private nuisance

private nuisance

1. general principles of private nuisance

   • cause of action where substantial and unreasonable interference with the occupiers use and enjoyment of land; goldman v hargrave
   • interference must be reasonably forseable; cambridge water cov eastern counties leather PLC
   • no necessity to show it was caused negligently
   • strict liability; if interference is substantial, liability will be imposed regardless of the fact that D took reasonable precautions to gaurd against interference; fennel v robson excavations
   • interests protected by nuisance
     • • Material property damage
     • • Noise, dirt, smells, vibrations, smoke and fumes (Halsey v Esso Petroleum Co Ltd
     • • Harassing telephone calls (see Khoransidijian v Bush [
     • • Planes flying overhead (Dennis v Ministry of Defence
     • • Encroaching tree branches (City of Richmond v Scantelbury
     • • Picketing, where it amounts to ‘harassment and besetting’ (Animal Liberation v Gasser [
     • • Golf balls or cricket balls hit onto the property: (see eg Campbelltown Golf Club Ltd v Winton & Anor
     • not protected
       • mere presence of building; hunter v canary wharf
       • intereference with tv or radio reception
       • activites of neighbours eg.naked on own land
       • unsighliness of property

2. material damage

   • damage to property that is more than trivial will be actionable; hasley v esso petrolium co ltd

3. intangible interference with enjoyment

   • balance number of factors
     • locaility, timing, frequency, duration, sensitivity of plaintiff, and motivation for the activity; hasley v esso petroleum
   • character of neighbourhood at time complained of; munro v southern dairies
     • no defence if p came to property; munro

4. title to sue

   • same as locus standi

5. who can be sued

   • if not occupier can still be sued; fennel v robson excavations
     • can also sue occupier if vicariously liable , occupier has authorised the nusance de-jager v payneham and magill lodges hall inc, occupier becomes aware of nuisance and fails to take reasonable steps to remove; defleigh denfield v o'callagham

6. defences

   • consent clarey v woman's college
   • stat authority
     • (a) the statute imposes a duty to engage in a particular activity and the nuisance is an inevitable consequence of that activity. However, this defence will be lost where the nuisance was not inevitable and could have been avoided by the exercise of reasonable care: Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [No 2] [2010] WASC 45 at [122]-[123] per McLure P (Buss JA agreeing at [336]).
     • (b) the statute confers a power to perform an activity and is specific as to the manner and location of that activity, and the nuisance is the inevitable consequence of that activity (see Mendelson p 689).
     • (c) the statute confers a power to perform the activity, and leaves the manner of performance to the defendant, the defendant will be liable where the it could have avoided the nuisance by the proper exercise of the statutory power: Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management

7. remedies

   • abatement of self-help; make sure do not commit another tort; gazzard v hutchenson
   • injunction
   • damages; general for discomfort and inconvienece; dennis v MOD, special for cost of repair, consequential economic loss
     • damage must reasonably forseable
     • exemplary and aggraved; gazzard