Nuisance

Planning Permission

6.3.1 Gillingham BC v Medway Dock Co Ltd [1993] QB 343.* Buckley J said at p 359:....planning permission is not a licence to commit nuisance and... a planning authority has no jurisdiction to authorise nuisance. However, a planning authority can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of rendering innocent activities which prior to the change would have been an actionable nuisance. 6.3.2 However, in Wheeler v JJ Saunders Ltd [1995] 3 WLR 466,* the UK CA was at pains not to allow the Gillingham decision to apply to every planning decision. It was confined to situations where a major development alters the character of the neighbourhood with wide consequential effects such as require a balancing of competing public and private interests before permission is granted

Damages

7.1 Damages: The plaintiff is entitled to full restitution for loss, as in trespass. He or she should be returned to the position held prior to the nuisance occurring. Past loss only can be recovered at common law, though the plaintiff can go back for more if the nuisance continues. In general, damages for physical loss are easier to calculate than that for interference to comfort and convenience. Damages may be awarded for personal discomfort, annoyance, inconvenience, injury to health (subject to ARCIA), physical damage to land, buildings and chattels, for depreciation in value, loss of profits through restrictions on use of land, and loss of enjoyment. Equitable damages, which are in addition to or in substitution for an injunction, can cover past and prospective loss. Therefore recovery of damages is possible when a tort is merely apprehended. This could encourage the belief that one can buy a right to commit a tort

State of affiars left to continue by defendant

French v Auckland CC

Liabiliaty of Lessors

General rule is landowner is not liable for the acts of his or her tenants because it is the teneant who is in possession of the land. However, the landlord usually retains a duty to repair or a right to enter for this purpose, even though possession is given up. Liability in nuisance can therefore lie if harm results from the disrepair of a let neighbouring property.

Commerical Operations

Gillingham BC v Medway Dock Co Ltd Those who live close by public highways must accept the inevitable disturbance for the greater good of the public. The planning permission had granted a change of use to the land, so that nuisance is looked at thereafter by reference to a neighbourhood with that development or use and not as previously.

Complete default of the plaintiff

If the escape is solely due to the plaintiff then a defendant is not liable Dunn v Birmingham Canal

Act of a Stranger

If the escape of the relevant thing is due to the act of a third party, there may be a defence where the third party is not an independent contractor or employee or agent for whom one is vicariously liable. But the focus is on the extent to which the occupier should reasonably have been expected to anticipate the third party's presence and actions. There appear to be two tests - where the third party is on 'a frolic of his own' where foreseeability is relevant, and a stricter test of potential control. The third party's act must be conscious and deliberate. Holderness v Goslin [1975] 2 NZLR 46. The power of control which the occupier has over the person who came onto the property and committed the tortious act. Once the power exists to control activities of the visitor or licensee, even if the power is not exercised, the licensee or visitor ceases to be a visitor.

Bloodworth v Cormac

Necessary to establish a serious interference with comfort according to the ordinary notions prevalent among reasonable persons. Nuisance takes no account of the special needs of invalids nor of the exceptionally delicate nature of the operations conducted by an injured party. • Places of entertainment are in no better position than places carrying on a useful trade; • As to useful trades, nuisance will be actionable although public benefit outweighs the loss inflicted on the individual; • A certain amount of noise must be tolerated accompanying and incidental to the reasonable recreation of a crowded population, but far too much of it should not be tolerated; • The operations of defendants were to be looked at not in the abstract, but in all the circumstances of the locality.

Ordinary or Natural use

New Zealand Forest Products v O'Sullivan [1974] 2 NZLR 80. A non-natural use of land is a special use involving acts so fraught with risk to others as not to be reasonably incident to its proper enjoyment

Interference with TV

Nor-Video Services v Ontario Hydro (1978) 84 DLR (3d) 221....in this day and age (tv reception) is simply one of the benefits and pleasures commonly derived from domestic occupancy or property; its social value and utility to a community...cannot be doubted,

Refusal to grant electronic access

Wu v Body Corporate Refusal of electronic access via common areas in building housing body corporate units unless claimants agreed to protocol and payment of security deposit. Plaintiff member of Body Corporate that controlled common areas and owned individual unit too.

St. Helens Smelting Co. v Tipping

...interference with one's enjoyment, one's quiet, one's personal freedom...whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances where the thing complained of actually occurs. If a man lives in a town, of necessity he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, also for the enjoyment of property, and for the benefits of the inhabitants of the town and of the public at large

Liability for the escape of fire

.2 But there was no liability for fires which accidentally began because it was seen as too harsh to apply strict liability in such circumstances. 5.3 Now, an occupier will be liable for escape of a deliberately lit fire only if the plaintiff can prove that the occupier or someone for whom the occupier is responsible was negligent in lighting the fire or allowing it to spread, or that the lighting of the fire amounts to a non-natural use of the land so as to attract strict liability under Rylands. 5.4 However, where a fire ignites from unknown or natural causes (no intention or negligence) from combustible material brought onto the defendant's land as a non-natural use, and escapes without negligence, liability is based on a modified version of Rylands which sets out three conditions:

Types of interference with use of land

2.1 Interference breaks down roughly into: 2.1.1 that which results in TANGIBLE physical damage to the land (including buildings), such as subsidence, flooding, fire, vibrations and the like; 2.1.2 that which results in INTANGIBLE damage, such as disturbance of the comfort, health, and convenience of the occupant by offensive smell, noise, smoke, dust, or by reasonable fear for safety or health.

Public Nuisance

A nuisance which is so widespread in its range and effects it would not be reasonable to expect one person to take proceedings to stop it, so that an action on behalf of the general public may be brought. But where a person has suffered particular damage over and above the general inconvenience suffered by the public, she or he is able to bring a claim in tort. The tort covers such areas as use of public highways and waterways, public health and safety, public morality and general comfort and convenience of members of the public.

Hamilton v Papakura District Council and Water care services

A special form of nuisance which extends strict liability to some situations where damage results from an isolated escape of something harmful from the defendant's land.

Ordinary and Reasonable use of land

Bamford v Turnley those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action...There is an obvious necessity for such a principle... It is as much for the advantage of one owner as of another: for the very nuisance the one complains of, as the result of the ordinary use of his neighbour's land, he himself will create in the ordinary use of his own, and the reciprocal nuisances are of a comparatively trifling character. The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live

Specific examples of nuisance: Smell

Barr v Biffa

The NZ cases indicate it will be difficult, if not impossible, to successfully argue a resource consent under the RMA as a defence to a nuisance action.

Barr v Biffa Hawkes Bay Protein Ltd v Davidson [2003] 1 NZLR 536. Resource consent could be relevant to assessing character of area, but was not a defence.

Cambridge water

Cambridge Water Co v Eastern Counties Leather PLC. ...foreseeability of damage of the relevant type should be regarded as a prerequisite of liability in damages under the rule' in R v F. (Ld Goff, p 80).

Abatement

Can redress harm by removing it, must give notice ( unless emergency)

Hamilton & Anor v Papakura District Council & Anor

Could Watercare have foreseen that after run-off into the water storage reservoir with its consequent dilution, the town water would have proved toxic to plants sensitive to very low levels of contamination?

Haddon v Lynch

Haddon v Lynch [1911] VLR 5. A plain, sober and simple notion to object to being roused from sleep by a bell when lying in bed at 7.30am on Sunday morning. . ...without any disrespect treating the church for that purpose as if it carried on a trade, I say that the early morning bell is not a necessary incident of its trade. it is not wanted to attract customers...It merely announces the time for attendance in a manner uncalled for in these days of cheap clocks and watches....I hold the early-morning ringing to be an unreasonable disturbance of the plaintiff's comfort - a nuisance...(p 11). Hsu v Weddings Etc Unreported, High Court, Auckland, 5 August 2009, CIV-2009-404-1077.

Continuing versus isolated events

Hamilton & Anor v Papakura District Council & Anor

Noise

Hsu v Weddings etc

Reasonableness of use

Hsu v weddings etc barr v biffa

Who can sue

Hunter v Canary Wharf [1997] 'On the authorities as they stand, an action in private nuisance will only lie at the suit of a person who has a right to the land affected.' (Lord Goff, 695). 'I can see no good reason to depart from the law on this topic as established in the authorities'(p 697). Khorasandjian overruled.

Injunctions

Injunction: an equitable and therefore discretionary remedy. Injunctions do not issue against the Crown but an order can be made declaring the rights of the parties. 7.2.1 Prohibitory injunctions (the most common) restrain the doing or continuing of certain acts (the negative form). 7.2.2 Mandatory injunctions order something to be done where there is a wrongful omission (the positive form). 7.2.3 Quia timet injunctions are injunctions to prevent an apprehended legal wrong, although none has occurred at present, and the applicant is without any remedy at law.

Redland Bricks v Morris

Lord Upjohn ...the granting of an injunction is in its nature a discretionary remedy, but [entitlement is] 'as of course' which comes to much the same thing. ...the grant of a mandatory injunction is entirely discretionary and can never be 'as of course'. Every case must depend essentially on its own particular circumstances. • a mandatory injunction can only be granted where the plaintiff shows a very strong probability on the facts that grave damage will occur • damages will not be a sufficient remedy in these cases • the question of cost to the defendant is relevant and to be taken into account • the order is to be granted with caution, sparingly but unhesitatingly where necessary • if granted, the court must ensure the defendant knows exactly what to do as a matter of fact.

The person with control over the land may also be liable

Page Motors Ltd v Epsom & Ewell BC (1982) 80 LGR 337. A duty to end the nuisance within a reasonable time, knowing as the defendant did of the nuisance. A reasonable time to be determined by considering all factors, being the defendant's physical and financial resources, and also its public duties, political pressure brought to bear on it and the need to engage in dialogue with interested parties.

Hsu v Weddings etc

Private nuisance is about conflict over competing uses of land, and defining the obligations of neighbourliness. The action complements that in trespass because that civil action protects the related interest in exclusive possession.

Hamilton and Anor v Papakura District Council and Anor re rylands

Rylands is a form of nuisance. 'We consider it must now be taken as clear that foreseeability is an element necessary to establish liability under Rylands. Of course, once it has been shown that the damage was foreseeable, it is irrelevant that the actual act causing the damage was not the fault of the defendant, or that the defendant acted with reasonable skill and care. This applies equally to the law of nuisance as to the rule in Rylands.'

Sensitivity of the plaintiff

Robinson v Kilvert A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade (p 97).

Fault

The Wagon Mound (No 2) [1966] 3 WLR 498*....although negligence may not be necessary, fault of some kind is almost always necessary and fault generally involves foreseeability. ...It is not sufficient that the injury suffered ...was the direct result of the nuisance if that injury was in the relevant sense unforeseeable.( Lord Reid).

Who is liable

The creator of the nuisance Thompson v Gibson (1841) 7 M & W 456. ...he that does the first wrong shall answer for all consequential damages.(p 461) Wu v Body Corporate 366611 [2015] 1 NZLR 215 (SC) Refusal of electronic access via common areas in building housing body corporate units unless claimants agreed to protocol and payment of security deposit. Plaintiff member of Body Corporate that controlled common areas and owned individual unit too. Emanation from defendant's land required.

Character of Neighbourhood

The defendant cannot argue in a case where actual physical damage is inflicted that the damage was only what was to be expected in the particular area. The surrounding circumstances can be relevant when interference to use and enjoyment is alleged, however.

No Right to a view

Victoria Park v Taylor (1937) 58 CLR 479,*...the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers or of other persons who enable themselves to overlook the premises.

Nature and Extent of Harm

Walter v Selfe ....ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?(

Act of God

Where escape occurs naturally, without human intervention and could not have been foreseen or guarded against, this defence could arise, though it has not been successfully pleaded very often. Given the encroachment of negligence principles, it has probably been replaced by the foreseeability of harm principle

BNZ v Greenwood

Whether a reasonable person, living or working in the particular area, would regard the interference as unacceptable. A reasonable person was a person whose notions and standards of behaviour and responsibility correspond with those generally obtained among ordinary people in our society at the present time, who seldom allows his emotions to overbear his reason and whose habits are moderate and whose disposition is equable.

Rylands v Fletcher

the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape

Satutory Authority

whether such authority for the actions which would otherwise be a nuisance amounts to a defence depends on the intention of Parliament revealed in the words used in the legislation. The question is whether or not immunity has been conferred, and whether the power has been exercised reasonably. 6.2.1 Where the statute authorising the action provides for compensation for those suffering harm as a result, it is generally assumed immunity is conferred. 6.2.2 Where the thing authorised is in the public interest and not for private gain, it is arguable that immunity has been conferred. 6.2.3 Conversely, where the thing authorised is a private venture, the body should act on equal terms with any private enterprise and without prejudice to private rights. 6.2.4. The more insignificant the power and the wider the group authorised to exercise it, the less likely immunity has been granted. Barr v Biffa

Modified Rylands for escape of fire

• The defendant brought onto his land things likely to catch fire, and kept them such that if they did ignite, the fire would be likely to spread to the plaintiff's land; • This was done in the course of a non-natural use of land; • The thing ignited and the fire spread. Burnie Port