LAWS1012 Lecture Notes - Lecture 6: Noise Music, Misfeasance, Tortious Interference
16 May 2018
School
Department
Course
Professor
Week 6: Private nuisance
• Countervailing or complementary cause of cause of action to trespass to land
• As we have seen, the essence of all forms of trespass are a direct interference with a legally
recognised right
• Private nuisance and trespass to land are mutually exclusive
o Trespass to land: someone gone onto land directly
o Private nuisance: someone has not gone onto land but has done something outside of the land
that has the consequence of interfering with the plaintiffs ordinary use and enjoyment of land
• Private nuisance is an action on the case for unlawful, unreasonable and substantial interference with
the use or enjoyment of the land. Such unlawful interference may take many forms such as in noise,
vibration, pollutants, fire, water and perhaps, sex workers emanating from adjoining premises
• Private nuisance, unlike trespass is derived from action on the case, so it is not any interference with
the land, so sometimes defendants will engage in entirely lawful conduct which may interfere with
someones use and enjoyment of land, but it is a function of living in a built up community that you
might have your use and enjoyment interfered with in some way
• Not just any interference, must be substantial and unreasonable
• Categories of private nuisance, and the rights attached to possession of land is not prescribed
• Sic utere tuo ut alienum non laedus sic utere: You are entitlted to use your land so long as it does
not interfere with the use of someone elses land
• Liability is strict if the nuisance arises out of misfeasance (wrongful activity) but negligence-based, if
it arises out of non-feasance or an omission to remedy to an existing nuisance
• Types of private nuisance:
o An encroachment onto private property short of trespass
o Causing physical damage to a neighbours land, and building or and vegetation on it; or
o Interference with the neighbours comfort and convenient enjoyment of his or her land
Title to sue
• If you want to sue for private nuisance, you must have a possessory interest in the land and a right
recognised by law as being an incident of or attached to possession free from offensive smells or
vibrations
• Oldham v Lawson [1976] VR 654:
o The facts: Plaintiffs were a arried couple living in a house owned by the wife only. There was
a noise (music) emanating that was considerd a nuisance (we will later see that excess noise
is very clearly a private nuisance).
o The issue: Can a mere licensee sue for private nuisance? Did both the plaintiffs have title to
sue?
o Outcome:
A licensee (the husband) without exclusive possession cannot maintain an action in
trespass or nuisance
The wife had allowed him to live there but he had no possessory interest in the land
o Principle: A mere licensee cannot sue for private nuisance
• Hunter v Canary Wharf [1997] AC 655
o Canary wharf built a tower that blocked the (unter communitys television signal so they
had to pay for a relaying system. During the construction, there was also a nuisance of dust
excavation that went onto the surrounding residents houses.
o The issue: Did all of the claimants have a title to sue? Some of the plaitniffs had clear
possessory interest in their land, such as the tenants. In a number of instances, however,
people without a clear possessory interest also tried to sue.
o Outcome:
Licensees do not have title to sue
Goff emphasized that private nuisance is a tort that protects interests in land. It is a
tort to LAND not the PERSON.
Rights and interests are conferred upon possessors of land, not mere licensees
Difficulty of allowing other claimants to have a remedy because where is the
find more resources at oneclass.com
find more resources at oneclass.com
principle of limitation, as the categories of persons to which you could provide
protections can extend too far
o Principle:
Title to sue in nuisance is actual and exclusive possession of the land affected
A mere licensee does not have title to sue
Interests in the use or enjoyment of land protected by private nuisance
• Interference has to be subsstnatial and unreasonable to be actionable. This is judged on a case by
case basis. The conflicting interests of the occupier using the land and those with the neighbours in
the enjoyment of the land have to be balanced. This is called the balancing test. It considers:
1. Nature of the interfering act
2. Location
3. Frequency
4. Time and duration
5. Motivation (malice v social utility); and
6. Manner in which it is carried out (uncertain, ongoing)
• Thompson-Schwab v Costaki [1956] 1 WLR 335
o The facts: The defendant owned a brothel and the employees would solicit customers to
come, by standing around the area. At all hours of night and day there was prostitution
outside Thompson-Schwabs home.
o The issue: Was this a private nuisance?
o The outcome:
It was actionable as a private nuisance
The use and enjomynet of the land extended to not having prostitutes solicit
customers outside.
It was not common for it to happen in the neighbourhood – he lived in a nicer
neighbourhood
o Principles established:
The test is whether the act interferes with the comfortable, convenient use of the
land, having regard to the uses of land by civilized society and to the characteristics
of the neighbourhood
• Victoria Park Racing and Recreation Grounds Co v Taylor (1937) 58 CLR 479
o The facts: The plaintiff owned a racing track, which charged admissions to people who placed
bets on the races. Taylor built a platform on this land to view the races and odds being given
at the track. Taylor broadcasted this information to people participating in off-track betting.
The plaintiff argued that ticket sales were lower due to Taylor. It was claimed that Taylor
was profiting at the expense of the plaintiff where people would only listen to the ratio rather
than come to the racecourse.
o The issue: Was the defendant acting as a nuisance, resulting in an unreasonable and
substantial interference with the plaintiffs use and enjoyment of property?
o Outcome:
English law has not recognised a general right to privacy, nor freedom to view or
freedom from inspection. If someone can look into your property, that has never
been actionable as nuisance, if they have a natural advantage (e.g. from a higher
area)
)f you dont like being observed, build a higher fence, as a response to intrusion
Contra DENTAL CASE: injunction was granted where the dental clinic did not wish to
be overlooked – the general proposition that the right to privacy and freedom from
inspection in the tort of private nuisance is not recognised, can be reconciled if you
accept hat in certain circumstances, that the nature of the defendants conduct can
transform an action into one that constitutes a private nuisance.
No, the defendants actions id not interfere with the racing course itself. )t must be
proven that there is an interference with recognised proprietary rights or interests
o Principles established:
The action in nuisance protects an occupier from unreasonable interference with
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Interference with the neighbours comfort and convenient enjoyment of his or her land. Did both the plaintiff(cid:495)s have title to sue: outcome: A licensee (the husband) without exclusive possession cannot maintain an action in trespass or nuisance. Some of the plaitniffs had clear possessory interest in their land, such as the tenants. In a number of instances, however, people without a clear possessory interest also tried to sue: outcome: Licensees do not have title to sue. Goff emphasized that private nuisance is a tort that protects interests in land. It is a tort to land not the person. Rights and interests are conferred upon possessors of land, not mere licensees. Difficulty of allowing other claimants to have a remedy because where is the principle of limitation, as the categories of persons to which you could provide protections can extend too far: principle: Title to sue in nuisance is actual and exclusive possession of the land affected.
