THE BOUNDARIES OF REASONABLENESS

Sixty-five years since The Boundaries of Nuisance, in which Professor Newark despairingly
wrote of nuisance as a subject comprising of “a mass of material which proves so intractable
to definition and analysis that it immediately betrays its mongrel origins” and yet the
‘boundaries’, though less of a stranger, remain ill-defined even to this day. Conor Gearty has
attributed much of the present confusion surrounding the tort to the notion of
‘reasonableness’- a product of the nineteenth century. The operation of ‘reasonableness’, he
says, “has played its part in the problems which have bedeviled the tort...”1

Although a nuisance is defined as interference with the right to use and enjoy land, only
unreasonable interferences are actionable.2 It is important to note at the outset the distinction
between the notion of a ‘reasonable-user’, which focuses on the the defendant’s use of land;
and the unreasonableness of the interference, which focuses on the effect of a particular
activity carried out by the defendant on the claimant. Reference to ‘reasonable activity’ must
not also be taken to mean ‘reasonable conduct’ since some activities will be judged
unreasonable no matter how carefully they are carried out.

In order to be actionable as a nuisance, the relevant interference must be judged to be

‘unreasonable’. Hence, the court question put forward by the court is usually this: how would
a reasonable-user have framed for himself the limitations to his own use of land so much so
that the activities undertaken by him will not, to the mind of a reasonable person, amount to
an unreasonable interference with his neighbours? This essay seeks to delineate the
boundaries of reasonableness as applied in private nuisance cases; and in so doing, to
understand the concept of ‘reasonable-user’ that judges so commonly speak of.

Pursuant to art.1(3) of the Civil Law Act 1956, the Malaysian law pretty much mirrors the
common law developments in the entire area of private nuisance.

UNREASONABLE INTERFERENCE

Conor Greaty, ‘The Place of Private Nuisance in a Modern Law of Torts’ (Cambridge Law Journal, 48(2), July
1

1989) p.218
2
Peter Cane, ‘What a nuisance!’ (Law Quarterly Review, 1997)
In Bamford v. Turnley3 the courts were asked to consider whether the trial judge had
misdirected the jury by saying that if they should be of opinion that locality was ‘proper and
convenient’ and ‘under the circumstances a reasonable use by the defendant of his land’, the
defendant was entitled to a verdict, notwithstanding that they were also of opinion that the
activity interfered with the plaintiff’s comfort. It being largely based on the dictum in Hole v.
Barlow4 the stance taken by the trial judge was said to be unprecedented, especially in the
light of Walter v. Selfe5, that nuisance can be actionable only in regards to the defendant’s
conduct (whether it was ‘proper and convenient’ and if ‘under the circumstances a reasonable
use by the defendant of his land’) without having regard to the interference caused by the
activity with the plaintiff’s comfort.

As explained in Street on Torts6, “it is the interference, rather than the defendant’s conduct,
which must be unreasonable.”7 Generally, the more serious the interference, the more likely
the interference will be regarded as unreasonable. Four factors may contribute to the
seriousness of the interference: the duration of harm (the more persistent the interference, the
more likely the courts will deem it to be unreasonable); the degree of harm (the greater the
impact or gravity of harm on the claimant, subjectively speaking, the more likely the courts
will deem it to be unreasonable); the character of the harm (physical injury to property is
generally regarded as being inherently of a more serious kind than interferences with a
claimant’s amenities8); and the social value of the use interfered with (the greater the social
utility associated with the claimant’s use of land, the more likely that the disruptive
interference, such as blockage of light to the claimant’s commercially cultivated fruit trees9,
will be regarded by the courts as serious).

3
(Court of Exchequer Chamber), 1862: 3B & S 66; 31 LJQB 286; 6 LT 721; 9 Jur NS 377; 10 WR 803; 122
ER 27
4
1858 27 L.J.C.P. 208, said in obiter and was itself based on an obscure passage in COMYNS’ DIGEST ‘Action
on the Case’ (letter C): “So an action does not he for a reasonable use of my right, though it be to the annoyance
of another, as if a butcher, brewer, etc, use his trade in a convenient place thought it be to the annoyance of his
neighbour.”
5
(1851) 4 De G. & Sm. 315
6
John Murphy and Christian Witting, ‘Street on Torts’ (Oxford University Press, 2012) at p.449
7
This does not mean, however, that the nature of the defendant’s conduct is irrelevant, since the
unreasonableness of the defendant’s user will impact upon the court’s characterisation of the nature of the
interference. It is perhaps to this effect that Pollock CB (dissenting) was of the opinion that the jury could not
have omitted the extent of interference with the plaintiff’s comfort from within their contemplation in deciding
whether or not the burning of bricks was “under the circumstances a reasonable use of the defendant’s land”,
that is, “that the defendant should do it, and reasonable that the plaintiff should submit to it.”
8
St Helen’s Smelting Co v. Tipping (1865) 11 HL Cas 642
9
Smith v Giddy [1904] 2 KB 448
 THE REASONABLE-USER

An Objective Test

What constitutes a ‘reasonable-user’? The standard is by no means absolute10. In Walter v.

Selfe11 the learned judge stated that the question should be considered “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”. The court will neither look at the perspective of society
as a whole, nor at the defendant’s neighbour’s or even the defendant’s perspective. For
example, in Dennis v. Ministry of Defence12 it was found that the noise caused by the circuit
flying of Harrier jump-jets from RAF Wittering amounted to a private nuisance even though
the training of RAF pilots was thought to be a reasonable use of land from the perspective of
society as a whole; and in Barr & ors v Biffa Waste Services Ltd 13, the Court Of Appeal
gave acquiescence to Weir’s observations that “reasonableness is a relevant consideration…
but the question is neither what is reasonable in the eyes of the defendant or even the
claimant (for one cannot by being unduly sensitive constrain one’s neighbour’s freedoms),
but what objectively a normal person would find it reasonable to have to put up with.”14

‘Reasonable-Use’ distinguished from ‘Reasonable Care’ and ‘Non-Natural Use’

Negligence is a failure to exercise the care toward others that a reasonable or prudent person
would use in the same circumstances, or taking action that such a reasonable person would
not15. Unreasonableness in private nuisance, however, does not require carelessness. 16 As
Lord Goff said in Cambridge Water Co Ltd v Eastern Counties Leather plc17: “if the user is
reasonable, the defendant will not be liable for the consequent harm to his neighbour’s
enjoyment of his land; but if the user is not reasonable, the defendant will be liable, even
though he may have exercised reasonable care and skill to avoid it.”

10
See Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683, 681-91 where Veale J observed that, in spite of the
numerous authorities to which he had been referred, the law was not in dispute; that "no absolute standard"
could be applied it being a question of degree whether the interference was sufficiently serious to amount to a
nuisance
11
(1851) 4 De G. & Sm. 315
12
[2003] EWHC 793
13
[2012] EWCA Civ 312
14
Tony Weir, ‘An Introduction to Tort Law’ (Clarendon Law Series, 2nd edn, Oxford University Press, 2006)
p.160
15
Definition taken from Nolo’s Plain-English Law Dictionary
16
Nicholas J. McBride and Roderick Bagshaw, ‘Tort Law’ (4th edn, Pearson, 2012) at p.427
17
[1993] ABC.L.R. 12/09
In Cambridge Water Lord Goff also drew attention to the “similarity of function” between
the concept of natural user or ordinary user in Rylands v Fletcher18 and the concept of
reasonable user as applied in the tort of nuisance.19 Gerry Cross20 was critical of such a view
and his argument, that the two are inherently different, was picked up by Maria Lee21:

“Unlike natural use, reasonable user has not been a general prerequisite of liability,
but a particular way of determining whether the interference suffered by the claimant
is sufficiently serious to give rise to an action. It seems to be impossible to separate
the unreasonableness of the interference with the claimant, from the reasonableness of
the defendant’s activity. All of the factors of the case are generally thought to be
necessary to determine whether a user is reasonable in any particular case, leading to
a highly fact specific, contextual decision-making process, which the courts
determining the appropriate standards of amenity in particular cases. On the other
hand, non-natural use has generally not required a balancing of interests, but looks
simply at what the defendant is doing, to assess whether the rule in Rylands v
Fletcher should apply.”

A BALANCING EXERCISE: THE RULE OF ‘GIVE AND TAKE’

In Bamford v Turnley22, Bramwell B famously delivered the rule of give and take:

"There must be, then, some principle on which such cases must be excepted. It seems
to me that that principle may be deduced from the character of these cases, and is this,
viz: that 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... ;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."

18
John Rylands and Jehu Horrocks v Thomas Fletcher [1868] UKHL 1, (1868) LR 3 HL 330
19
Albeit the extensive reference to the concept of ‘non-natural use’ in both the trial court and the House of
Lords, the Lords did not go so far as to call them identical and refrained from laying down a definition of non-
natural use; See Maria Lee, ‘What is Private Nuisance?’ (Law Quarterly Review, 2003) at p.312
20
G. Cross, ‘Does Only The Careless Polluter Pay?’ (1995) 111 L.Q.R. p.448.
21
Maria Lee, ‘What is Private Nuisance?’ (Law Quarterly Review, 2003) at p.313
22
(1860) 3 B. & S. 62, at pp. 83-84
Bramwell B drew a distinction between amenity nuisance cases where the inconvenience
arose from the ‘common and ordinary’ use of land and those cases in which the activity
called into consideration is of an ‘exceptional’ nature- such that the defendant’s activities go
beyond the ‘common and ordinary’ use of land, even if they are not in any sense ‘unnatural or
unusual’. While the former calls for an application of the rule of reciprocity, in the latter case,
the onus is on the defendant to satisfy the court that the activity complained of was not
actionable in nuisance. In so doing, the court, in general, will not find for the defendant
merely because he asserts that his conduct was to the benefit of the community. The
argument would be admitted only if the net utility (social benefit), having compensated those
individuals whose rights have been interfered with, is greater after the activity is undertaken
than it was before. Despite its unavailability as an absolute defence, public benefit may be
taken into consideration by the courts in determining the reasonableness of the defendant’s
use of land.23

In London Borough of Southwark v Mills24 Lord Millett suggested that Bramwell B could
not have intended the defence to be confined to nuisances that are of a comparatively trifling
character. So long as the acts complained of were ‘necessary for the common and ordinary
use and occupation of land and houses’ and ‘conveniently done’, no action will lie for that
substantial interference with the use and enjoyment of his neighbour's land that would
otherwise have been an actionable nuisance. A similar point was made by Lord Goff in
Hunter v Canary Wharf, that a simple erection of a building cannot constitute an
unreasonable use of land however extreme the interference suffered by the claimant.25

‘TAKING INTO ACCOUNT RELEVANT CIRCUMSTANCES’

I. The Character of the Neighbourhood

23
See para II on ‘Public Benefit’, below
24
Baxter v LB Camden [1999] 3 WLR 939 House of Lords
25
[1997] A.C. 655, at p.685: “...as a general rule, a man's right to build on his land is not restricted by the fact
that the presence of the building may of itself interfere with his neighbour's enjoyment of his land. The building
may spoil his neighbour's view (see Attorney-General v. Doughty (1752) 2 Ves. Sen. 453, and Fishmongers' Co.
v. East India Co. (1752) 1 Dick 163); in the absence of an easement, it may restrict the flow of air onto his
neighbour's land (Bland v. Mosely (1587) cited in Aldred's Case (1610) 9 Co.Rep. 57b, 58a, and Chastey v.
Ackland [1895] 2 Ch. 389); and, again in the absence of an easement, it may take away light from his
neighbour's windows (Dalton v. Angus (1881) 6 App.Cas. 740, 794-795 per Lord Selborne L.C., 823, per Lord
Blackburn): nevertheless his neighbour generally cannot complain of the presence of the building, though this
may seriously detract from the enjoyment of his land.”
In St Helen’s Smelting Co v. Tipping26 the locality factor was a major point of discussion; in
particular, whether the jury’s presupposition that there was no liability if the defendant’s
activity was carried on in a ‘convenient’ or ‘suitable’ place was correct in law. Responding in
the affirmative, Lord Westbury drew a distinction between an action brought for a nuisance
upon the ground that the alleged nuisance produces ‘material injury to the property’; and an
action brought for a nuisance on the ground that the thing alleged to be a nuisance is
productive of ‘sensible personal discomfort’.

In regards to the latter, “anything that discomposes or injuriously affects the senses or the
nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend
greatly on the circumstance where the thing complained of actually occurs”. A landowner
must, therefore, necessarily “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, and also for the enjoyment of property, and for the benefit of the inhabitants of
the town and public at large.”

It has been suggested that the decision in St Helen’s case places the dividing line governing
the boundaries of a reasonable-user in a different position from that proposed by Bramwell B
in Bamford v Turnley.27 Whereas in the latter case, the formulated rule of ‘give and take’
was intended to be confined to and only to cases of ‘common and ordinary’ use of land, here,
Lord Westbury appears to have meant that all cases falling short of ‘material injury to
property’ are subject to the locality rule, notwithstanding the nature of the cases going quite
beyond what was common and ordinary.

In addition, it is important to note that what might be nuisance in one area is by no means
necessarily so in another.28 Similar sentiments were expressed by Thesiger LJ in Sturges v
Bridgeman29, in considering the genteel serenity of Belgrave Square and the noise and smells
of the tanneries of 19th century Bermondsey, that “what would be nuisance in Belgrave
Square would not necessarily be so in Bermondsey”.

Nonetheless, these ‘circumstances’ are only relevant to the extent that the alleged nuisance is
not productive of personal inconvenience or interference with one's enjoyment, quiet and
personal freedom. Where the plaintiff is a victim of physical injury to property, the ‘complex

26
(1865) 11 HL Cas 642
27
Jenny Steel, ‘Tort Law Text, Cases and Materials’ (Oxford University Press, 2007) at p.609
28
Halsey v. Esso Petroleum Co. Ltd. [1961] 1 W.L.R. 683, per Veale J
29
(1879) 11 Ch D 852 at 865
balancing exercise’ traditionally associated with private nuisance will fall into abeyance. In
the instant case, the learned judge held that, “the word ‘suitable’ unquestionably cannot carry
with it this consequence, that a trade may be carried on in a particular locality, the
consequences of which trade may be injury and destruction to the neighbouring property.”
Maria Lee argues that the label ‘unreasonableness’ is both “unnecessary and misleading” in
situations where a court is considering whether an interference which has caused physical
damage to land is actionable because all that the court is really considering is whether strict
liability should apply to a particular activity.

Further, it must be noted that conduct amounting to a nuisance in Belgravia might well also
do so in Bermondsey today because the character of a locality changes over time.30 The
implementation of planning permission, for instance, may so alter the nature and character of
the locality as to shift the standard of reasonable user which governs the actionability of a
nuisance claim.31 However in Barr & ors v Biffa Waste Services Ltd 32, the Court Of Appeal
held that the ‘reasonable-user’ test should not be reinterpreted to ‘march in step’ with
environmental regulation and, as such, the existence of an environmental permit was not in
itself enough to defeat a common law claim in nuisance.

II. Public Benefit

The English courts, being traditionally slow to extinguish private rights in public interest
claims, have generally ignored the utilitarian argument that where the defendant’s conduct is
for public benefit it cannot amount to nuisance- the rattle of early morning milk deliveries is
one instance of such a case33. David Campbell has been particularly cynical about the courts
claiming competence to determine the socially optimal extent of the ‘contingent’ right to non-
interference, ac approach which he disapproves of and which he calls ceteris paribus
reasoning34. He submits that the rule of ‘give and take’ is by definition, contingent, and that
“such a right is recognised only to the extent that the court thinks it is a good right because it

30
Mark Lunney and Ken Oliphant, ‘Tort Law Text and Materials’ (4th edn, Oxford University Press, 2010) at
pp. 648-9
31
Watson v Croft-Promo-Sport Ltd [2009] EWCA Civ 15 at p.32, per Sir Andrew Morritt C
32
[2012] EWCA Civ 312
33
Winfield & Jolowicz on Tort, 18th edn, W.V.H. Rogers (Sweet v Maxwell, 2010) at 14-8
34
“In nuisance cases it has long been the case that rather than enforcing private rights, the courts have moulded
those rights to accommodate welfare assessments which the courts have felt capable of making with either a
naiveté or an arrogance which simply takes one’s breath away.” Per David Campbell, ‘Of Coase and Corn: A
(Sort of) Defence of Private Nuisance’, The Modern Law Review, Vol.63, No. 2 (Mar., 2000), pp.197-215
produced outcomes which are thought good.” Using Hunter v Canary Wharf35 to illustrate
this point, he argues that although Lord Cooke “sees plainly enough that the Canary Wharf
Tower must, given present technology, interfere with television reception”, he nonetheless
“balances out the ‘competing legitimate “commercial” interests, both of concern to the
public’, and gives greater weight to the interest of Canary Ltd.

III. Sensitivity of Claimant

It is a rule in private nuisance that “a man cannot increase the liabilities of his neighbour by
applying his own property to special uses, whether for business or pleasure.”36 Cotton LJ
explains in Robinson v. Kilvert37: “If a person does what in itself is noxious, or which
interferes with the ordinary use and enjoyment of a neighbour’s property, it is nuisance. But
no case has been cited where the doing something not in itself noxious has been held a
nuisance, unless it interferes with the ordinary enjoyment of life, or the ordinary use of
property for the purposes of residence of business.” It follows from this that the court will
not, generally, entertain a claim where the alleged injury is a result of the claimant’s
especially sensitive activity38 although in cases of physical damage where the claimant’s
sensitivity affects only the extent of damage suffered, the eggshell-skull principle will apply.

Most recently, in Network Rail Infrastructure Ltd v C. J. Morris39, Buxton LJ noted that this
rule was subsumed under the general requirement of reasonableness of the defendant’s use of
land. The issue before the court was whether the claimant was entitled to recover damages in
respect of electromagnetic interference caused by Railtrack’s signalling system to the sound
of electric guitar played by the claimant in his recording studio. The Court of Appeal,
recognising that the use of sensitive equipment is now widespread, applied the ‘broader

35
[1997] A.C. 655, at p.685
36
Eastern and South African Telegraph Company Ltd v. Cape Town Tramways Companies Ltd [1902] AC 381
AR 393
37
(1889) 41 Ch D 88
38
See Heath v Mayor of Brighton (1908) 98 LT 718; and Bridlington Relay v. Yorkshire Electricity Board
[1965] Ch 436 where the court refused to grant an injunction to restrain the defendant’s activity on the basis of
the sensitive nature of the plaintiff’s business.
39
[2004] EWCA Civ 172
notion of reasonableness’ and dismissed the claim on the basis that the interference was not
reasonably foreseeable40.

In Cheong Fatt Tze Mansion Sdn Bhd v Hotel Continental Sdn Bhd41 the court held that the
condition of the mansion being “old and fragile” cannot exonerate the defendant from their
liability in nuisance. The hammer-driven piling system employed by the defendant had
caused nuisance that produced material damage or injury to the plaintiff's property (i.e. the
mansion) and it cannot constitute reasonable user of land. Once the defendan is able to
foresee some damage or injury to the plaintiff, they will have to take the plaintiff talem
qualem, “especially when the vulnerability of the mansion to damage had been expressly
made known to the defendant”.

IV. Malice and Conflicting Rights

Bradford Corporation v. Pickles42 concerned an interference with water percolating under

the defendant’s own land in which the claimant claimed was maliciously done. Lord
Halsbury LC held that, “This is not a case in which the state of mind of the person doing the
act can affect the right to do it. If it was a lawful act, however ill the motive might be, he had
a right to do it. If it was an unlawful act, however good his motive might be, he would have
no right to do it.”43 What then, would be such a case in which “the state of mind of the person
doing the act can affect the right to do it?” So far, the courts have been consistent in holding
that where the interference is in regards to noise, malice will be a decisive factor as to
whether the noise amounts to an unreasonable user or not.44 Winfield v Jolowicz, in an
attempt to reconcile the decisions, has suggested that a distinction be drawn between absolute
and relative rights- the latter type being, for example, the rights to make noise and smell.
Malice will only be relevant in cases of that type.

40
There are certain cases in which where damage is foreseeable, reasonable steps must be taken to abate a
nuisance, failing which, the defendant could be held liable. See: Goldman v. Hargrave [1967] 1 AC 645; Leakey
& Ors v. National Trust [1980] QB 485; and Leong Bee & Co v. Ling Nam Rubber Works [1970] 2 MLJ 45
41
(Hong Hing Thai Enterprise Sdn Bhd, third party) High Court (Pulau Pinang) [2011] 4 MLJ 354, per Chew
Soo Ho JC
42
[1895] AC 187
43
Ibid. at pp.594-5
44
of which see: Christie v Davey [1893] 1 Ch 316; Stephens v Anglian Water Authority [1987] 1 WLR 1381;
Allen v Flood [1898] AC 1; Hollywood Silver Fox Farm v Emmett [1936] 1 All ER 825
In Syarikat Perniagaan Selangor Sdn Bhd V Fahro Rozi Mohdi & Ors45, the court held that
“the appellant's contention that as the registered and legal owner of the land, it can use its
land in any manner it pleases it to use, no matter what the effect on the neighbours may be, is
unsupportable by law or reason or good sense and must be rejected outright.”

CONCLUSION

The central issue surrounding the whole law of private nuisance is the question of
reasonableness of the defendant’s conduct. Since St Helen’s v. Tipping, ‘reasonable user’ is
applicable, as things stand, only to nuisances falling short of ‘material physical damage’.
When deciding where the defendant’s activity amounted to a ‘reasonable user’ of land, the
court will apply the rule of ‘give and take’ by balancing between the competing interests of
both parties. There can be no precise or universal formula because the line between an
annoyance that must be tolerated and an actionable nuisance is not at all clear cut. Ultimately,
it is for the courts to decide where the boundary lies and this is not determined merely by an
abstract consideration of the act itself, but by reference to all the circumstances of the
particular case.46

45
[1981] 2 MLJ 16, per Chang Min Tat FJ, delivering the judgment of the Court
46
Winfield & Jolowicz on Tort, 18th edn, W.V.H. Rogers (Sweet v Maxwell, 2010) at 14-6