NUISANCE

Use of ones property in such a way that it causes some discomfort or interference to the owners
of adjacent properly. They are of the types:
i) Public nuisance
ii) Private nuisance

Public Nuisance
Is defined as an act or omission that affects materially the reasonable comfort and convenience
of life of a class of the members of public. It is ordinarily a criminal matter. However a civil suit
can only be filed by the attorney general. A private citizen cannot file such a suit unless he/she
can prove that he has suffered special harm i.e. damage that is beyond that has been suffered by
other member of the public.

Private Nuisance
Happens where a Defendant carries out any activity or state of affairs that causes a substantial
and unreasonable interference of the Plaintiff’s land or his use or enjoyment of the land property
or e.g. Emissions of Noxious fumes, smoke, noise, heat, generation of violent vibrations etc.

For an interference to be deemed to be a nuisance then two factors must be established;

i) Must be shown to be substantial
ii) Must be shown to be unreasonable.

i) Must be shown to be substantial

Whether or not interference is substantial in a question of fact that depends on the circumstances
and therefore an interferences which results in a nuisance in one case may not be so in another
case.
The general rule though is that for an interference to be held to be substantial it must be one
which is capable of affecting the general members of the public in the same way. If the Plaintiff
complains of the interference because he carries on an activity on his land that is unique only to
himself, and which therefore makes him more sensitive to an interference than the other
members of the public, then the interference is not substantial.
Robinson v Kilvert [1889] 41 Ch D 881
‘The defendants operated a factory which made paper boxes. This required the factory to be
continually warm and dry to ensure that the paper boxes were in good condition. The claimant
rented the ground floor and used this area to store special brown paper. The heat from the
defendant’s factory damaged this brown paper, which was unusually sensitive to heat, and the
claimant sued in nuisance.
Issue:

Whether it was a defence to say that the claimants brown paper was unusually sensitive to heat.
Whether or not there was a nuisance because of the damage to the brown paper, when ordinary
paper would not have been damaged by the conditions. Whether the fact that the defendant’s
acts would not have harmed anything other than special brown paper was relevant.

Holding:

The claim was dismissed as there was no nuisance. The conditions in the factory were not
particularly unusual, and the claimant’s operation of the factory in these conditions was not
unlawful. The defendants had acted as reasonable tenants of their property. It had been shown
that the heat from the factory would not have damaged ordinary paper. Instead the defendant’s
brown paper happened to be unusually sensitive to the heat, and it was this which caused the
damage rather than anything that the defendants had done wrong. Accordingly, this could not be
considered a nuisance caused by the defendants. Where one carries on an unusually delicate
trade, they cannot then complain because they are injured by the defendant’s carrying on their
lawful business on their property if this would not have injured anything but an unusually
delicate trade.’

In determining whether interference is substantial the locality of the Plaintiff’s premises is

relevant.
Sturges v Bridgman [1879] 11 Ch D 852
A physician complained about the noise that was generated by a neighbouring confectioner who
was operating a pestle & mortar. The even constituted largely or consulting rooms for medical
specialists. It was held that, under the circumstances the noises amounted to a nuisance because
they were generated in an area that was specially allocated for use by the doctors.

1
https://www.lawteacher.net/cases/robinson-v-kilvert.php
The court stated “Whether anything is a nuisance or not is a question to be determined not
merely by an abstract consideration of the thing itself but in reference to its circumstances.
What would be a nuisance in one locality would not necessarily be so in another.”

Where there is physical damage to property then the locality is not material.
St Helen's Smelting Co v Tipping [1865] 11 HL Cas 642
The Plaintiff owned an estate next to a large copper smelting factory. Vapours from the smelting
of copper damaged the Plaintiff’s trees and shrubs. The Defendant argued that the locality was
devoted to works related to smelting. It was held that because there was damage to property then
the test to locality is not relevant.

‘It was no defence to say that the claimant ‘came to the nuisance’ and the defendant could not be
said to have acquired a right through prescription to continue to discharge noxious fumes.
Whilst smelting and the discharge of these fumes was not in itself unlawful, and in a locality in
which this was to be expected there could be no nuisance. However, in nuisance cases like this,
it is necessary to distinguish between nuisance alleged to have caused loss of amenities and
comfort, and nuisance which is said to have caused physical damage to property. Where there
had been physical damage to the claimant’s property as had occurred in this case the question of
the character of the locality itself was irrelevant, where it may have been relevant if the alleged
nuisance was only in the form of discomfort.’2

ii) Must be shown to be unreasonable

This is also a question of fact that is to be determined on the basis of the case itself. Where the
Defendant is engaged in an unreasonable use of his land, then the interference is likely to be
unreasonable because an interference that is caused by unjustifiable act cannot itself be justified
e.g. where the Defendant’s intention is to injure his neighbour then the malicious intention is
considered to be unreasonable.
Christie v Davies
An injunction was granted against hammering and beating of trays against a wall and other
noises which were maliciously intended to cause discomfort to the occupier of the neighbouring
house, even though, had it been for a legitimate purpose, the discomfort would not have been
sufficiently substantial to be actionable.

Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468

2
ttps://www.lawteacher.net/cases/st-helens-melting-v-tipping.php
The D ordered his son to fire a gun on his own land but as near as possible to the Plaintiff’s land
where the Plaintiff was breeding silver foxes. The intention was to cause the Plaintiff foxes to
refuse to breed or to miscarry. It was held that even though the D was entitled to fire a gun on his
own land, where the motive was to interfere with the Plaintiff’s interest then the shooting became
unreasonable and the Defendant was liable in nuisance.

The Plaintiff must have proprietary interests in the land in question. This means that the Plaintiff
should be able to lawfully claim some rights in the property e.g. as a registered owner or a
licence or lessee. A licence is a permission by the registered owner allowing the Plaintiff to
occupy or access the land for a specific purpose. A lease is an agreement whereby the owner of
the land grants to another person an exclusive night of possession for a specific period of time in
return of payment.

The Defendant will be liable in nuisance, if he is vested with the management and control of the
premises of which the nuisance emanates/originates.
Sedleigh-Denfield v O’Callaghan [1940] AC 880 House of Lords3
The council undertook some work on the defendant’s land at the request of a neighbouring
landowner. They had placed a culvert in a ditch to allow the water to drain away, however, they
had negligently placed a grate in the wrong place which rendered the grate useless and the
culvert became prone to blockages. The defendant’s workers had cleaned the culvert periodically
over a three year period to prevent blockages. However, a heavy rain storm caused a blockage
and the ditch became flooded. The flood spread to neighbouring property owned by the claimant
and caused substantial damage. The claimant brought an action in nuisance for the damage
caused. The defendant argued that he had neither consented to nor had knowledge of the
existence of the culvert.
Held:
The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt or
continue the nuisance.
Lord Maugham:
“My Lords, in the present case I am of opinion that the Respondents both continued and adopted
the nuisance. After the lapse of nearly three years they must be taken to have suffered the
nuisance to continue; for they neglected to take the very simple step of placing a grid in the
proper place which would have removed the danger to their neighbour s land. They adopted the
nuisance for they continued during all that time to use the artificial contrivance of the conduit for
3
http://www.e-lawresources.co.uk/cases/Sedleigh-Denfield-v-O-Callaghan.php
the purpose of getting rid of water from their property without taking the proper means for
rendering it safe.”

Defences
i) Statutory authority
ii) Consent
iii) Volenti non fit injuria

Remedies
Either
i) Damages
ii) Injunction