TORTS LECTURE 11

1. TORTS LECTURE 11 NUISANCE

2. WHAT IS NUISANCE? • An unreasonable conduct that materially interferes with the ordinary comfort of human existence

3. THE TWO ‘SIDES’ OF NUISANCE NUISANCE PRIVATE PUBLIC NUISANCE

4. PRIVATE NUISANCE • The substantial interference with the plaintiff's use of his/her land by the unreasonable conduct of the defendant • Unlawful interference with P’s interest in land • The tort protects against interferences with the enjoyment of land

5. THE NATURE OF THE TORT • Conduct or something that emanates from D’s land • Noise • Dirt • Fumes • Noxious smell • Vibrations etc • (interference with TV signals)?

6. P Baer Investments Pty Ltd v University of New South Wales [2007] NSWLEC 128; • Applicant claimed respondent's large fig trees damaged sewer pipe situated on applicant's property. Applicant sought payment by respondent to fully meet cost of replacing sewer pipes. • Issue: • Whether respondent's trees damaged applicant's sewer pipes. • Whether cost of replacing pipes should be apportioned • Held: • Respondent's trees damaged applicant's sewer pipes because evidence of arborist showed fig tree roots in pipes and respondent's fig trees only species in vicinity. • Cost of replacing pipes should be apportioned because of possible forseeability of damage being occasioned by tree roots at time applicant's property constructed.

7. O'Neill v Frost [2007] NSWLEC 400; BC200705292 • Application to prevent damage to property from tree on adjoining land. Trees located on respondent's neighbouring property. One tree fell across applicant's garage. Second tree previously dropped branches from high winds. • Issue: • Whether removal of fallen tree should be ordered. • Whether tree with structural concerns should be removed. • Held: Application granted in part. • Removal of tree should be ordered because likely to damage applicant's property in near future and no resistance from respondent. • Tree with structural concerns should not be removed because insufficiently serious but warranted further investigation.

8. Vella v Owners of Strata Plan 8670 [2007] NSWLEC 365; BC200704853 • Application for removal of trees and compensation for property damage. Trees mature and unlikely to increase in size. Trees created minor pavement cracks. Cracks did not inhibit pedestrian or vehicle access. Trees damaged both driveways. • Applicant applied for removal of trees six years after aware of damage. • Issue: • Whether trees warranted removal because damaged pavement. • Whether damage should be apportioned because applicant aware of damage. • Held: Application granted in part. • Removal of trees unwarranted by pavement damage because further damage unlikely given maturity of trees. • Driveway damage apportioned because aware of damage for some time before applications brought.

9. Hunt v Bedford — [2007] NSWLEC 130; BC200701745 • Application for pruning of tree. Subject tree on respondent's property. • Applicant claimed tree diseased and posed risk of damage to property and injury to persons. • Applicant sought pruning of respondent's tree at respondent's expense. • Whether risk of damage reasonably likely. • Held: Application dismissed. • Risk of damage not reasonably likely because evidence of arborist concluded no immediate risk of significant limb drop from tree.

10. Owners Strata Plan 4085 v Mallone — (2006) 12 BPR 23,691; [2006] NSWSC 1381; • Application for order defendant liable to contribute to abatement of nuisance involving rocks falling from land of defendant onto land of plaintiff. Dislodgment of rocks occurred through careless quarrying by former land owner. Plaintiff argued rocks and associated debris would continue to fall and posed risk to life and property. • Issue: • Whether defendant had obligation to co-operate with plaintiff. • Whether defendant liable to pay for all remedial work. • Held: Application granted. • Defendant bound to use best endeavours to co-operate with plaintiff to find reasonable solution to problem. • Defendant liable to contribute to cost of work but not to pay for all as no active wrongdoing by defendant and work solely to benefit plaintiff

11. INTERESTS PROTECTED • The tort centers on interest in the land that is affected • D’s conduct must impact on P’s land as a form of interference to the enjoyment of the land in question • Victoria Park Racing v Taylor (D constructs a platform on his land to view and comment on races taking place on P’s land) • Thomson v-Schwab v Costaki (prostitutes in the neighbourhood found to e offensive) • Young v Wheeler • Raciti v Hughes (1995) (flood lights and camera equipment overlooking P’s backyard)

12. The Balancing of Interests • “Sic utere tuo ut alienum non laedas” (“Use your own thing so as not to harm that of another”)

13. Gray v State of New South Wales Matter No 2391/96 (31 July 1997) • The law in this sort of case is tolerably clear. The law of nuisance, the tort upon which the plaintiffs sue, is not to protect people, but to protect property values. That is so because it is an ancient remedy that has come down through the ages. Thus the mere fact that one is disturbed by noise or one gets irritated by prying children or one's privacy is invaded is not sufficient to make out the tort of nuisance…. The plaintiffs are, however, entitled not to have the value of their property diminished by the noisy activities of the defendants (Young J)

14. "A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society." (per Lord Wright in Sedleigh-Denfield v. O'Callaghan (1940) AC, at p 903 )

15. A THREE STAGE APPROACH TO NUISANCE • Identification of the factual substantial interference with the plaintiff's use of his land • A finding that the defendant's activity was unreasonable. • “balancing of the equities” to determine whether the defendant should be stopped from the activities or whether the plaintiff will have to content himself with money damages.

16. NUISANCE AND THE PROTECTION OF PRIVACY • Victoria Park does not stand in the path of the development of such a cause of action [in privacy] (per Gummow, HayneJJ with Gaudron in agreement in ABC v Lenah Games Meats Pty Ltd (2001) 185 ALR 1)

17. TITLE TO SUE • P must have proprietary interest in the affected land to be able to sue • Oldham v Lawson • Khorasandjian v. Bush [1993] Q.B. 727, • Hunter v Canary Wharf • Blay, ‘The House of Lords and the Lord of the House: Making New sense of Nuisance’ ALJ ( 1999) Vol. 73, 275

18. THE NATURE OF D’S CONDUCT • D’s conduct must be unreasonable. • In general act/conduct which is reasonably necessary for the normal user of land would not be considered unreasonable • Munro v Southern Dairies ( smells from D’s property where he keeps 5-7 horses with associated smells, noise and flies held to constitute a nuisance)

19. ABNOMAL PLANTIFFS • Where D’s conduct is neither unreasonable nor excessive P cannot claim • Robinson v Kilvert (27 degree heat generated as a result of D’s work in lower floor causing damage to P’s sensitive paper) • But where D’s conduct even though slight, but is malicious, P can claim • Hollywood Silver Fox Farm Ltd v Emmett (gunshots to frighten P’s vixen and to discourage P from setting up- farm. Pretext that the shooting was to keep rabbits off the property was not accepted)

20. WHO MAY BE SUED? • The creators of the nuisance • Fennell v Robson Excavations (1977) • In general, the person who creates the nuisance by some act of misfeasance as opposed to mere nonfeasance is always liable for it, whether or not he is in occupation of the land on which it originates (The Owners - Strata Plan No 13218 v Woollahra Municipal Council [2002] NSWCA 92 (8 April 2002))( • Occupiers • De Jager v Payneham & Magill Lodges (1984) 36 SASR Occupier may be liable for the acts of a party who resides on the property with occupiers permission • the occupier of premises where the nuisance exists is in generally liable although, if the nuisance not be created by the occupier he is not liable unless, with knowledge or means of knowledge on the part of himself or his agent (The Owners - Strata Plan No 13218 v Woollahra Municipal Council [2002] NSWCA 92 (8 April 2002)) • Hargrave v Goldman ( an occupier may be held liable where they allow the continuation of a nuisance from the land even though they may not have created it initially)

21. PUBLIC NUISANCE • Any nuisance that materially affects the reasonable comfort and convenience of a class of people • P may sue in public nuisance only if he/she can establish special damage above and beyond that suffered by other members of the affected public • Walsh v Ervin ( D ploughs up part of highway obstructing access to P to the highway, D held liable)

22. Courtney v Thomson — [2007] QCA 049; BC200700828 • Appellant convicted of public nuisance, possessing knife in public place and obstructing police. Charges arose from appellant displaying signs on footpath along motorway that were offensive to police service and Crime and Misconduct Commission. Appellant briefly pulled away from police officer during arrest on public nuisance charge. Subsequent search revealed appellant in possession of knife. • Magistrate allowed appeal against public nuisance charge but dismissed appeal in respect of other two offences. Magistrate found appellant no lawful excuse to have possession of knife within meaning of (QLD) Weapons Act 1990 s 51(1). Appellant submitted because conviction quashed arrest on public nuisance charge unlawful. Submitted subsequent charges also unlawful because arresting officer failed to particularise grounds for arrest. • Issue:Whether prosecution established police officer obstructed in performance of duty.Whether result of search should have been excluded from evidence as search only justified by prior unlawful arrest. • Held: Appeal allowed in part.Absent evidence of lawful arrest, prosecution failed to establish appellant obstructed police officer in performance of lawful duty.Appellant gave insufficient grounds to warrant exclusion of evidence of possession of knife.

23. QUEUES OBSTRUCTING PUBLIC HIGHWAYS AND ROADS • Silservice Pty Ltd v Supreme Bread Pty Ltd (queues to buy bread on George Street) • Queues do not necessarily provide a basis for an action even where they seem to obstruct a public access way that affects the P • However D may be liable if • the crowd is attracted by something done by D which is not bona fide necessary for the conduct of his/her business • the facility for the purpose of D’s trade is inadequate or not suitable to hold or control the crowd • D could employ some other reasonable means within his control to minimize or prevent the damage to P

24. THE DEGREE OF INTERFERENCE • It is not every interference however slight that constitutes an actionable nuisance; the interference must be substantial and material( York Bros v Commissioner of main Roads: construction of a bridge across a river obstructs navigation by P, held nuisance)

25. PUBLIC BENEFIT AND PUBLIC NUISANCE • In general public benefit is not a defence that can defeat P’s objections to D’s conduct • Where the interference to P is not substantial, the public benefit argument may be used to reinforce the justification to the inconvenience caused to P

26. LUNA PARK CASES • Seidler v Luna Park Reserve Trust (1995) • Luna Park Site Amendment Noise Control Act 2005 • 19A Legal proceedings and other noise abatement action(1) No criminal proceedings, no civil proceedings (whether at law or in equity) and no noise abatement action may be taken against any person with respect to the emission of noise from the Luna Park site.(2) The emission of noise from the Luna Park site does not constitute a public or private nuisance.(3) This section does not apply to or in respect of noise that exceeds the maximum permissible noise level at the closest residential facade

27. Street & 7 ors v Luna Park Sydney Pty Ltd & 1 or [2006] NSWSC 230 (6 April 2006) • D’s claim: the standing of the plaintiffs to injunctive relief depends upon the exposure of their properties to noise emissions, and that on that basis proceedings on the Injunction Claim are “with respect to the emission of noise”. • Ps’claim: Defendants owed the owners and occupiers of the properties neighbouring Luna Park, a duty to take reasonable care to avoid foreseeable risk of economic loss with respect to their properties. • Held: The claim is not a claim with respect to the emission of noise from the Luna Park site, and is not barred by s 19A(1). However, the Negligence Claim is not maintainable by reason of s 19A, and ought to be struck out (Brereton J)

28. REMEDIES • Abatement of nuisance • Who bears the cost of abatement? • Normally the abater does, but see Proprietors-Strata Plan No 14198 v Cowell where it was held that D may be required to bear cost if the steps taken by P to abate were in reasonable mitigation • Injunction to prevent the continuation • Damages

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