Nuisance, Private Nuisance, Public Nuisance, Defences to nuisance (both…
Tries to balance the rights of neighbours and members of the public to their respective activities and a person’s right to use and to quiet enjoyment of his land without interference.
A tort that attached to a person’s land; it is not a ‘personal right’. So if you find that a person is particularly irritating to you (or in lay terms, is being a ‘nuisance’ to you) the tort of nuisance would not be a recourse.
Types of nuisance:
- Private nuisance
- Public nuisance
- Diminution in the value of the property or the comfort and enjoyment of it e.g. by having a HDB neighbor who constantly fries chille/sambal, you may not get an attractive price from the potential buyers to your property.
- Consequential damage e.g. loss of profits – you own a coffee shop. Your immediate neighbouring shop unit have started welding works that produced not only offending noise but also obnoxious fumes that have turned your customers away.
- Property damage e.g. when encroaching tree roots from your neighbours property breaks up the cement work on your driveway.
- Reasonable remedial expenditure incurred in response to the interference e.g. to claim for reasonable costs incurred to remove tree roots that encroach into your land.
- Court orders to stop the activity causing the nuisance. They may be "perpetual", completely forbidding the activity, or "partial", for example limiting when the activity can take place.
Damages may be granted in lieu of an injunction if:
- The injury to the plaintiff’s legal rights was small;
- The injury was one capable of being estimated in monetary terms;
- The injury was one that could be adequately compensated by a small money payment; or
- The case was one in which it would be oppressive to the defendant to grant an injunction.
The plaintiff is precluded from claiming under private nuisance for death or personal injury. The reason being that a nuisance action seeks to protect one’s interest in land and not just the physical person.
Elements of private nuisance
- They have suffered material damage or interference to the use or enjoyment of their land. This would therefore discount trivial inconveniences. Material damage or interference could come in the form of physical damage or in the form of smells, vibrations, noise, dust or other emissions, or encroachment onto land by roots or branches.
- Such interference was unreasonable. To be able to determine whether the interference was reasonable or not, the court will apply the ‘Reasonableness Test’. The conduct of the defendant or their use of the land need not be necessarily or usually unlawful. It is sufficient that the consequences of the defendant’s conduct or their use of the land extended to that of their neighbours, resulting in interference with their neighbours’ comfortable and convenient enjoyment of their land.
Factors of the Reasonable Test
- Locality of the premises – surely a tenant of premises located above a pub or bar or karaoke lounge cannot complain of communal singing put up by the patrons of the pub or bar. The pungent aroma of frying sambal blachan may be acceptable amongst HDB neighbours, but would it be acceptable to expatriate neighbours living in an exclusive upmarket condominium located at Queen Astrid Park?
- The nature of the nuisance – a high pitched whining could be less tolerable than a low drone. Here it is also prudent for us to consider the difference between the sensitivity of the plaintiff, as opposed to the conduct on the part of the defendant.
- The frequency of the nuisance – something that happens once in a long while (e.g. knocking nails into the wall to put up pictures) is obviously more tolerable than the same action happening day in and day out (e.g. knocking on the wall as practice for drumming)
- The duration of the nuisance – this would refer to how long the interference lasted.
- When applying the reasonableness test, whether there is malice on the defendant’s part is also relevant.
Refers to the defendant’s interference with the plaintiff’s use and peaceful enjoyment of his own land.
e.g., if Andrew and Bob are neighbours, Andrew would be committing private nuisance if he blasts his radio late into the night, so much so that Bob is unable to enjoy a peaceful night’s sleep in his own home.
- To be entitled to sue a defendant in private nuisance, the plaintiff must show that he has a legal interest in the land. Occupation of the property as a home is not enough. The plaintiff can only be someone who owns the land or is a tenant or is one who enjoys exclusive possession over the land.
Possible persons who may be sued for private nuisance are:
- The person who caused the nuisance
- The landlord of the premises which is the source of the nuisance
- The occupier of the premises which is the source of the nuisance (especially if the occupier is aware of the nuisance but failed to abate (reduce) it)
- Public nuisance is any act or illegal omission that causes common injury, danger, annoyance to the public or which causes injury, obstruction, danger or annoyance to persons who use a public right.
- Does not involve any rights over land
- The plaintiff in an action for public nuisance therefore does not need to show that he has any legal interest in land.
- Public nuisance refers to the defendant’s interference with the reasonable comfort of a section of the public, of which the plaintiff is also a part.
- As it involves the public, this form of nuisance could also amount to an offence under s. 268 of the Penal Code.
Elements of public nuisance
- The act in question need not be an illegal act it should be an act that is generally ‘objectionable’ or ‘repugnant’ to the public.
e.g., Air pollution, loud noises, storing dangerous explosives, prostitution houses, unhygienic hawker/restaurant food, obstructing highway
- The plaintiff must be able to show that the damage he suffered is different or greater in extent from others in the section of the public who were also affected by the defendant’s action.
- For a private individual or entity to commence an action in public nuisance they must first seek the permission of the Attorney-General. This is as required under Order 15 r 11, Rules of Court.
- Injunction to prohibit the repetition or continuance of the public nuisance