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. Our mission for tonight What do we do about the woman across the road who destroyed my 21st?

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

5. Private Nuisance- The Roadmap • Establishment • (a) Unlawful interference with someone’s interest in land • (b) Balance of rights • (c) Intangible interference • Who can sue? • (a) Proprietary interest • (b) Family members? • Who can be sued? • Person who created the nuisance • Others • Defences • Remedies

6. Nuisance in context Nuisance v Negligence Nuisance v Trespass

7. 1(a) Interference with land • The substantial interference with the plaintiff's use of his/her land by the unreasonable conduct of the defendant: Halsey v Esso Petroleum [1961] • Unlawful interference with P’s interest in land • Misfeasance: • St Helens Smelting Co v Tipping (1965) • Bonic v Fieldair (1999) • Nonfeasance: • The tort protects against interferences with the enjoyment of land • Munro v Southern Dairies [1955]

8. 1(a) 1. Establishment- interference “Inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to dainty modes and habits of living, but according to plain and sober and simple notions among the English people.” - Knight Bruce VC in Walter v Selfe (1851)

9. 1(a) P Baer Investments Pty Ltd v University of New South Wales [2007] NSWLEC 128; • Facts • Issues • Whether respondent's trees damaged applicant's sewer pipes. • Whether cost of replacing pipes should be apportioned • Held:

10. 1(a) O'Neill v Frost [2007] NSWLEC 400; BC200705292 • Facts • Issue: • Whether removal of fallen tree should be ordered. • Whether tree with structural concerns should be removed. • Held: Application granted in part.

11. 1(a) Vella v Owners of Strata Plan 8670 [2007] NSWLEC 365; BC200704853 • Facts • 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.

12. 1(a) Hunt v Bedford — [2007] NSWLEC 130; BC200701745 • Facts • Held: Application dismissed.

13. 1(b) The Balancing of Interests “Sic utere tuo ut alienum non laedas” (“Use your own thing so as not to harm that of another”)

14. 1(b) Establishment- balancing “A dweller in towns cannot expect to have as pure air, as free from smoke, smell, and noise as if he lived in the country, and distant from other dwellings, and yet an excess of smoke, smell, and noise may give a cause of action, but in each of such cases it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a right of action.” - Lord Halsbury in Colls v Home & Colonial Stores [1904] - Munro v Southern Dairies [1955], Hasley v Esso Petroleum [1961]

15. 1(b) 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)

16. 1(b) Gray v State of New South Wales Matter No 2391/96 (31 July 1997) "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 )

17. 1(b) How do we balance? • Unreasonable is based on the reasonable person, and what ordinary ‘give and take’ limits are. • Locality: Munro v Southern Dairies • Time, and duration: Wherry v KB Hutcherson Pty Ltd (1987) NSW • Nature of activities: Thompson-Schwab v Costaki (1956), McKenzie v Powley (1916) • Availability of alternatives: Cohen v Perth (2000)

18. Seidler v Luna Park Reserve Trust (1995) NSW Unreported • Facts • Rollercoaster Hours: • Non-School Holidays • Friday: 5.30pm-10pm • Sat: 10am-7pm • Sun: 11am-7pm • School Holidays • Thurs: 10am-8pm • Fri/Sat: 10am-11pm and Sun: 11am-7pm. • Held

19. 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 • Malicious intent • Hollywood Silverfox Farm Ltd v Emmett

20. 2. WHO CAN SUE? • P must have proprietary interest in the affected land to be able to sue “A sulphurous chimney in a residential area is not nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens. It is for this reason that the plaintiff in an action for nuisance must show some title to realty.” - Newark, The Boundaries of Nuisance (1949) • Malone v Laskey [1907]

21. Doesn’t include P’s view of property • Victoria Park Racing & Recreation Grounds v Taylor (1937)

22. Who Can Sue? The Cases • Oldham v Lawson [1976] VR 654 • Khorasandjian v. Bush [1993] Q.B. 727, • Hunter v Canary Wharf

23. “If a P, such as the daughter in Khorsandjian, is harassed by abusive telephone calls, the gravamen of the complaint lies in the harassment which is just as much an abuse, or indeed an invasion of her privacy, whether she is pestered in this way in her mother’s house, or even in her car with a mobile phone. In truth, what the CA appears to have been doing was to exploit the law of private nuisance in order to create by the back door a tort of harassment which was only partially effective in that it was artificially limited to harassment which takes place at her home. I myself do not think this is a satisfactory manner in which to develop the law, especially when the step taken was inconsistent with another decision in the CA in Malone”- LORD GOFF

24. 2(cont) ABNORMAL PLANTIFFS • For sensitive uses of land, interference not unreasonable unless it would have been unreasonable to ordinary use of land. • Robinson v Kilvert (1889)

25. 3. WHO MAY BE SUED? • The creators of the nuisance • Fennel v Robson Excavations Pty Ltd (1977) • Hargrave v Goldman (1963) • De Jager v Payneham & Magill Lodges (1984)

26. Checking In: Private Nuisance • Establishment • (a) Unlawful interference with someone’s interest in land • (b) Balance of rights • (c) Intangible interference • Who can sue? • (a) Proprietary interest • (b) Family members? • Who can be sued? • Person who created the nuisance • Others • Defences • Remedies

27. Your Turn Steve’s own a home at 8 Wombeyan Ct, Wattle Grove. Kit and Carlos live in a house adjoining Steve. Kit and Carlos are really security conscious and have installed floodlights and camera surveillance equipment. The floodlights and surveillance equipment are positioned in a way that they illuminate Steve’s backyard and may record video tape everything that occurs there. Steve uses his backyard to hang up his clothes, doing his gardening, and sitting and enjoying his radio. He has become distressed since the electronic gear has gone in, and he no longer feels he can enjoy his backyard as he did before. The floodlight system is activated by a sensor, which switches the lights on with movement or noise (such as a movement in Steve’s backyard). When the equipment is activated the lights come on and stay on on for 10 mins, and the camera may be activated. Steve contends that he is suffering realth issues as a result of the continued illumination of his land.

28. Public Nuisance: The Roadmap • Establishment • (a) Act/omission which materially affects collective rights of the public • Who can sue? • (a) The state • (b) A plaintiff who suffers ‘special damage’ • Who can be sued? • Person who created the nuisance • Others • Defences • Remedies

29. Public Nuisance v Private Nuisance What’s the difference??

30. 1. INTERFERENCE: QUEUES OBSTRUCTING PUBLIC HIGHWAYS AND ROADS • Silservice Pty Ltd v Supreme Bread Pty Ltd • Harper v GN Haden & Sons (1933)

31. THE DEGREE OF INTERFERENCE • It is not every interference however slight that constitutes an actionable nuisance; the interference must be substantial and materialYork Bros v Commissioner of main Roads

32. 2. Who can sue? • 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

33. Deepcliffe Pty Ltd v City of the Gold Coast “I cannot see that the appellants here can make out a case that they were denied free uninterrupted access to the roadway by the conduct of the respondents in imposing the parking restrictions in question. True, the parking restrictions were in adjajcent streets, but it cannot be said that access to and from the roadway was denied or seriously impaired… As the learned trial judge observed, “The shorter time limit did not materially alter the position.’ The fact that parking was limited to 1hr duration in portions of two streets near the restaurant could not in law constitute an actionable nuisance on he ground that potential customers were prevented from getting to the restaurant (continuing).”

34. It is difficult to see how the conduct in question of the respondents constituted a nuisance… all the available parking space could have been taken by residents and their visitors at any given point of time.” - per Helman J

35. 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

36. Public Nuisance: The Roadmap • Establishment • (a) Act/omission which materially affects collective rights of the public • Who can sue? • (a) The state • (b) A plaintiff who suffers ‘special damage’ • Who can be sued? • Person who created the nuisance • Others • Defences • Remedies

37. 4. Defences • Statutory authority • York Bros v Commissioner for Main Roads (1983) • Consent

38. 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

39. Street & 7 ors v Luna Park Sydney Pty Ltd & 1 or [2006] NSWSC 230 (6 April 2006) • Ps’claim • D’s claim • Held (Brereton J)

40. 5. REMEDIES • Abatement of nuisance • Injunction to prevent the continuation • Damages • Bone v Seale [1975] • Oldham v Lawson (no. 1) [1976] • Challen v McLeod Country Club [2001] • Shelfer v City of London Electric Lighting [1895]

41. WRAP-UP NUISANCE PRIVATE PUBLIC NUISANCE

42. Mission accomplished? Well? What about my 21st?

43. End