stockwell v Vic [2001] VSC 497 (Def liable for failing to prevent wild dogs occupying an area under its control from attacking the Pl’s sheep
      - Damage may be to the land or chattels on the land (windows damaged from golf balls)
        
        Proof of material damage will always amount to unreasonable interference. For example, acid smuts causing damage to the plaintiff’s laundry and washing (Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683)
      - must be so substantial as to cause harm
    - - Vibration; Sturges v Bridgman (1879) 11 Ch D 852 - impact on doctor from pestel and mortars
      - must be substantial and unreasonable interference. Interference must be a recognised right of enjoyment
      - Noise; Seidler v Luna Park Reserve Trust (SC (NSW), Hodgson J, 21 September 1995, unreported, BC9505507) - Luna Park roller coaster.
      - Smells; Feiner v Domachuk (1994) 35 NSWLR 485 - Mushroom farm odour
  - - - Occupier liable for nuisance caused by another if they had knowledge/ought to have known, of nuisance & failed to abate it.
        L’Estrange v Brisbane Gas Co [1928] St R Qd 180
      - Cartwright v McLaine & Long Pty Ltd (1979) 143 CLR 549:
        An occupier of land upon which a nuisance has been created by another will not be liable unless he has continued the nuisance, and he continues a nuisance ‘if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so’See: Sedleigh-Denfield v O’Callaghan [1940]
        Cf. Torette House v Berkman (1940) 62 CLR 637
    - - Proprietary interest in the land from where the nuisance emanates not required
        Eg. Fennel v Robson Excavations [1977]
        Means a trespasser who creates the nuisance can be liable
      - cases such as Halsey v Esso Petroleum [1961] 1 WLR 683 suggest that the nuisance doesn’t need to emanate from the defendant’s land (eg. the use of heavy trucks outside the Def’s premises amounted to nuisance)
      - i.e. Def bears ‘some degree of personal responsibility’ (Sedleigh-Denfield v O’Callaghan [1940])
    - - exists where there is a ‘special danger’ of nuisance.
  - - - Undue sensitivity of the plaintiff’s utility
        The plaintiff will be unable to claim the defendant’s actions unreasonably interfere with their utility of the land if the plaintiff’s use of the land is for an unduly sensitive purpose, unless the interference would also be unreasonable for an ordinary use of the land.
- - - - No interest in land is required.
      - Special damage (this is critical for individuals wanting to bring private action)
        over & above the general public
        
        Pecuniary loss
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        Additional trouble & expense
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        Property damage
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        per Walsh v Ervin [1952] VLR 361
        
        Must relate to an interference with public right.
        
        Eg. Deepcliffe Pty Ltd v The Council of the City of Gold Coast [2001] QCA 342 (Parking restrictions. Def not liable as did not deny or seriously impair pl’s access. So, a public right, but no special damage).
        
        Personal injury
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