Public Nuisance

Public nuisance is an unlawful act or omission which endangers the lives, safety, health, property or comfort of the public or by which the public are obstructed in the exercise or enjoyment of any right common to all: Kent v Johnson (1973). See general NSW guidance at NSW Government and NSW Courts.

To establish prima facie case of public nuisance, a private individual will have to prove:

1. title to sue
2. that the interference is with a public right and
3. that the defendant’s interference is substantial and unreasonable

1. Title to Sue

Since public nuisance involves an interference with public rights, a private individual is usually precluded from instituting an action in respect of the interference.

Appropriate entity to bring suit is the NSW Attorney General as he/she represents the public.

Private individual is able to initiate proceedings for a public nuisance if:

• he or she can prove that they have suffered “special” or “particular”
• damage over and beyond that which is suffered by the rest of the public

Walsh v Ervin:

Circumstances that satisfy ‘special’ and ‘particular’ damage considered

• General principle: An individual cannot sue alone for relief in respect of a nuisance to a public highway unless he has sustained some particular damage, in the sense of some substantial injury, direct and not merely consequential, beyond that suffered by the public generally.
• For injury occasioned by the nuisance to his person, his life, his servant, or his chattels, an individual can plainly sue: Fowler v Sanders (1817)
• “Special damage” = pecuniary loss
• Delay and inconvenience of a substantial character, direct and not merely consequential, so long as not merely similar in nature and extent to that in fact suffered by the rest of the public, may amount to the sufficient damages, particular to the individual plaintiff, notwithstanding that, in another sense, it is “general” and not “special” damage to him. In such a case there is no more reason for denying compensation for such injury, as a particular injury, than there would be for denying the right to general damages for pain and suffering if the plaintiff fell over the obstruction in the highway and broke his leg, thus suffering particular damage, but happened to be a retired pension who was treated gratis in a public hospital, and so suffered “special” damage.
• In Smith v Wilson Gibson J: Mere inconvenience, as in Winterbottom v Derby may not be enough; but where premises are prejudicially affected by a direct near approach being permanently stopped, and replaced by a circuitous and longer way, or where business will be impeded, or additional expense may be probably necessary in consequence of the change, direct damage may be inferred.
• So long as the delay and inconvenience is substantial, it can in my opinion make no difference that the way is not wholly close, if it is effectively rendered unavailable for important purposes of the plaintiff, even though it be not possible to infer actual pecuniary loss by him
• General damage provided that it is substantial, that it is direct and consequential, and that It is appreciably greater in degree than any suffered by the general public
• Since such particular damage must be thus proved, it follows that mere nominal damages cannot be recovered, since there is no presumption of particular damage
• Test Fitzherbert J in Irish case: “greater hurt, or inconvenience, than every man had” and “especially hurt”.

Examples:

• Special damage may be established in different ways, ie. if the plaintiff is able to show that as a result of the public nuisance he or she has suffered personal injury, property damage, pecuniary loss or additional trouble an expense: Fowler v Sanders (horseman fell over logs in highway); Castle v St Augustine (golf balls smashed windscreen of P’s taxi which was on the highway); Taylor v City of Perth (P lost custom due to the D’s obstruction of the highway)
• No special damage was held in Ball v Consolidated Rutile Ltd – professional fishermen livelihood was affected when mining company’s activities caused earth and slurry to enter prawn fishing grounds depleting prawn population. Held: Fishermen did not suffer damage above and beyond other members of the public given that the watercourse was open to all members of the public to fish.
• No particular damage was held in Wallace v Powell – Held: P had not suffered particular damage as a result of the construction of buildings on a highway which infringed access to tract of land he intended to subdivide and sell. He was able to access the property along an alternative route without inconvenience and until such time as he was in a position to subdivide and develop the land there was insufficient damage.

For practical NSW information about roads and highways, see Transport for NSW. If the nuisance involves noise or emissions, guidance is available from the NSW Environment Protection Authority and the City of Sydney – Noise.

2. Interference With a Public Right

Court must be satisfied that the interference is with a “public right”.

Public Nuisance: Attorney- General v PYA Quarries Ltd (Lord Denning) – a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.

Extent to which public is affected is consideration in determining whether the D’s act interferes with public right.

R v Clifford:

Consideration in determine whether the interference has wide spread enough effect to be regarded public nuisance:

• Facts: 4 prisoners climbed prison roof and remained there 14 hours. Under section 23 of Prison Act, acts of nuisance by prisoners constituted an offence against prison discipline.
• Issue: Was it public nuisance
• Held (Reynolds JA):
• Public nuisance has been defined as being an act not warranted by public law, if the effect is to endanger the life, health, property, morals or comfort of the public.
• Public = class of persons who come within the sphere or neighbourhood of its operation
• Whether the number of persons is sufficient to constitute a class is a question of fact
• Even if such class is capable of being affected, question still remains as to whether the conduct complained of was capable of being described as the commission of nuisance
• D positioned himself on roof- nothing more- not nuisance. There is no finding that he was creating a noise by attracting crowds or otherwise acting to the discomfort of his neighbours or interfering with their comfort of convenience.

For community-safety context, see NSW Police Force.

3. Interference Must be Substantial and Unreasonable

Inconveniences and annoyances must be expected. Business and commerce must be permitted to effectively operate.

In the absence of negligence, a danger created in the highway as a result of ordinary use by traffic is not a public nuisance: Maitland v Raisbeck – tail light of D’s car was defective, leading to collision. Court concluded that if this was classed as nuisance “it would seem that every driver of a vehicle on the road would be turned into an insurer in respect of latent defects in his machine”.

Temporary obstructions to the use of highway or to the enjoyment of adjoining premises will not give rise to liability in public nuisance where obstruction is reasonable in quantum and duration: Harper v Haden – D had erected only what was necessary and reasonable for the conducts of the works.

If assembly of crowds or queues of people seeking to do business with D who obstruct use of highway may constitute nuisance if crowd is attracted by something done by a D which is not necessary for the bona fide carrying on of the D’s trade: R v Carlile – D held liable when crowd was gathered to watch burning of libellous effigy.

If business is carried on in suitable premises and in a normal and proper manner and there are no reasonable means by which the business could prevent the interference, there is no nuisance: Silservice Pty Ltd v Supreme Bread Pty Ltd

For local-by-law context (works, road closures, construction impacts) refer to your council’s guidance, for example the City of Sydney development pages.

Private Nuisance

Private nuisance arose out of the action on the case and protects a person’s right to the use and enjoyment of their land.

It is a tort which is concerned with property rights.

Often matter between neighbours – people living/working close together.

Plaintiff must establish:

1. Title to sue
2. D had requisite knowledge of the nuisance
3. Nuisance was a substantial or unreasonable interference with P’s right to enjoyment of their land.

“Enjoyment” = Ordinary use of the land

Nuisance may be cause by indirect interference whereas trespass can only result from direct. E.g Aiming hose at neighbour’s land is direct and a trespass whereas constructing a waterspout which diverts water onto the neighbours land is indirect and a nuisance, which is an action on the case: Reynolds v Clarke

A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.” (per Lord Wright in Sedleigh-Denfield v. O’Callaghan (1940) AC, at p 903 )

Private nuisance provides protection for intangible as well as tangible interference. Helpful NSW resources on noise, odour and smoke include EPA noise and NSW Health – Air and odour.

Intangible:

• smell
• noise
• offensive sights

Tangible:

• fire
• leaves
• tree roots
• flood
• dust

Can arise as single incident or continuing course of conduct.

General Rule: Only substantial and unreasonable interference with the use or enjoyment of some right connected with the land can give rise to a private nuisance action.

In the case of interference with enjoyment the question of reasonableness will include factors such as:

• the locality of the nuisance; and
• the utility of the D’s behaviour: St Helen’s Smelting v Tipping

1. Title to sue

Only a person who has rights in or over property has standing to sue – concerned with protecting P’s right to enjoyment of land.

E.g Person much be owner or tenant of property who is in actual possession of property and who has the right to exclusive possession: Hunter v Canary Wharf Ltd

Owner who has reversionary interest in property cannot sue – ie. owner who has leased property UNLESS the nuisance is of sufficiently permanent character so as to damage his or her reversion, for example permanent devaluation of the property: Hunter v Canary Wharf Ltd

Immediate family members who do not possess the right to exclusive possession do not have standing:

• Oldham v Lawson: P’s were husband and wife. Held: husband had no title to sue as he was a mere licencee, whereas the wife as the owner had title to sue.
• Khorasnandjian v Bush: Immediate family members who reside on the premises but do not have right to exclusive possession permitted to sue.
• These cases no longer authoritative as they turn tort against the land to tort against the person

2. Requisite Knowledge

3 (a). Interests Protected

The tort centres on interest in the land that is affected.

D’s conduct must impact on P’s land as a form of interference to the enjoyment of the land in question.

• Victoria Park Racing v Taylor (D constructs a platform on his land to view and comment on races taking place on P’s land)
• Thomson v-Schwab v Costaki (prostitutes in the neighbourhood found to e offensive)

Interests protected by nuisance include those to do with:

• land itself (that is, protection against physical interference with the land itself);
• a person’s enjoyment of the land (interference with a person’s enjoyment or use of the land)
• interest in certain rights in the land

For strata and neighbour disputes in Sydney, see NSW Fair Trading – Strata disputes.

Balancing of Interests

Sic utere tuo ut alienum non laedas (“Use your own thing so as not to harm that of another”) – Reasonableness.

• Gray v State of New South Wales Matter No 2391/96 (31 July 1997) : The law in this sort of case is tolerably clear. The law of nuisance, the tort upon which the plaintiffs sue, is not to protect people, but to protect property values. That is so because it is an ancient remedy that has come down through the ages. Thus the mere fact that one is disturbed by noise or one gets irritated by prying children or one’s privacy is invaded is not sufficient to make out the tort of nuisance…. The plaintiffs are, however, entitled not to have the value of their property diminished by the noisy activities of the defendants (Young J)

• Interference with enjoyment of the land

Can be tangible and intangible.

Tangible = indirect injury to the land, ie. flooding, fire or vibrations, tree roots encroaching, dust.

Intangible = “sensible personal discomfort” (St Helen’s Smelting Co v Tipping) ie. noise, smell, offensive sights.

St Helen’s Smelting Co v Tipping distinguished difference between tangible and intangible. Held: where “sensible personal discomfort” was at issue, the locality was vital and that in a largely manufacturing district, a landowner must put up with some inconvenience arising from trade operations which are necessary for commerce, but that where physical damage to the land was involved this did not apply and nuisance must stop.

QUESTION TO ASK: was inconvenience arising from trade necessary for commerce? If yes, no nuisance.

Physical damage includes:

• contamination of land by radioactive or other material
• damage to plants growing on the land
• damage to the buildings on the land, e.g encroaching roots might damage a wall

See also environmental reporting lines at EPA Report a Problem.

Protecting certain rights relating to land

Nuisance includes interference with certain rights such as:

• easements: Paine & Co Ltd v St Neots Gas & Coke;
• support of land

Example: interference with right to support of land in its natural state so that if the D excavates in such a way that the neighbour’s land collapses because of lack of support, is a common law nuisance. For development guidance in NSW, see the NSW Planning Portal.

Interests not protected

Some invasions have been found not to qualify as private nuisance by their very nature.

E.g. Land owner does not have right to:

• natural light: Tapling v Jones ;
• to a view from his property: Kent v Johnson
• unhindered television reception: Hunter v Canary Wharf
• no interference whereby others can see into another person’s property: Victoria Park racing v Taylor

3(b). Unreasonable Interference

Modern society must make some allowance for actions of neighbours: Kennaway v Thompson

A balance must be struck between D’s right to use property and P’s right to enjoy their property; legal intervention is warranted only when interference goes beyond what others in the vicinity should be expected to bear.

Interference must be of a substantial and unreasonable nature to qualify as private nuisance.

Determining if D’s act is substantial and unreasonable – Court seeks to balance the competing interests of both parties. Court will weigh the nature and circumstances of the D’s activity and the character of the resulting interference against the P’s interest.

Munro v Southern Dairies: Assessment of Competing Interests

• Where the interference is with personal comfort, it is not necessary in order to establish a nuisance that any injury to health should be shown. It is enough that there is a material interference with the physical comfort of human existence reckoned …“not merely according to elegant dainty modes and habits of living, but according to plain and sober and simple notions among the…people”: Walter v Selfe
• …That the complaints were substantial complaints, I for one, am satisfied, and I certainly protest against the idea that, if persons, for their own profit and convenience, choose to destroy even one night’s rest of their neighbours, they are doing something which is excusable. To say that the loss of one or nights rest is one of those trivial matters in respect of which the law will take no notice appears to me to be quite a misconception… Temporary interference can still be substantial.
• The test which the law applies is not the test of an abnormal sensitiveness.
• Law: A man is entitled to the enjoyment of his dwelling-house. If his neighbour makes noise as to interfere with the ordinary use and enjoyment of his dwelling, so as to cause serious annoyance and disturbance, the occupier is entitled to be protected from it: Broder v Saillard
• The fact that a business may be so carried on as to be useful to the public, or even important from the point of view of public benefit, is insufficient to justify what otherwise would be a nuisance.
• …it is important to consider the locality and whether the inconvenience complained of is characteristic of the neighbourhood.
• Is the interference an essential and unavoidable incident of the conduct of the D’s business in that locality?
• Factors considered: duration, frequency, extent, timing and locality of the interference.

Assessment of Defendant’s Activities

Defendant’s actions and the usefulness of D’s conduct are considerations in assessing the “give and take”.

Sometimes, intention of D is relevant.

Hollywood Silver Fox Farm v Emmett: Intention of D

• Suppose the D had shot in his own ground, if he had occasion to shoot, it would have been one thing; BUT to shoot on purpose to damage the P is another thing and a wrong: referring to Keeble v Hickeringill
• There is authority that in an action for nuisance by noise the intention of the person making the noise may be considered. Where noise is made maliciously different considerations apply.

Who can be sued?

1. Creator of the nuisance
2. A person authorising the nuisance
3. A person continuing or adopting the nuisance

1. Creator of the nuisance

Not necessary for the D to be the occupier of the land to be held liable.

Example: excavator found liable: Pantalone v Alaouie

Creator of nuisance is strictly liable for nuisance he/she creates. This is even when they are no longer occupier of the land from which the nuisance emanates – they just have to have created it: Roswell v Prior

2. Authorising the nuisance

If an occupier permits other to undertake activities that constitute a nuisance, then the occupier is also liable for the nuisance created by that individual: De Jager v Payenham

Landlord is not liable for tenants’ nuisance unless he/she had authorised it, and if terms of tenancy expressly prohibit the creation of a nuisance, they can’t be liable: Peden Pty Ltd v Bortolazzo

3. Continuing or adopting the nuisance

Person who does not create nuisance but continues or adopts it can be liable.

Stockwell v Victoria

• The modern law can be summarised as follows. Where a nuisance has been created by the actions or omissions of a trespasser, or by some other means, without the actions, omissions, authority or permission of occupier of land, the occupier is liable if he has knowledge or ought to have known of the existence of the nuisance, it is foreseeable that damage could occur, and he fails to comply with the measures of duty of care to abate the nuisance.
• Measured duty of care considerations – per Leakey.

See general civil-claims guidance at NSW Local Court – Civil and NSW Supreme Court.

Animals and Nuisance

Nuisance sometimes caused by animals entering land and distressing stock or harming property on the land.

The rule of (Scienter) – strict liability proceeds upon the basis of the classification of the animal; liability depends on whether the animal is classified as wild or domesticated.

Public and private nuisance are available for damage caused by animals.

Example:

• Public nuisance will arise where an animal obstructs a highway.
• Private nuisance will arise where animals are kept in large numbers and therefore cause offensive smells or noise.

For animal control and local orders, check your council or the NSW Office of Local Government – Pets.

Defences – page 779

Where D’s conduct is neither unreasonable nor excessive P cannot claim

• Robinson v Kilvert (27 degree heat generated as a result of D’s work in lower floor causing damage to P’s sensitive paper)

But where D’s conduct even though slight, but is malicious, P can claim

• Hollywood Silver Fox Farm Ltd v Emmett (gunshots to frighten P’s vixen and to discourage P from setting up farm. Pretext that the shooting was to keep rabbits off the property was not accepted)

There are a number of defences:

• Prescription: Occurs where nuisance has been carried on openly, continuously and as of right for at least 20 years
• P’s conduct or consent – commonly used
• Statutory Authorisation – common
• Contributory Negligence

York Bros v Commissioner of Main Roads held it is no defence to nuisance that the activity in question benefits the public.

The fact that the fire started accidentally is not a defence – not applicable in NSW. See NSW Rural Fire Service for bushfire safety context.

1. Conduct or consent

If P expressly consents there is no nuisance.

Toleration is NOT evidence of P’s implied consent.

Cannot argue that P came to nuisance and this act means that P has impliedly consented: Sturges v Bridgman

Proprietors Strata Plan v Cowell held that it was no defence to the P’s claim for damage caused by tree roots that the tree’s roots had encroached upon the P’s property prior to the building of the units nor that the units had been erected close to the boundary and that this had contributed to the problem.

2. Statutory Authorisation

It is a defence to nuisance that the legislature authorised the commission of the nuisance.

However, legislatures do not override common law rights unless there is clear language to this effect. Therefore it is not sufficient for any activity to be authorised by statute.

The conduct must be expressly or impliedly authorised or the nuisance must be a necessary incident of the authorised activity. Matter of statutory construction:

• Allen v Gulf Oil Refining Company : Held that whilst the statute did not expressly confer authority to commit the alleged nuisance, if the nuisance arose as the inevitable result of operating a refinery, then power to construct and operate the refinery must, by necessary implication, include authority to commit the nuisance.

See NSW Legislation for Acts and regulations relevant to land use and environmental controls.

Remedies

1. Damages

Remoteness: Test of remoteness as applied to the case of negligence applies in nuisance: Overseas Tankship v Miller Steamship Co

This depends, I think, on whether the injury may reasonably be foreseeable

As far as assessment of damages is concerned a defendant will, upon the basis of the test of remoteness of damage, only be liable for that kind of damage which was reasonably foreseeable.

For general guidance on court fees and processes, see court fees and the Service NSW portal.

2. Injunction

Issue which the court will face is whether damages will sufficiently compensate the P for the injury or harm sustained.

If damages suffice, an injunction will not be granted.

1. Interlocutory injunction
2. Permanent Injunction

3. Abatement of nuisance

Who bears the cost of abatement? Normally the abater does, but see Proprietors-Strata Plan No 14198 v Cowell where it was held that D may be required to bear cost if the steps taken by P to abate were in reasonable mitigation.

For tailored advice on a nuisance dispute in Sydney, contact Jameson Law or call (02) 8806 0866. Our Legal Resources hub and civil litigation team can help you understand options, evidence and likely outcomes.