Torts - nuisance

Matheson v Northcote College Sedleigh-Denfield French v Auckland City Corp Leakey Page Motors Liappatt Occupier cases

Matheson v Northcote College [1975] 2 NZLR A state of affairs continuously repeated. - students harrassing neighbours. Occupiers strictly liable for nuisances created on land by people under their control Sedleigh-Denfield v O'Callaghan [1940] AC 880....an occupier of land "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. He "adopts" it if he makes any use of the erection...which constitutes the nuisance. (p 894). - French v Auckland City Corp [1974] 1 NZLR 340. - thistles - council could be said to have a duty to stop them spreading. - Leakey v National Trust [1978] 2 WLR 774* A duty to check a bank and prevent a substantial fall of earth. A limited duty in the nature of negligence to do that which is reasonable in the circumstances. - 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. - Liappiatt v South Gloucestershire Council [2000] QB 51 (CA). Travellers on council land - acts were, to the knowledge of the council as occupier, committed by persons based on its land. Claim successful even though on p's land

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.

A-G v Abraham & Williams Ltd [1949] NZLR 461.* A-G v PYA Quarries Ltd [1957] 1 All ER 894 Example of AG cases

- A-G v Abraham & Williams Ltd [1949] NZLR 461.* cattle groundm had been on outskirts, now city - loud, dirty, smelly - clean water an issue - public nuisance= smell and danger to public health - but there had to be some tolerance bc they had been there for years - A-G v PYA Quarries Ltd [1957] 1 All ER 894....a public nuisance is 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. (p 908) Romer J said any nuisance is "public" which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. ...the question whether the local community within that sphere (of nuisance) comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary... to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected

Harris v James Smith v Scott Southwark (Liability of lessors)

- At common law, liability of landlords is based on authorisation. This will be the case where the creation of the nuisance is the natural and necessary consequence for carrying on activity for which the property was let (Harris - The act of the tenant is that of the landlord). - Smith v Scott: council moved annoying family, created probs for neighbours, council knew they unruly, moved to new tenancy on condition they'd be good - they weren't - council had not expressly/implied authorised nuisance - Southwark London Borough Council v Mills ; Baxter v Camden London Borough Council [1999] 4 All ER 449 (HL). Flats without soundproofing. Landlord not liable for authorising activities of tenant if those activities not in themselves a nuisance. Ordinary use of residential premises not a nuisance.

Bridlington Relay v Yorkshire Electricity Board Nor- Video v Ontario Hydro Hunter v Canary Wharf [1997] 2 WLR 684, *HL Radiocommunications Act 1989 s105 Interference with television reception)

- Bridlington Relay v Yorkshire Electricity Board [1965] 1 All ER 264. Interference with a purely recreational facility. Occasional, if severe interference would not constitute a nuisance. - 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 - Hunter v Canary Wharf [1997] 2 WLR 684, *HL. TV reception interfered with by erection of large building - like your view being interferred with - was not in activity of building but shadow of building - Radiocommunications Act 1989 s105: specifies a cause of action for interference in radiocommunication receivers:

British Celanese v Hunt Hamiton & Anor v Papakura District Council (Continuing versus isolated events)

- British Celanese v Hunt [1969] 1 WLR 959.- An isolated happening by itself could create an actionable nuisance. - Hamilton & Anor v Papakura District Council & Anor [2000] 1 NZLR 265 (aff[2002] UKPC 9). '...an isolated escape can give rise to an action in nuisance.' (at 282) - an intermittent noise, especially when it does not come at stated intervals, is likely to be more disagreeable than if it was constant (Rapier)

Amalgamated Theatres v Charles S Luney [1962] NZLR 226 Tate & Lyle Industries Ltd v GLC Halsey v Esso R v Shorrock Coldicutt v Ffowcs-Williams (obstruction of highway)

- Charles: - theatre which used to be a Square. Suffered drop in takings when Govt life buildings erected - less thoroughfare - some obstruction expected. theatre = special loss. Tate & Lyle Industries Ltd v GLC: siltation of a navigable river caused by poorly designed ferry terminals - Halsey v Esso Petroleum: as discussed Lyons v Gulliver [1914]: causing queues to form is actionable Shorrock: - even if you not present but you knew you can be liable (acid) Coldicutt: wall built on paper rd actionable

Colson v Lockley Park Hawkes Bay Protein Ltd v Davidson Barr v Biffa Waste Services Ltd Smell (unreasonableness)

- Colson v Lockley Park [1986] NZLJ 31. Nuisance caused by a smell. Arguments as to use in particular area are of less avail where actual physical damage is done. - Hawkes Bay Protein Ltd v Davidson [2003] 1 NZLR 536. Smell usually transitory but if it continued, could reduce amenity value of land. Barr v Biffa Waste Services Ltd [2011] EWHC 1003 (TCC).* - accumulation of waste

Gillingham BC v Medway Dock Co Ltd Wheeler v JJ Saunders Ltd Planning permission

- 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. - 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. (by Peter-Gibson LJ)

Statutory authority (defence)

- where P has authorised the d to undertake a particular actitivity, the authorisation will carry w it a liability from any nuisance created as an inevitable consequence of carrying out that activity. Must be authorised by P, and the power must be used reasonably

Commercial operators (sensitivity of plaintiff)

- Halsey v Esso Petroleum - oil depo, p lived nearby, emission of acid - damages to clothes on clothesline, noise from boilers, tankers etc that came into depo at night - Gillingham BC v Medway Dock Co Ltd [1992] 3 WLR 449 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.

St Helens Smelting Co v Tipping Character of neighbourhood (unreasonableness)

- If actual physical damage has resulted then character of neighbourhood is not relevant. The surrounding circumstances can be relevant when interference to use and enjoyment is alleged. -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. - St Helen's: p owned large estate in area which had become devoted to industrial use. Fumes from d's smelting works damages trees and shrubs on property. D argued that reference to the neigbourhood must be made but this was rejected due to the actual physical damage - as long as damage is "more than trivial" (Halsey) this will be the case

Abatement (remedy)

- In some cases the plaintiff can redress the harm by removing it. Where this can be done without entering the defendant's land, no notice is required. Confined to clear and simple cases where urgency is key. - Otherwise, notice must be given to enter property, unless there is an emergency. If consent is given, entry and abatement may follow, but care is required. Failure to abate does not prejudice a claim to damages or an injunction.

Class of subjects

- It is unclear just what constitutes a sufficient number to be a class of subjects to qualify as being affected by a public nuisance - AG v Orange Productions: festival planned, nude bathing, sex, drugs, language etc = fear and apprehension can be enough to amount to public nuisance -However, if it is a substantial interference with a right enjoyed by the public generally, there will be a public nuisance even if only one or two people are actually affected. (PYA Quarries)

Licensors/independent contractors liability

- Licenses vary a great deal but because in nearly all cases a licensor retains the right to possession of the land, they would usually be held liable for a state of affairs existing on the land. Comes down to whether you have authorised activity Employers have been held liable in the past for the acts of their independent contractors, on the grounds that the activities would clearly lead to injurious or hazardous consequences

Lytlleton Times Co Ltd v Warners ltd Consent (defence)

- Lyttleton: parties in agreement where a's printing premises leased and respondents used upper floors sued as bedrooms for hotel. Annoyance and disturbance caused to hotel guests by A. Had agreed A would continue normal printing things so this failed. - however, it is not a defence that someone came to the nuisance - that they knew that land was subject to it and then moved it anyway - this cannot be a defence

Metropolitan Asylum District v Hill What is reasonableness? (statutory authority)

- Metropolitan: a general power to provide hospitals did not authorise provision of a smallpox hospital in a densely populated area

Sedleigh Goldman v Hargrave Fault based liability for continuing nuisance

- Nuisance is continued if occupier knows/ought to have known of its existence on the land and fails to make prompt/effective steps to remove it Sedleigh - pipe not properly fixed in place - pipe became choked w leaved and caused damage to neighbour's prop - adopted it by making use of pipe to drain own land Goldman v Hargrave - extended Sedleigh to cover dangerous conditions arising from natural forces - failing to extinguish fire in tree (lightening) - The Wagon Mound (No 2) 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).

Strict liability for creating a nuisance

- Occupier personally or someone that they are responsible for - have to show that all precautions and due skill and care has been taken to prevent unreasonable interference to neighbour See: Matheson. Lippiatt (liable) Purposes of entertainment (Sloane) liable. Liability for guests (Boulcott)

Paxhaven Holdings Ltd v AG Masters v Brent Khorasandjian v Bush Hunter v Canary Wharf (Who can sue? - cases)

- Paxhaven Holdings Ltd v A-G Sufficient possessory right. This case also affirmed that defacto possession is sufficient. - Masters v Brent LBC [1978] 2 WLR 768. On the basis of a continuing actionable nuisance there was continuing damage. - Khorasandjian v Bush[1993] 3 All ER 669(CA) A mere licensee in her mother's property with no right to possession but could sue. NO LONGER THE CASE 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 Non exclusive licence/ permission to use does not entitle someone to sue in nuisance Khorasandjian overruled.

Southport Corp v Esso Petroleum Chambers Hussain Wu 2014 (Emanation necessary)

- Southport: In order to support an action on the case for a private nuisance, the defendant must have used his own land or some other land in such a way as injuriously to affect the enjoyment of the plaintiff's land. -Chambers: Chambers states that it must be proved not only that the plaintiff's use of his land has been interfered with, but also that the defendant maintained on his land a harmful state of affairs which caused that interference. - Hussain: striking out action. The local authority could not be liable in nuisance for failing to prevent council tenants from committing criminal acts of harassment against a nearby property owner. 'In the present case, the acts complained of unquestionably interfered persistently and intolerably with the plaintiff's enjoyment of the plaintiff's land, but they did not involve the tenants' use of the tenants' land and therefore fell outside the scope of the tort.' - Wu 2014: emanation from d's property necessary

Public nuisance (civil)

- The Attorney General, local authorities or private individuals may bring such an action. Fault is necessary. The action must be unreasonable and foreseeability of the kind of damage is required. -The AG may act personally or by a relator action. A relator action has existed from the earliest times and is one in which the AG, on the relation of individuals (including companies and local authorities) brings an action to assert a public right.

Varnier v Vector Energy Ltd Hawkes Bay Protein Ltd V Davidson (NZ stance on planning permission)

- 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. - Varnier v Vector Energy Ltd Unreported 16 March 2000, CP 82/99, HC Auckland. Wheeler applied. Evid suggested nuisance could be avoided. - 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.

Private nuisance definition

- The essence of the tort of private nuisance is the unreasonable interference with the use and enjoyment of land. - 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. - Provides a remedy for indirect or consequential interference, and proof of actual or imminent harm is required.

Liability of lessors

- The general rule is that the landlord is not liable for the acts of her or his tenant, because it is the tenant who is in possession of 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.

Damages (remedies) overview

- 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.

Thompson v Gibson Sedleigh Denfield Who is liable?

- Thompson v Gibson (1841) 7 M & W 456. ...he that does the first wrong shall answer for all consequential damages.(p 461) - Sedleigh Denfield [1940] Ld Wright...The ground of responsibility is the possession and control of the land from which the nuisance proceeds. - "an activity of the d on his land was the source of the liability (Panckhurst J)

Strict liability for creating a continuing interference w public rights

- True cases of public nuisance, where there is creation of a continuing interference with public rights, and liability is strict. There are two types of cases: (a) Widespread private nuisances A-G v Abraham & Williams Ltd [1949] NZLR 461 b) Unreasonable obstruction of the highway. However, where the public highway is concerned, it has always been accepted that at times, some obstruction may be necessary

Victoria Park v Taylor Thompson-Schwab v Costaki 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.' (p 507.) - Thompson-Schwab v Costaki [1956] 1 WLR 335. The activities ...are not only open, but they are notorious, and as such force themselves upon the sense of sight...The perambulations of the prostitutes and their customers is something which is obvious, ...blatant and...constitute a sensible interference with the comfortable and convenient enjoyment of (neighbouring residences).(p 339).

Defences overview

- must be proved by d - ordinary and reasonable use of land - statutory authority - planning permission - Contributory negligence and consent - "Coming to the nuisance" no defence

Hsu v Weddings Etc (private nuisance example)

- party using property to have weddings - neighbours annoyed by noise from weddings - neighbour would jump on ride on lawn mower every time there was a wedding - injunctions sought - sound limits imposed on d

Types of injunction (prohibitory, mandatory, quia timet, perpetual)

- primary remedy for a nuisance - Prohibitory injunctions (the most common) restrain the doing or continuing of certain acts (the negative form). - Mandatory injunctions order something to be done where there is a wrongful omission (the positive form). - 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. - Perpetual v interlocutory/interim injunctions: Final v temporary relief granted speedily in appropriate circumstances. Because the granting of such injunctions can have significant effects and in some cases can be equivalent to a final order, the courts apply a 'balance of convenience' test. The plaintiff has to show a serious question to be tried and the court then considers whether on a balance of convenience the injunction should be granted. (American Cyanamid v Ethicon Ltd

ss 16 - 17 Resource Management Act

- s 16: Duty to avoid unreasonable noise - s 17: Duty to avoid, remedy, or mitigate adverse effects (1) Every person has a duty to avoid, remedy, or mitigate any adverse effect on the environment arising from an activity carried on by or on behalf of the person, whether or not the activity is carried on in accordance with— (a) any of sections 10, 10A, 10B, and 20A; or (b) a national environmental standard, a rule, a resource consent, or a designation.

Social utility (St Helens, Bloodworth, Greenwood)

- the social value of d's actions will be taken into account - considerations of public welfare lie at the core of the locality principle (St Helens, Bloodworth, Greenwood) - once it has been proved that nuisance is abnormal in area, no answer for d to show that activity confers public good to public which outweighs damage down to p.

Bamford v Turnley Ordinary and reasonable use of land (defence)

- this defence arises from the law's desire to balance the interests of neighbours in the use of their land. The plaintiff clearly should not have unlimited use of her or his land, and particularly in our complex western societies, it is necessary that there be cooperation between citizens to facilitate living together. 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...

Continuing harm injunctions (prohibitory)

- where a substantial intereference w p's use or enjoyment of land is continuing or likely to occur, the p is entitled to an injunction to restrain the behaviour - think of Hardie Boys judgement in Greenwood - an interesting way of dealing with problem (getting ds to provide blind) - will not necessarily require the defendant to cease activity that gave rise to the claim

Allen v Gulf Oil Refining Manchester Corp v Farnworth When is nuisance inevitable in this situation?(statututory authority)

Allen: - if it could not be avoided by the exercise of all reasonable regard and care for the interests of other persons - the onus of proving that it was inevitable lies w those who seek to prove this (Manchester Corp v Farnworth) - must prove it was not due to d's negligence (Allen)

Allen v Gulf Oil Refining Ltd Hunter (stat authority defences)

Allen: statute that authorised construction of rig impliedly authorised operation. This will not apply to actitivities that are not necesary to complete purpose (Hunter)

Wandsworth London Borough Council v Railtrack plc [2002] QB 756,* 761 (Fault based liability for failing to abate continuing nuisance)

Creates a duty to take reasonable steps to abate a public nuisance which you have not created. It applies if you occupy the land or if you adopt or assume control of the source of public nuisance.: Wandsworth London Borough Council v Railtrack plc [2002] QB 756,* 761. Pigeons roosting on defendant's railway bridge fouling pavement below.

Liability in nuisance - creator and continuing

Creator:For cases involving the defendant actually creating a continuing nuisance, there is authority suggesting that liability is strict. It is clear that fault is required, however, and that involves foreseeability in the sense that the defendant must have been aware that her or his action was likely to cause damage to a neighbour. The defence of reasonable use also involves establishing reasonable or careful behaviour. Continuing: For a 'state of affairs' nuisance, where the defendant has adopted or continued an existing nuisance, the tendency is to use negligence language and ask whether the defendant exercised reasonable care to ensure that the state of affairs which was continued or adopted did not cause harm to the neighbour. Thus negligence can be said to feature to some degree as a prerequisite for liability in all cases of nuisance.

Halsey v Esso Petrol [1961] 2 All ER 125. Hamilton v Papakura DC [2000] Hawkes Bay Protein Ltd v Davidson (Damages cases)

Halsey v Esso Petrol: can recover for damages to chattels Hamilton v Papakura DC [2000]: the test for remoteness of damage is the same as in negligence - damage complained of must be a reasonably foreseeable consequence of carrying on the activity Hawkes Bay Protein Ltd v Davidson: If claiming loss of amenity, damages may be reduced by failure to mitigate by promptly seeking injunctive relief.

Hsu Lawrence v Fen Tigers Ltd [2014] 2 WLR 433. * Noise (unreasonableness)

Hsu: ride on mower case Lawrence: Ms Lawrence alleged that the noise from the stadium and track amounted to a nuisance. Fen Tigers submitted that the stadium benefitted from a prescriptive right to cause a noise nuisance as a result of the long use of the land as a race track and stadium.The court held that there could be no right, acquired by prescription, to generate noise which would otherwise be a nuisance to an adjoining occupier. Injunction granted.

Shelfer v City of London Electric Lighting Co Judicature Act s 16A (Damages in lieu of injunction)

Judicature Act s 16A: Power to award damages in lieu of an injunction. Where a court has the power to award a perpetual injunction of any type it may award damages in the alternative for anticipated loss. This means all future loss is covered and the defendant may continue the nuisance. - Shelfer v City of London Electric Lighting Co [1895] 1 Ch. 287, 322. Damages were to be granted in lieu of an injunction where: 1. the injury is small 2. the injury is capable of being estimated in money 3. the injury can be adequately compensated by money 4. it would be oppressive to the defendant to grant an injunction - PUBLIC INTEREST: statutory authority usually displaces private property rights in public interest = so no public benefit could be considered in this situation - however, import of contribution could be taken into consideration (Jerram v Hood etc)

Redland Bricks v Morris (Quia timet injunction)

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.

Hunter v Canary Wharf Ltd Who can sue?

Nuisance protects the right to enjoyment of land. Prima facie, the owner in occupation has that right. Bodies like local authorities and highway authorities are included as land is vested in them for the use of the public. Plaintiff must have a legally protected interest in land affected by the nuisance BUT: - Lessees can sue as the right to enjoyment is vested in them. The terms of the tenancy may be relevant to the remedy granted. Lessors can sue only if they can prove that their right to enjoyment in the future is threatened by some permanent interference. - Licensees can sue where the licence confers possession of the land. Traditionally a spouse with no legal or equitable interest in matrimonial land was denied damages in nuisance, and this has now been confirmed. Similarly, where a person or family resides on land owned by a company there could be doubt because the family occupies under a licence, but a company cannot be said to suffer damage from a nuisance. - Defacto possession is sufficient on the grounds that actual possession is protected against all but the rightful owner. Illegal defacto possession is sufficient.

R v Johnson s 145 Crimes Act R v Mwai R v Andersen Public nuisance cases (criminal)

R v Johnson: The common law offence of public nuisance made up of obscene telephone calls on hundreds of occasions to at least 13 women. - s 145 (1) Every one commits criminal nuisance who does any unlawful act or omits to discharge any legal duty, such act or omission being one which he knew would endanger the lives, safety, or health of the public, or the life, safety, or health of any individual. - R v Mwai [1995] 3 NZLR 149. Hardie Boys J: The section is drawn in wider terms than the common law offence of public or common nuisance which was limited to acts affecting the public generally, or a substantial number of the public... Spreading AIDs deliberately covered by public nuisance - R v Andersen [2005] 1 NZLR 774. Mens rea: S 145 creates an offence of recklessness. Negligence would be inconsistent with a criminal statute

Rickards v Lothian Cambridge Water Co Hazelwood v Webber O'Sullivan Ordinary or natural use cases

Rickards v Lothian [1913] AC 263.(Aust appeal) having a proper and reasonable supply of water was an ordinary and proper use of a home. - Cambridge Water Co v Eastern Counties Leather plc ...It may well be that, now that it is recognised that foreseeability of harm of the relevant type is a prerequisite of liability in damages under the rule, the courts may feel less pressure to extend the concept of natural use to circumstances such as those in the present case; and in due course it may become easier to control this exception, and to ensure that it has a more recognisable base of principle. (p 79) - Hazelwood v Webber (1934) 52 CLR 268.The experience, conceptions and standards of the community enter into the question of what is a natural or special use of land, and of what acts should be considered so fraught with risk to others as not to be reasonably incident to its proper enjoyment. - 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 - time of year, climatic etc

Robinson v Kilvert Hamilton & Anor v Papakura District Council & Anor Bloodworth v Cormack Sensitivity of plaintiff (unreasonableness)

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). (hot air/paper case) Hamilton & Anor v Papakura District Council & Anor [2000] 1 NZLR 265. (aff PC [2002] 3 NZLR 308). 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? Greater needs than general public requires = may have to make own arrangements - Bloodworth v Cormack [1949] NZLR 1058. 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. (speedway case) • 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.

Southport (dissenting view) Clearlite Liappiatt v South Gloucestershire Council Wu 2011 (Emanation - not necessary)

Southport: the matter complained of must affect the property of the plaintiffs. But I know of no principle that it must emanate from land belonging to the defendant....I can see no reason why, if land or water belonging to the public or waste land is misused by the defendant, or if the defendant as a licensee or trespasser misuses someone else's land, he should not be liable for a nuisance - Clearlite: A private nuisance is a civil wrong based on a disturbance by the defendant of rights in land. It seems to me immaterial, in a case of actual damage to the land itself, to base any distinction upon the locality of the act creating the damage. - Liappiatt v South Gloucestershire Council [2000] QB 51 (CA). Striking out. Travellers on council land - used it as a base to frequently trespass on plaintiff's farmland, obstructed access, left excrement, tethered animals, damaged fences etc, acted belligerently. Hussain distinguished. Wu: 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. Held that emanation of nuisance from another property not required. Interference by a third party to individual property will do. Co-owners can sue each other in nuisance because they cannot exclude each other and cannot control each other's behaviour

What constitutes interference?

Tangible - (including buildings), such as subsidence, flooding, fire, vibrations and the like Intangible - 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. -However, not all nuisances are actionable: they must also be substantial and unreasonable.

The interest protected by the tort

The right to the "use and enjoyment of an interest in land, or of some right over or in connection with it" (Read) - Includes enroachments from d's land, such as tree roots (Woodworth) or personal discomfort from smells (Halsey) smoke (Tattley) or noise (McKethey) - damages are not for personal injury, but rather for the diminution in the utility of the land while nuisance was occurring.

Williams v Borland Highway accidents

The third category is isolated accidental events on the highway or navigable waters leading to physical injury to the plaintiff or his or her property. These require proof of ordinary negligence. Compensatory damages no avail in NZ Williams v Borland - negligence required, no benefit in pleading public nuisance (arguably) maybe covered by statute

Tock v St John's Metropolitan Board Christie v Davy [1893] 1 Ch 316 Hollywood Silver Fox Farm v Emmett Reasonableness of use

Tock: Public sewerage and drainage systems are an indispensable part of the infrastructures necessary to support urban life. Actual physical harm so not reasonable (blocked drain) Christie v Davy [1893] 1 Ch 316. Malice will automatically prevent a plea that use is reasonable. ^ Hollywood Fox too

Wagon Mound No 2 Cambridge Water Co v Eastern Counties Leather plc Foreseeability

Wagon: 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).Foreseeability in the sense of foreseeability of the kind of damage is always the test of remoteness in nuisance - Cambridge Water Co: ...if a plaintiff is in ordinary circumstance only able to claim damages in respect of personal injuries where he can prove such foreseeability on the part of the defendant, it is difficult to see why, in common justice, he should be in a stronger position to claim damages for interference with the enjoyment of his land where the defendant was unable to foresee such damage (p 72) ..., following the observations of Lord Reid when delivering the advice of the Privy Council in The Wagon Mound (No 2) ...the recovery of damages in private nuisance depends on foreseeability by the defendant of the relevant type of damage....

Walter v Selfe BNZ v Greenwood French v Auckland CC Nature and extent of harm

Walter: established the general test: 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. - BNZ: 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. French: escape of thistles, council's negligence, nuisance substantial and annoying enough Haddon: church bells, successful claim, not something in area that people should have to put up with - extensive ringing of bells

Wu v Body Corporate 366611[2011] 2 NZLR 837, [2012] NZCA 614 Wu v Body Corporate [2014] Refusal to grant electronic access to a building (p's sensitivity)

Wu 2011: - 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. - Held to be a nuisance Wu 2014: held to be trespass rather than nuisance - due to emanation

Who can sue - action by individual

if the individual can show 'special damage' or 'particular damage' above and beyond that suffered by the general public, a private action may be brought. These fall into three categories: (R v Rimmington)

The person with control over the land

the occupier: the person with the power to carry out the activity which leads to the harm or the duty to prevent harm from a condition existing on the land.

Unreasonableness guidelines

• character of neighbourhood • nature and extent of harm: • plaintiff's sensitivity