Tort of Private Nuisance:

The tort of private nuisance is defined in Hargrave v Goldman (1963) 110 CLR 40,¹ per Windeyer J at 60, as ‘an unlawful interference with a person’s use or enjoyment of land, or of some right over, or in connexion with it’.²

Private nuisance is the interference with the private rights to his or her land, distinct from public nuisance; the interference with those interests that are shared by the public, that is public rights.³ A private nuisance gives rise to a civil cause of action only, in contrast to an action in public nuisance, that is civil and criminal in Queensland.⁴

In Australia, common private nuisances include:⁵

1. flooding,⁶
2. the spread of fire,⁷
3. smoke,⁸
4. the encroachment of tree roots and branches,⁹
5. the spread of dust,¹⁰
6. withdrawal of lateral support of land,¹¹
7. smells,¹²
8. noise,¹³
9. bright lights,¹⁴
10. deliberate surveillance.¹⁵

I. PRIVATE NUISANCE TYPES

There are two distinct types of private nuisance: (1) interference that causes material physical damage, and (2) interference with the enjoyment of land.¹⁶ The House of Lords in St Helen’s Smelting Company v Tipping (1865) 11 ER 1483 distinguished between two categories: interference which cause material injury to property; and interference that cause ‘sensible personal discomfort’.¹⁷

1. Material Physical Damage

Material physical damage in private nuisance refers to tangible harm caused by encroaching elements such as flooding, spreading fire, tree roots, and vibrations.

For instance, in Corbett v Pallas (1995) Aust Torts Reports 81-329, water overflowing from the neighbour’s pool caused material damage to the plaintiff’s property. Similarly, in Sedleigh-Denfield v O’Callaghan [1940] 3 All ER 349, flooding from a blocked pipe that was left unabated for three years. In Davey v Harrow Corporation [1958] 1 QB 60, damage was attributed to encroaching tree roots from the adjoining land (see also Marshall v Berndt [2011] VCC 384).

While private nuisance does not require the plaintiff to suffer actual physical damage, physical damage to the plaintiff’s property of a sufficient degree can constitute a nuisance: Halsey v Esso Petroleum Co Ltd [1960] 1 WLR 683.¹⁸

In Halsey v Esso Petroleum Co Ltd, the plaintiff, who lived opposite the oil depot, claimed that acid smuts emitted from the boilers had stained washing hung up to dry and damaged the paintwork on his car.¹⁹ The Court stated at 691: ‘liability for nuisance by harmful deposits could be established by proving damage by the deposits to the property in question, provided of course that the injury was not merely trivial’.²⁰

In St Helen’s Smelting Co v Tipping,²¹ the House of Lords held a copper smelting factory liable for nuisance caused by the noxious fumes that damaged the plaintiff’s crops and vegetation.²² Here, the ‘character of the neighborhood’ (or the ‘locality principle’) was established (e.g. industrial or residential), distinguishing between two types of nuisances: material damage and sensible personal discomfort; dismissing the locality’s industrial nature as a defence.²³

2. Interference with the Enjoyment of Land

The second type of private nuisance is an ‘interference with the enjoyment of land, or a disturbance of the comfort, health and convenience caused‘, despite no physical damage (e.g. smell, fumes, dirt, dust, smoke, and noise): St Helen’s Smelting Co v Tipping (1865) 11 HLC 642; Miller v Jackson [1977] 3 WLR 20.

In Miller v Jackson [1977] 3 WLR 20 (CA), a cricket club was held liable for nuisance and negligence after Mrs Miller, who lived near the field, claimed that cricket balls landing on her property disrupted her garden enjoyment and caused damage.²⁴ Despite the club’s 70-year history and attempts to raise the fence, the defence of ‘coming to the nuisance’ was rejected by the Court of Appeal, following Sturges v Bridgman (1879) 11 Ch D 852.²⁵ In dissent, Lord Denning MR held that ‘the public interest should prevail over the private interest’ (see also Lester-Travers v City of Frankston [1970] VR 2: on council land, golf balls damaged the house and endangered the occupants of the adjacent property).²⁶

Non-physical interference can be actionable even if it does not impinge on the senses (such as smell, sound), but what the court considers an interference with the ‘enjoyment and use of the land’ (Thompson-Schwab v Costaki [1956] 1 WLR 335).

In Thompson-Schwab v Costaki,²⁷ the frequent visits by prostitutes and clients to a brothel constituted an actionable nuisance by itself due to the ‘morally offensive’ nature of the activity per Lord Evershed, establishing that nuisance extends beyond just a physical inconvenience.²⁸

II. ELEMENTS OF PRIVATE NUISANCE

Generally in Australia, to establish a cause of action in private nuisance, the plaintiff must prove on the balance of probabilities that:²⁹

1. the plaintiff has title to sue;
2. there is an interference with the recognised right attached to land; and
3. damage; the interference was both substantial and unreasonable.³⁰

1. TITLE TO SUE

Does the plaintiff have the right or title to sue in private nuisance?

Lord Goff of Chieveley stated at 688 that ‘[o]nly those with a right to exclusive possession of land can sue in private nuisance. This may be an owner in possession, a tenant, or a licensee with exclusive possession’ (Hunter v Canary Wharf Ltd [1997] AC 655).³¹

For example, freehold owners, tenants for a term in actual possession (e.g. monthly tenants),³² licensees with exclusive possession,³³ and persons taking the benefit of an easement or profit à prendre,³⁴ have title to sue in nuisance.³⁵

In the context of riparian rights and fisheries, in Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343, Lord Wright MR held at 349 that private nuisance consisted of the disturbance of an easement.³⁶ The effluent pollution from the factory amounted to an action in nuisance, and the factory was held liable for the damage to the fisheries.

Freehold owner or licensed tenants:

If the plaintiff is the legal owner and occupier of his/her residence they have the right to sue in private nuisance (Oldham v Lawson (No 1) [1976] VR 654; Malone v Laskey [1907] 2 KB 141).³⁷

In Oldham v Lawson (No 1),³⁸ the plaintiffs, husband and wife, sought damages for noise from an adjoining house. Harris J asserted at 657, that the mere occupation of land is not enough, even if the occupier is a relative of the owner/tenant. As the wife was the sole owner of the house, the husband was not allowed recovery.³⁹ Harris J observed at 657:

… [I]n cases such as the present, where husband and wife reside in the same house, and it is the wife who is the owner, the husband is, legally speaking, only a licensee and cannot sue in nuisance, in the absence of some particular circumstances which alter his status. Circumstances such as the payment of money due by the owner on the house, and the payment of rates, as was suggested was the case here, would, in my opinion, be insufficient to alter that status.⁴⁰

Australian courts are likely to follow the legal reasoning in the authority case of Hunter v Canary Wharf Ltd [1997] AC 655, where the House of Lords held that ‘only claimants with legal property rights can launch actions in private nuisance’ and at 692 ‘to have standing to sue in nuisance the plaintiff must be the freeholder or licensed tenant’.⁴¹ Many claimants in Hunter v Canary Wharf Ltd had no proprietary interest, such as lodgers, spouses, and relations such as the child of the landowner.

Licensee or guests:

It is not enough to be a mere licensee.⁴²

The decision in Hunter v Canary Wharf [1997] AC 655 overturned Khorasandijan v Bush (1993) QB 727,⁴³ which recognised a licensee can bring a claim in private nuisance. Here, the Court expanded the scope of proprietary interest involving a daughter who lived in her parents’ house and received harassing phone calls.⁶

In Malone v Laskey [1907] 2 KB 141, the licensee had no title to sue as the claimant, Mrs Malone, had no proprietary interest in the house, nor did her husband who resided on the property as a ‘mere licensee’. Mrs Malone was present on the property by the license of her husband’s employer who owned the property and had ‘no right of occupation in the proper sense of the term’: at 151.⁴⁴

Occupation:

There is some proposition in recent Australian cases regarding occupation: Lanester Pty Ltd v Arapower Pty Ltd; Deasy Investments Pty Ltd v Monrest Pty Ltd [1995] QCA 466, ‘the mere fact of occupation is sufficient to give a plaintiff standing to sue in private nuisance’ (see also Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51; Stockwell v Victoria [2001] VSC 497).⁴⁵

In Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51, an animal rights group demonstrated outside a circus that camped on council land. On appeal, the Victorian Supreme Court upheld the finding of nuisance and granted injunctions restraining the group, even though they were occupiers.⁴⁶

Landlords out of possession and other persons with reversionary interests may have title to sue in respect of interferences of a permanent character which will or has caused permanent damage to the land.⁴⁷ For example, a fence blocking access to a road: Carter v Kenyon (1863) 2 SCR (NSW) 222.⁴⁸

Who is the proper defendant?

In Oldham v Lawson (No. 1) [1976] VR 654, Harris J stated at 655:

… [T]he plaintiffs must show matters sufficient to establish a nuisance, they must show that they are persons who are competent to bring an action in nuisance, they must show that the defendants are persons who can properly be made liable in nuisance, and they must show that they have suffered damage as a result of any nuisance committed by the defendants.⁴⁹

Creator of the nuisance:

In Peden Pty Ltd v Bortolazzo [2006] QCA 350, the plaintiffs, operators of a hotel, were situated next to an adjacent housing flat owned by the defendant, who leased the property to tenants. The plaintiffs sought damages due to the tenants’ excessive noise from loud music, dog barking, repeated loud drunken behaviour, and smoke from burn-offs.⁵⁰ The Court of Appeal held at [29]:

A lessor is not responsible for a nuisance created by a tenant unless the lessor let the premises for a purpose calculated to cause a nuisance, that is, by express authorisation of the nuisance or which in circumstances where the nuisance was certain to result for the purposes for which the property was being let.⁵¹

In Sedleigh-Denfield v O’Callaghan [1940] AC 880, the House of Lords held the defendant liable for nuisance, even though the defendant was not the creator of the nuisance. The Court affirmed that an occupier is liable if they continue to adopt the nuisance created by a third party. In this case, the defendant had knowledge and failed to remove the nuisance, essentially allowed the nuisance to ‘continue’ thereby ‘adopted’ it.⁵²

Who may be found liable?

Creator, owner, occupier:

While in the majority of cases the creator of the nuisance is the owner or occupier of the nuisance from which the interference emanates from; the creator can be sued, even if they are not the owner, have property rights over the land, or occupier of the land (Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486).

In Fennell v Robson Excavations Pty Ltd, an excavator was held liable even though they had never been in occupation or possession of the property where excavation was performed. The excavator was employed by a developer to remove dirt from the neighbouring property.⁵³ The defendants argued that they were not liable in nuisance as they were not in possession; however, Glass JA’s reasoning at 492–493:

Although there appears to be no direct authority fastening liability on a complete stranger to the occupier of land upon which the nuisance is created, the weight of authority, it seems to me, attaches liability to any person who creates a nuisance while present on land with the authority of its occupier.⁵⁴

In Benning v Wong (1969) 122 CLR 249, Windeyer J stated at 298–299 that ‘[t]he liability of the creator of a nuisance is strict and requires no proof of intention or negligence’.⁵⁵

Continuer or adopter of the nuisance:

Liability for ‘continuing’ or ‘adopting a nuisance depends on fault on the part of the defendant, in the sense of a failure to take reasonable care — however, it may be argued that a defendant who did not create the nuisance, and who neither knew nor ought to have known of it, is not liable for that nuisance: Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258.

In Montana Hotels Pty Ltd v Fasson Pty Ltd, the Privy Council dismissed Montana Hotels’ appeal. Here, the plaintiff claimed structural damage from water seepage was due to a defective drainage system on the leased Fasson building.⁵⁶ The Privy Council considered that ‘ought to have known’ could not mean more than ‘would have known … if the precautions which a reasonable landowner would take’ had been taken by the defendant.⁵⁷

As to what constitutes an adoption or continuation of a nuisance, Viscount Maghaum’s dicta in Sedleigh-Denfield v O’Callaghan (1940) AC 880 at 894:⁵⁸

In my opinion an occupier of land ‘continues’ a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so. He ‘adopts’ it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance. In these sentences I am not attempting exclusive definitions.⁵⁹

In Sedleigh-Denfield v O’Callagan, the appellant’s garden was flooded due to a blocked pipe and grate on the respondent’s property. Despite three years passing before the flooding occurred, the respondents failed to clean the ditch, which their authorised person had neglected.⁶⁰ The House of Lords held the respondents liable, as they knowingly allowed the nuisance to continue unabated, thereby ‘adopting the nuisance’.⁶¹

2. INTERFERENCE WITH A LEGALLY RECOGNISED RIGHT

Has the defendant interfered with the plaintiff’s legally recognised property rights?

For this element to be fulfilled, there must be an interference with the plaintiff’s legally recognised right attached to the land (see Munro v Southern Dairies [1955] VLR 332).

Rights capable of protection

Right of access to and from land:

Examples can include access to and from highways or roads. In Jeffrey v Honig [1999] VSC 337, escaped cows blocked the road and caused damage to the plaintiff’s property.

Right of support from adjoining property:

The removal of an adjoining support can amount to an interference. In Pantalone v Alaouie (1989) 18 NSWLR 119, the defendants were held liable for the collapse of a two-story building due to the removal of a lateral supporting wall.

Riparian rights:

Riparian rights are the rights of landowners whose properties have a running body of water, such as water supply, river or stream. In Grant Pastoral Co Pty Ltd v Thorpe’s Ltd (1953) 54 SR (NSW) 129, the defendant’s embankment was considered to have obstructed the natural flow of water, causing damage to the plaintiff’s land.

Right to enjoy and use land with undue interference:

This includes the right to enjoy and use the land from excessive smell, fumes, dust, noise and vibrations: Sturges v Bridgman (1879) 11 Ch D 852. In this case, the defendant, a confectioner, operated a noisy pestle and mortar for over 20 years. The plaintiff, a doctor who moved next door, alleged that the noise and vibration disrupted his professional activities. The defendant’s assertion of a prescriptive easement based on prolonged use was not upheld as a valid defence.

Right to a view:

In Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, a platform overlooking the racecourse, did not amount to a private nuisance.

Intrusive viewing:

In the recent UK case Fearn v Tate Gallery [2023] UKSC 4, the Supreme Court of Appeal held that ‘intrusive viewing’ is capable of being an actionable interference in private nuisance. The plaintiffs from neighbouring flats to the Tate Modern claimed visitors to their high viewing platform could see directly into their flats, causing substantial interference with their use and enjoyment of their property.

Right to airflow:

The common law does not recognise a right to air movement, and diminished air flow is not actionable in nuisance, as established in Chastey v Ackland [1895] 2 Ch 389 at 402:

… [A]part from long enjoyment, or some grant or agreement, no one has a right to prevent his neighbour from building on his own land, although the consequence may be to diminish or alter the flow of air over it on to land adjoining.⁶²

Right of access to sunlight:

In Bury v Pope (1586) 1 Cro Eliz 118, 78 ER 375, the plaintiff sued his neighbour for obstructing the light and air to his windows. The Court held that the plaintiff’s interest in maintaining unobstructed light and air must yield to the neighbour’s right to build on their adjoining property (see, generally Prah v Maretti (1982) 108 Wis 2d 223, 321 NW2d 182).⁶⁴

In Prah v Maretti, the plaintiff relied on solar panels for home temperature regulation.⁶⁵ The Court determined that the defendant’s adjacent construction obstructed sunlight, interfering with the solar energy process, and issued an injunction.⁶⁵ This case used private nuisance to protect the landowner’s access to sunlight.

Deliberate surveillance:

In Raciti v Hughes (1995) 7 BPR 14 837, the surveillance of the plaintiff’s property amounted to nuisance. The defendant installed video equipment and motion-activated lighting, which triggered upon detecting movement or noise. As a result, whenever the plaintiff and her family entered their backyard, the lights activated, and the video equipment presumably recorded their activities.⁶⁷

Television reception:

The interference with television reception does not necessarily constitute an actionable nuisance but may in certain circumstances.⁶⁸ In Hunter and Others v Canary Wharf Ltd [1997] AC 655, the building of the Canary Wharf Tower interfered with the plaintiff’s TV signals by blocking them. Lord Hoffman held at 710–711 that ‘no action lay in private nuisance for interference with television caused by the mere presence of a building’.⁶⁹

Bright lights:

In Raciti v Hughes (1995) 7 BPR 14,⁷⁰ the concentration of bright lights (floodlights) in the plaintiff’s backyard constituted a private nuisance (see, generally Abbott v Arcus (1948) 50 WALR 41; Bank of New Zealand v Greenwood [1984] 1 NZLR 525).

3. DAMAGE; INTERFERENCE BOTH ‘SUBSTANTIAL’ AND ‘UNREASONABLE’

In fulfilling this element, ‘the plaintiffs must show matters sufficient to establish a nuisance, … and they must show that they have suffered damage as a result of any nuisance committed by the defendants’: Harris J at 655, Oldham v Lawson (No 1) [1976] VR 654.⁷¹ Harris J observed at 655 from the decided cases to define an actionable nuisance:

To establish a nuisance, the plaintiffs must show that there has been a substantial degree of interference with their enjoyment of their house… What constitutes such a substantial degree of interference must be decided according to what are reasonable standards for the enjoyment of those premises. What are reasonable standards must be determined by common sense, taking into account relevant factors, including what the Court considers to be the ideas of reasonable people, the general nature of the neighbourhood and the nature of the location at which the alleged nuisance has taken place, and the character, duration and time of occurrence of any noise emitted, and the effect of the noise.⁷¹

I. Interference causing material damage

In assessing the damage, the plaintiff must have suffered material damage, as demonstrated in St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642. Here, it was the killing of trees through the emittance of copper noxious fumes from the smelting company. Ward J held at 167: ‘[a] material and unreasonable interference can include both physical damage to property and non-physical damage’ (see Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248).

Nonfeasance:

Nonfeasance is a failure to perform an act that is required by law.⁷³ The court considers the defendant’s subjective ability to take such steps (Goldman v Hargrave (1966) 115 CLR 458⁷⁴ at 657; see also Leakey v National Trust [1980] QB 485; Stockwell v Victoria [2001] VSC 497).

In Hargrave v Goldman (1966) 115 CLR 458 (HCA); Goldman v Hargrave [1967] 1 AC 645 (PC), lightning struck a gum tree on Goldman’s property, igniting a fire. Weather conditions caused the fire to spread, resulting in extensive damage to neighbouring properties.⁷⁵ The Privy Council upheld the High Court’s decision, holding Goldman liable for the damage caused for failing to take reasonable steps to prevent the fire’s spread, after he became aware of the potential danger.⁷⁶

In Leakey v National Trust [1980] QB 485, the Court held landowners liable for nuisances caused by natural causes such as weathering. The defendant’s instability of land resulted in soil and detritus falling onto the plaintiff’s property. The defendant had knowledge of but failed to take reasonable steps to end the nuisance (see also Stockwell v Victoria [2001] VSC 497).

Misfeasance:

The negligent or otherwise improper performance of a lawful act.⁷⁷ The traditional view, the defendant is strictly liable for results of that misfeasance—it was considered irrelevant the defendant took all reasonable care and skill to prevent the thing complained of from being a nuisance: St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642; Rapier v London Tramways Co [1893] 2 Ch 588, 600.

In Rapier v London Tramways Co, a tramway company, was held liable for the nuisance caused by the smell and noise from their horse stables in a densely populated residential area in London. Despite taking reasonable steps to minimise the smell, statutory powers did not justify the nuisance.⁷⁸

II. Interference with the use and enjoyment of land that is both substantial and reasonable

An interference with the ‘use and enjoyment of land’ that is both ‘substantial and reasonable’ is demonstrated in Munro v Southern Dairies [1955] VLR 332. The plaintiff, a neighbour, sought an injunction against the dairy operation for noise, smell, and flies from their stables. The Supreme Court of Victoria held that the defendant’s activities significantly interfered with the plaintiff’s use and enjoyment of their property. Despite the defendant’s contention of essential and economically necessary operations, the Court granted an injunction to abate the nuisance.

In a ‘discomfort’ case, the relevant standard is that the inconvenience must be ‘more than fanciful, more than one of mere delicacy or fastidiousness’ and something which would materially interfere ‘with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions’: Walter v Selfe (1851) 64 ER 849 at 852 (Vice-Chancellor Knight-Bruce).⁷⁹

Is the interference both substantial and unreasonable?

The damage suffered must be both substantial and unreasonable, per the legal reasoning of Scholl J in Munro v Southern Dairies Ltd [1955] VLR 332. Even the loss of one night’s sleep can amount to a private nuisance (334–335):

[T]here must be a substantial degree of interference with the comfort and convenience of the occupier who complains of a private nuisance, or with some other aspect of the use or enjoyment of his land. The interference must be so substantial as to cause damage to him. Nevertheless, in that case, it was held that the loss of a single night’s sleep caused by the noise of the dairy could amount to a substantial interference.⁷⁹

An interference is likely to be weighed by the courts as both “substantial and unreasonable” under the reasonable person test, considering all relevant factors such as locality, duration; the damage can then be interpreted as “reasonably foreseeable”.

Substantial and Unreasonable Factors:

The court will consider the factors and apply the relevant tests to determine whether the interference is both substantial and unreasonable, such as:

1. nature of activity
2. locality
3. duration
4. abnormal sensitivity of the plaintiff
5. motive
6. community benefit
7. ‘give and take’ principle.

1. Nature of activity Test

The interference must be more than ‘trivial’ or ‘trifling’ as set forth in St Helen’s Smelting Co v Tipping; Halsey v Esso Petroleum Co Ltd. This is a question of fact. Non-physical interference can be actionable even if it does not extend to actual causation to the plaintiff. For example in Laws v Florenplace Ltd [1981] 1 A11 ER 659, the defendant transformed a shop into a sex shop in a residential area next to restaurants, food stores, and a transport terminal. The area was described as having a ‘marked and attractive village atmosphere’. The plaintiff, a resident, sought damages and a permanent injunction. Vinelott J held that:

[N]ot at least a triable issue of nuisance, even disregarding the risk of attracting undesirable. Even if discreetly conducted, the business would offer for sale hard pornography and would be a business deeply repugnant to the reasonable sensibilities of most ordinary men and women.⁸⁰

In Haddon v Lynch [1911] VRL 5 affirmed (1911) VLR 230, on Sundays 8:00 am and other religious days, the church bells prevented the plaintiff from sleeping in due to the bell’s noise and was considered unreasonable. The Court granted an injunction and damages. Beckett J stated:

I think not exceptional, and that a large proportion of the dwellers in Melbourne suburbs would be found in bed and asleep at half-past 7 on a Sunday morning.

Also in McKenzie v Powley [1916] SALR 1, noise (singing) emanating from the Salvation Army meetings on Sunday mornings from 7:00 am amounted to nuisance.

2. Locality Test

Was the locality residential, rural, urban, or industrial at the time of interference?

Whether the nuisance is unreasonable greatly depends on where it occurred at the time the complaint was made, or interference occurred–the ‘locality’. In resolving this, the courts apply the locality test to determine whether a nuisance is unreasonable at the time—specifically, what constitutes ‘reasonable use’ of the defendant’s property greatly depends on the ‘character of the locality‘.

In considering whether any act amounts to a nuisance, regard must be had not only to the thing done, but to the surrounding circumstances—what would be a nuisance in one locality might not be in another: Sturges v Bridgman [1879] 11 Ch D 852. In Sturges v Bridgman, the plaintiff, a doctor, did not ‘come into nuisance’ merely because the neighbour (a confectioner) had been using his tools and property for over twenty years. The Court held that it was no defence:

… [I]t would be unjust if the nuisance maker had been permitted to continue with the nuisance indefinitely and without power of law to interrupt if this was to be considered a right acquired by long usage.

Even in rural environments there is a limit to what neighbours must endure: Domachuck v Feiner (1994) 35 NSWLR 485, 492–493. The defendants argued the smell was not offensive to constitute nuisance and that the plaintiff was ‘unduly sensitive’. However, it was resolved the smell was more than what was expected in a rural or semi-rural environment.

3. Duration (Frequency)

Time, day/night:

The duration and frequency of the interference as well as the extent, the time of day or night of which the interference took place is relevant. For example, in McKenzie v Powerly [1916] SALR 1, singing from the Salvation Army meetings on Sunday mornings from 7:00 am constituted a nuisance.

It may be determined the time was reasonable for the locality of an interference for the type of activity such as industrial, urban, semi-rural, rural, or residential area. However, the time of the occurrence in the morning or late at night can be considered unreasonable according to the standards of reasonable persons: Halsey v Esso Petroleum [1961] 2 All ER 145 (Veale J).

The claimant in Halsey v Esso Petroleum owned a house near the defendant’s oil depot. During the night shift, noise came from the tankers, and an acid smell was emitted by steam boilers. The defendant was held liable for nuisance as it was attributed to the defendant’s ‘mode of operation‘ namely the night shift and the noise, according to Veale J was an:

‘… [I]nconvenience materially interfering with the ordinary comfort of human existence according to the standards of ordinary and reasonable persons in Fulham.⁸²

Frequency (intervals):

In view of the interference in duration, time, frequency and extent with the plaintiff’s use and enjoyment weighed against one another, the court may consider the interference both substantial and unreasonable: Seidler v Luna Park Reserve Trust (Supreme Court of NSW, Hodgson J, 21 September 1995, unreported).

The plaintiff in Seidler v Luna Park Reserve Trust, a resident living near Luna Park (Sydney), claimed noise from the park’s roller-coaster, operated frequently during school holidays and on weekends, constituted an unreasonable interference with his right to enjoy his home (especially weeknights). The Court held that the noise was an unreasonable interference with the plaintiff’s property rights.

The court may find the duration of the interference as substantial and unreasonable in considering the facts of the case and how frequent the interference occurs. In Halsey v Esso Petroleum [1961] 2 All ER 14: ‘[the] longer and more frequent an interference is, the more likely it is that the court will consider it to be unreasonable interference’.

4. Abnormal sensitivity of plaintiff

Is there an abnormal sensitivity of the plaintiff towards the interference?

In considering whether there is an abnormal sensitivity of the plaintiff towards the interference, the courts apply the ‘reasonable persons’ test (determined by the standards of a ‘normal person’). The defence may have a compelling argument that the plaintiff’s hypersensitivity and reaction to the interference is caused by his/her abnormal sensitivity.

In Robinson v Kilvert (1889) 41 Ch D 88, the Court of Appeal dismissed the claim, ruling that the conditions in the factory were not unusual and that the damage was due to the unusual sensitivity of the claimant’s brown paper. A person cannot claim nuisance if their property is unusually sensitive and would not have been damaged under normal circumstances.⁸³

However, in McKinnon Industries Ltd v Walker [1951] 3 DLR 577, the Privy Council held that an interference can be considered a nuisance regardless of the plaintiff’s sensitivity. The Court found that the fumes and smut were a nuisance because they significantly impacted the ordinary use of the claimant’s land with the damage suffered was serious, ongoing, and getting worse.⁸⁴

Did the interference go beyond a triviality?

If the interference did not cause injury in health to the plaintiff, the defendant could still be held liable if the interference is beyond a ‘triviality’. For example, in a ‘smell’ action circumstance in Halsey v Esso Co Ltd [1961] 2 All ER 145, Veale J held the defendant liable, in that:

… [I]njury to health was not required for a nuisance by smell action since “the pungent smell from time to time emitted went far beyond a triviality and was more than would affect a sensitive person”, it was, in view of its frequency, actionable.⁸⁴

5. Motive (Malice)

Nuisance focuses on what is reasonable from the plaintiff’s view of what they have to put up with, in contrast to a negligence action, it does not focus on the defendant’s conduct–specifically, the law does not take into consideration the ‘social utility‘ of the defendant (Munro v Southern Dairies [1955] VLR 332).

Was there a motive on the part of the defendant?

In determining motive, while the social utility of the defendant’s conduct is not considered (affirmed in Munro v Southern Dairies Ltd [1955] VLR 333), the court may consider whether the activity is conducted with maliciousness to cause annoyance or stress to the plaintiff preventing the use and enjoyment of his or her land’.⁸⁶

In Stoakes v Brydes [1958] QWN 5, the sound of the telephone interfered with the comfort and health of persons in the ordinary enjoyment of their premises that extended to sleep⁸⁷ (see also Christie v Davey [1893] 1 Ch 316). Townley J observed that ‘motive may be relevant in determining whether an interference amounted to a nuisance’.⁸⁸

The issue in Christie v Davey, was whether the defendant’s actions constituted a nuisance and whether Christie’s music lessons were a legitimate use of his property. North J granted an injunction, and the Court held that Davey’s actions were a malicious response (motivated by malice and therefore unreasonable) to the noise from Christie’s music lessons and thus constituted a private nuisance.⁸⁹

However, in Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468, malice can be considered a relevant factor where a plaintiff has particular sensitivities. The foxes on the plaintiff’s farm (fur), were susceptible to breeding issues and could be provoked into killing their young.⁹⁰ The defendant, aiming to disrupt the claimant’s business, instructed his son to fire guns on their land near the property.⁹¹ The High Court of Justice found that the defendant’s malicious actions constituted a private nuisance, despite the foxes’ ‘unusual sensitivity’.⁹²

6. Community benefit

Benefit to the community could be considered by the court as a factor ‘in assessing if the use is reasonable’: Miller v Jackson [1977] 3 WLR 20. In applying the ‘reasonable use’ test, given the cricket club’s long history and community benefit, Lord Denning took the proposition that cricket was in the public interest which ‘ought to be balanced against the private interest of the plaintiffs’.⁹³

7. Give and take principle

The common law recognises there must be some ‘give and take, live and let live’ between neighbours, as Lawton LJ asserted in Kennaway v Thompson [1981] QB 88 at 94:

The question is whether the neighbour is using his property reasonably, having regard to the fact he has a neighbour. The neighbour who is complying must remember, too, that the other man can use his property in a reasonable way and there must be a measure of ‘give and take, live and let live’.⁹³

Activities necessary for the common and ordinary use and occupation of land and houses will not generate liability in nuisance (see Bamford v Turnley (1862) 122 ER 25, 33 per Bramwell B).

Causation of Damage:

Did the defendant cause the damage?

In order to successfully sue, the plaintiff must prove damage on the balance of probabilities, with the test for remoteness of damage is ‘foreseeability’ for the tort of nuisance: Overseas Tankship (UK) Ltd v Miller Steamship Co Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617.⁹⁵

Was the damage reasonably foreseeable?

Whether the damage was reasonably foreseeable is a significant principle limiting liability in private nuisance (and in negligence): Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 85.⁹⁶

The case of Melbourne City Council v Thompson [2007] NSWCA 344 involved damages arising from water ingress into the plaintiff’s property.⁹⁷ The water allegedly originated from council-managed land and caused damage over time. The primary issue was whether foreseeability of harm and reasonableness of response are necessary elements for nuisance liability. The Court of Appeal dismissed the appeal and upheld the trial judge’s finding that the council was liable in nuisance. Emmett JA stated at [142] that the ‘liability for the tort of nuisance arises only for losses arising from a failure to address risks that a reasonable person would recognise as needing to be addressed’.⁹⁸

FOOTNOTES:

1. Hargrave v Goldman (1963) 110 CLR 40, 60 [6] (PC) (‘Hargrave‘). The Privy Council upheld the decision of the High Court that an occupier of land was liable for failing to prevent the spread of a fire that originated from the occupier’s land. ↩︎
2. Ibid 60. Moreover, it is not an essential element in liability for a nuisance that it should emanate from land belonging to the defendant, although commonly it does. See Esso Petroleum Co Ltd v Southport Corporation (1953) 2 All ER 1204, 1207; affirmed (1956) AC 218, 60 [7]. ↩︎
3. Carolyn Sappideen et al, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009) 747. ↩︎
4. LexisNexis, Halsbury’s Laws of Australia (online at 10 February 2024) 415 Tort, ‘3 Continuing cause of action’ [415-625]. ↩︎
5. Halsbury’s Laws of Australia (n 4) [415-630]. ↩︎
6. Sedleigh-Denfield v O’Callaghan [1940] AC 880 (House of Lords) (‘Sedleigh-Denfield‘). ↩︎
7. See Hargrave (n 1). ↩︎
8. Southern Properties (WA) Pty Ltd v Executive Director, Dept of Conservation & Land Management (2012) 42 WAR 287, 346 (Pullin JA). ↩︎
9. Morgan v Khyatt [1964] 1 WLR 475 (PC) (Lord Morris of Borth-y-Gest). On appeal from NZ. ↩︎
10. Munro v Southern Dairies Ltd [1955] VLR 332 (Scholl J) (‘Munro‘); Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145 (QB) (Veale J) (‘Halsey‘). ↩︎
11. Pantalone v Alaouie (1989) 18 NSWLR 119 (Giles J). ↩︎
12. Munro (n 10); Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 (Jordan CJ, Davidson and Street JJ). ↩︎
13. Sturges v Bridgman (1879) 11 Ch D 852 (Thesiger, Baggallay, and Brett LLJ) (‘Sturges‘); Haddon v Lynch [1911] VLR 5 (Beckett J), church bells; McKenzie v Powley (1916) SALR 1 (Sir Samuel Way CJ), band playing, clapping, singing, loud ejaculations of ‘amen’ and ‘hallelujah’; Christie v Davey [1893] 1 Ch 316 (Ch) (North J); Spencer v Silva [1942] SASR 213, 219 (Mayo J), circular saw. ↩︎
14. Raciti v Hughes (1995) 7 BPR 14, 83 (Talbot J) (‘Raciti‘). The concentration of bright lights in plaintiff’s backyard; Abbott v Arcus (1948) 50 WALR 41; Bank of New Zealand v Greenwood [1984] 1 NZLR 525. ↩︎
15. Raciti (n 14). In this case, the nuisance was the deliberate snooping on neighbour and recording on video tape; Cf Bathurst City Council v Saban (1985) 2 NSWLR 704 (Young J). No right to privacy from photography. ↩︎
16. Hargrave (n 1). ↩︎
17. St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642 (Lord Westbury) (‘St Helen’s Smelting Co‘), cited in Wolters Kluwer, Australian Torts – Property torts Commentary (online at 10 February 2025) [33-060]. ↩︎
18. Hargrave (n 1) 762. ↩︎
19. Halsey (n 10). ↩︎
20. Ibid 691. ↩︎
21. St Helen’s Smelting Co (n 17). ↩︎
22. Ibid. ↩︎
23. Ibid. ↩︎
24. Miller v Jackson [1977] 3 WLR 20 (Lord Denning MR, Geoffrey Lane and Cumming-Bruce LLJ). ↩︎
25. Ibid; Sturges (n 13). ↩︎
26. Lester-Travers v City of Frankston [1970] VR 2 (Anderson J). ↩︎
27. Thompson-Schwab v Costaki [1956] 1 WLR 335 (Lord Evershed MR). ↩︎
28. Ibid. ↩︎
29. Bilic & Bilic v Nicholls & Ors [2013] QDC 110, [21] (Dearden DCJ). ↩︎
30. Ibid. ↩︎
31. Wolters Kluwer, Australian Torts – Property torts Commentary (online, 12 September 2025) [33–020]. ↩︎
32. Cunard v Antifyre Ltd [1933] 1 KB 551 (KB) (Lord Hanworth MR, Lawrence and Romer LJ). ↩︎
33. Hunter v Canary Wharf Ltd [1997] AC 655 (House of Lords) (Lord Goff of Chieveley). ↩︎
34. Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343, 349 (Lord Wright MR), disturbance of easement. ↩︎
35. LexisNexis, Halsbury’s Laws of Australia (online, 12 March 2024) 415 Tort, ‘3 Title to sue’ [415-640]. ↩︎
36. ↩︎
37. Oldham v Lawson (No 1) [1976] VR 654 (Harris J) (‘Oldham‘); Malone v Laskey [1907] 2 KB 141 (Collins MR) (‘Malone‘). Cistern was dislodged by vibrations from defendant’s electricity generator. ↩︎
38. Ibid. ↩︎
39. Oldham (n 36) 657. ↩︎
40. Ibid. ↩︎
41. Ibid. ↩︎
42. Wolters Kluwer, Australian Torts – Property torts Commentary (online, 10 February 2025) [33-020]. ↩︎
43. Khorasandijan v Bush (1993) QB 727 (Lord Justice Dillon). CA overruled in part. ↩︎
44. Malone (n 36) 151. ↩︎
45. Stockwell v Victoria [2001] VSC 497 (Gillard J). Liability for wild dogs killing plaintiff’s sheep (Crown land). ↩︎
46. Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51 [62] (Crockett, Fullagar and Nathan JJ). ↩︎
47. Carter v Kenyon (1863) 2 SCR (NSW) 222 (Sir Alfred Stephen CJ, Faucett and Milford JJ), cited in Wolters Kluwer, Australian Torts – Property torts Commentary (online, 10 February 2025) [33-020]. ↩︎
48. Ibid. ↩︎
49. Oldham (n 36) 655. ↩︎
50. Peden Pty Ltd v Bortolazzo [2006] QCA 350 (Court of Appeal). ↩︎
51. Ibid [29] (McMurdo P). ↩︎
52. Sedleigh-Denfield (n 6). ↩︎
53. Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 (Samuels, Reynolds and Hutley JJA). ↩︎
54. Ibid 492-493. ↩︎
55. Benning v Wong (1969) 122 CLR 249 (High Court), 298-299, cited in Wolters Kluwer, Australian Torts – Property torts Commentary (online, 10 February 2025) [33-040]. ↩︎
56. Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258 (PC) (Lord Bridge of Harwich). ↩︎
57. Ibid; Wolters Kluwer, Australian Torts – Property torts Commentary (online, 10 February 2025) [33-040]. ↩︎
58. Sedleigh-Denfield (n 6); Wolters Kluwer, Australian Torts – Property torts Commentary (online, 10 February 2025) [33-040]. ↩︎
59. Sedleigh-Denfield (n 6) 894. ↩︎
60. Ibid (n 6). ↩︎
61. Ibid. ↩︎
62. Chastey v Ackland [1895] 2 Ch 389 (CA). ↩︎
63. Bury v Pope (1586) 1 Cro Eliz 118, 78 Eng Rep 375 (Sir Christopher Wray CJ). Established the principle that there is no natural right to light, and cited the maxim cujus est solum ejus est usque ad coelum. ↩︎
64. Ibid. ↩︎
65. Ibid. ↩︎
66. Raciti (n 14); John Gaudin, ‘Raciti v Hugues (NSW)’ (1996) 2 (10) Privacy Law & Policy Reporter 192. ↩︎
67. LexisNexis, Halsbury’s Laws of Australia (online, 12 March 2024) 415 Tort, ‘3 Examples’ [415-630]; Hunter and Others v Canary Wharf Ltd [1997] AC 655, 710-11 per Lord Hoffman. Interference due to large building; Cf Nor-Video Services Ltd v Ontario Hydro (1978) 84 DLR (3d) 221. ↩︎
68. Hunter and Others v Canary Wharf Ltd [1997] AC 655, 710-11. ↩︎
69. Raciti (n 14). The plaintiff alleged that they suffered distress as they were unable to use their backyard normally due to the activation of lights and video recording triggered by movement or noise. ↩︎
70. See Oldham (n 36). ↩︎
71. Ibid 655. ↩︎
72. Oxford Dictionary of Law (Oxford University Press, 10th ed, 2022) ‘nonfeasance’ (def 1). ↩︎
73. Hargrave (n 1) 657; Goldman v Hargrave [1967] 1 AC 645 (PC). ↩︎
74. Ibid. ↩︎
75. Ibid. ↩︎
76. Oxford Dictionary of Law (Oxford University Press, 10th ed, 2022) ‘misfeasance’ (def 1). ↩︎
77. Rapier v London Tramways Co [1893] 2 Ch 588 (Lindley and Bowen LLJ). ↩︎
78. Walter v Selfe (1851) 64 ER 849, 852, cited in Wolters Kluwer, Australian Torts – Property torts Commentary (online, 10 February 2025) [33-060]. ↩︎
79. Munro (n 10) 334-335 (Scholl J). ↩︎
80. Laws v Florenplace Ltd [1981] 1 A11 ER 659 (Ch D) (Vinelott J). ↩︎
81. Halsey (n 10). ↩︎
82. Robinson v Kilvert (1889) 41 Ch D 88 (Ch D) (Cotton, Lindley and Lopes LLJ). ↩︎
83. McKinnon Industries Ltd v Walker [1951] 3 DLR 577 (PC). On appeal from the Court of Appeal for Ontario, Canada. ↩︎
84. See Halsey (n 10). ↩︎
85. See Munro (n 10). ↩︎
86. Stoakes v Brydes [1958] QWN 5 (Phip J). ↩︎
87. Ibid. ↩︎
88. Christie v Davey [1893] 1 Ch 316 (Ch D) (North J). ↩︎
89. Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468 (KB) (Macnaghten J). ↩︎
90. Ibid. ↩︎
91. Ibid. ↩︎
92. Miller v Jackson [1977] 3 WLR 20, 22 (Lord Denning MR, Geoffrey Lane and Cumming-Bruce LLJ). ↩︎
93. Kennaway v Thompson [1981] QB 88, 94 (Lawton and Waller LLJ, Sir David Cairns). ↩︎
94. Overseas Tankship (UK) Ltd v Miller Steamship Co Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617. ↩︎
95. Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 85 (Talbot J). ↩︎
96. Melbourne City Council v Thompson [2007] NSWCA 344 (Court of Appeal). ↩︎
97. Ibid [142] (Emmett J). ↩︎