Private Nuisance

Strict liability: creating the nuisance

- Can still be liable if acted reasonably, concerned with consequence - Foreseeability of the type of harm Needs to be "of the relevant type" Needs to be something we can reasonably anticipate Closely and directly affected (CAMBRIDGE WATER CO) Cannot be expected to foresee harm to something oversensitive or unusual - hydroponic tomatoes (HAMILTON v PAPAKURA DC) - Still create nuisance if: (NC COLLEGE) 1. Interference caused by someone under D's control (direct) 2. Interference caused by a person authorized to use D's land ** Do not matter about contributing fault - just causation hence SL test

Action by the defendant in determining if unreasonable

- D has no right to do something just because he did so with reasonable care (OUTTRIM v LI) - P must consider rights of D and that he can act reasonably on his property - balancing rights (OUTTRIM) - "He who causes a nuisance cannot avail himself on defense he was merely making reasonable use of his own property" (SALMOND ON LAW OF TORT) - D did not have power to enforce conditional access on P as they did, went beyond control powers, unreasonable (WU v BODY CORP) - If D acts unlawfully this is likely to mean it is unreasonable, but not determinative, ex. Did not follow resource consent agreement regarding the smell (HAWKS BAY PROTEIN). ** Note that if defendant has acted unreasonably fairly likely that interference will be unreasonable too but doesn't presume outcome

Other examples of indirect liability

- French v AKL City: spreading weeds - Delware: encroaching tree roots

Harm to the plaintiff's land

- Harm to the utility of the land - Tree roots damage land (Khyatt) - Offensive odor (Hawkes Bay Protein) - Noise (Hsu v Weddings) - Prostitutes walking by (Thompson) - Reflective window (BNZ v Greenwood) * Categories of nuisance are not closed, just because new case, doesn't mean not actionable, type of harm is open (VICTORIA PARK RACING)

What factors can affect a claim for reasonableness?

- Locality (HAWKES BAY) - Social utility (ST HELENS SMELTING) ex. Live in poor neighborhood, lights are bright for safety, shine into room - Time, duration and degree of interference - Abnormal sensitivity (HAWKES BAY) - Malicious motive (OUTTRIM v LI) - Coming to the nuisance (PORTS OF AKL) - Relevance of planning/resource consent (PORTS OF AKL) - Any other relevant factors

Emanation from another or defendants property

- Needs to general emanate from D's land (HUNTER v CANARY) - Only need lack of exclusive control by P over area from which nuisance emanates (WU v BODY CORP)

What are the ways in which a defendant can be liable?

- Strict liability where D created the nuisance in question - Fault-based liability where D continued the nuisance

How do we define a substantial and unreasonable interference?

- The severity of effects a person can be expected to tolerate, based on the ordinary person in P's position ex. Mowing your lawns on a Sunday morning is annoying but reasonable - Materially interferes with the reasonable comfort and standards expected by a reasonable person (Hawkes Bay Protein Ltd)

What are the elements of nuisance?

1. Interference with P's right to use or enjoy the land 2. Substantial and unreasonable interference 3. D caused the nuisance 4. Reasonable foreseeability of the harm inflicted ** Balancing test between plaintiff's and defendant's interests

Fault-based liability: continuing the nuisance

1. Unauthorized act of third party but D ADOPTS the state of affairs and CONTINUES the state of affairs where he ought to know of it and fails to take reasonable steps to abate it. 2. Nuisance results from natural causes but D fails to abate the hazards (positive act, failed DOC) SEDLEIGH-DENFIELD; GOLDMAN v HARGRAVE

Comparison to trespass

Both concerned with rights over land and interference with the use and enjoyment of the land. Trespass is just being on someones land, nuisance requires actual interference. Neither require actual intention Trespass concerned with the act, nuisance concerned with the outcome Nuisance tends to have a negative consequences such as damage or interference (Matheson) Trespass is direct liability for your actions, nuisance can be used against third parties (Matheson)

Wu v Body Corporate (Reasonableness)

Claimed reasonable to sign new security contract and pay deposit - this activity did not justify the interference - we are concerned with the consequence "Unreasonable interference lies at the heart of nuisance"

Rationale behind the interference needing to be substantial AND unreasonable

Idea that we have to balance the right of the occupier and the right of his neighbor - SEDLEIGH-DEFIELD

Smelting Co v Tipping

Interference causing physical damage unlikely to be reasonable - harder to prove interference with comfort and convenience

Langdon v Bailey

Interference generally needs to be repetitive or continuing, as opposed to a one-off event. - Fire damaged P's land, not nuisance UNLESS It is arising from a dangerous state of affairs (idea that deliberate or foreseeable, not accidental)

What is private nuisance?

It is an unreasonable interference with a persons use and enjoyment of the land - need not be an intentional interference. Typical examples: smells, noise, pollution and other disruptions Wu v Body Corporate: "A wrong against the land" - unduly interfering with use and enjoyment

Matheson v Northcote College Board of Governors

Liability for others on your land = state of affairs + natural and probable consequence RATIO: The school created a "state of affairs" for the trespasses and eventual nuisance to occur, school permitted children to be on land. Natural and probable consequence that unsupervised children will be a nuisance. If you have a group of people on your land = responsible for them. FACTS: - NC college kids - Balls into property, fire crackers, poo - Claimed trespasses = nuisance - Sought injunction - School badly supervised children - Want to hold school accountable for actions of the children, couldn't sue school for trespass as not them OUTCOME: - Liable for nuisance on behalf of the children's multiple trespasses

Who can sue whom?

PLAINTIFF: HUNTER v CANARY WHARF - Needs exclusive possession of land - Need not have title, just interest - About use (utility) of the land - Not personal injury claims DEFENDANT: SEDLEIGH-DENFIELD - Traditionally =Occupation or control of land with issue, nuisance about competing interests of neighbors DEFENDANT: WU v BODY CORP - No particular status needed - Do not need to own - Just management or control - Co-owners can sue one another as long as it interferes with distinct property interest ** Not a traditional framework, this makes the defendant a much broader category than usual!

What forms of nuisance are there?

Private nuisance Statutory nuisance Public nuisance Criminal nuisance s 154 CA danger to public safety, failure of duty

Robinson

Property cannot be abnormally sensitive to harm FACTS: - Landlord using basement to manufacture things - Above flat heated up - Fancy paper he made did not cope OUTCOME: - Nuisance denied - Abnormal sensitivity

Goldman v Hargrave

RATIO: Can be liable for hazards caused by nature, does not matter if person or nature. Occupiers have a duty to abate hazards. To ensure fairness law must take into account that the hazard is entire not the D's fault. therefore to be liable IT MUST BE A POSITIVE DUTY. Liable if positive duty to abate hazards + measured duty of care failed FACTS: - Lightening storm, gum tree on fire - D tries to put out, thinks he has done - Fire brigade chop tree down - Let it burn out, but did not - Damaged P's land - Negligent for not putting water on OUTCOME: - Reasonable person would have taken better care - liable - Positive duty, failed to meet it

Ports of Auckland v Auckland City Council (reasonableness)

RATIO: Claim not barred just because came to nuisance. Resource consent not necessarily a defense. FACTS: - Developer builds non-soundproofed apartments on harbor - Granted resource consent - Port worried noise complaints as operate at 60DCB (high) - Residential areas 35DCB - Council claimed that Port shouldn't claim as it wont affect them OUTCOME: - Council unreasonable to grant RC - Note if want to live on waterfront have to put up with some noise - Able to claim nuisance

Hunter v Canary Wharf

RATIO: Entitled to compensation if unlawful interference with land, but just because it may interfere with the neighbors enjoyment doesn't always prevent your right to use land (ex. build a home on it and blocks a view). Must be an actual emanation and more than mere presence. FACTS: - 235m tower, P's couldn't watch TV - OUTCOME: - No nuisance - Freedom to do something on land - Tower just there, not emanating

Sedleigh-Denfield

RATIO: If something on your land and you adopt the nuisance (ex using it) or ought to have known about it and do not abate the issue then liable for the act of another. You are responsible for things on your land. Knowledge is objective, actual or should've known Liable if adopt + continue nuisance (knowledge + no removal/abatement) ** continue nuisance similar to a negligence test as failing to take reasonable care to abate FACTS: - Local authority - pipe on D's land - Negligently put together - Local authority trespassed, no authority to put on land - Storm = pipe floods neighbors land - OUTCOME: - Liable for nuisance despite not creating the pipe - knew of the pipe for 3 years and did not act, knowledge presumed, adopted nuisance by using the pipe, had servants cleaning it out - Storm not an act of God

Outtrim v Li (malicious motive)

RATIO: Interference need not be physical to satisfy nuisance. Malicious intent can help determine reasonableness. If actions are misleading and inaccurate may influence, FACTS: - Trying to sell house, boundary issue - House did not sell - Neighbor had signs up - blame him - Sold property at loos later on OUTCOME: - Wording on sign not misleading - Wording on sign was accurate - Vendors have duty to disclose boundary disputes (Sharplin) - Not motivated by malice - Interference, but reasonable

Hawkes Bay Protein Ltd v Davidson (unreasonableness)

RATIO: Must be reasonable, "abnormal sensitivity will not avail." Locality can influence what you should tolerate. Injunctions common remedy as stops the continuing nuisance. Damages measure diminution in value of land. Plaintiffs must take reasonable steps to mitigate losses. JUST BECAUSE SOMEONE HASN'T COMPLAINED DOESN'T MEAN HAVE TO TOELRATE FACTS: - Wool storage business (P) - Meat, fish and blood products next to - Odor control system bad - P's property uninhabitable - Trial D to pay damages, appeal OUTCOME: - Locality - industrial area may effect as noises, vibration, odors expected - Failed to contain odors as promised in resource consent - Unduly interfered - system crap - Liable, injunction at earlier stage tho

Wu v Body Corporate - CA (emanation)

RATIO: Something is capable of being a nuisance as long as P doesn't have exclusive control of the land and there is an unreasonable interference. Emanation from another part of land not required, nuisance can be on same part of land - therefore people like co-owners can sue one another. FACTS: - Student apartment building (AKL) - P was a guest, D body corporate - Agent of BC changes locks - Would not give students card until they agreed to new security - P refused, locked out OUTCOME: - Fundamental interference - Not emanation from another land - BC had predominant control - P not having exclusive control OK - No intrusion, not trespass *Goes against traditional need for emanation!!! (2012 CA, not overruled)