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 • Unlawful interference with P’s interest in land • The tort protects against interferences with the enjoyment of land

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; • 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.

10. 1(a) 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.

11. 1(a) 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.

12. 1(a) 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.

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]

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 • Duration • Nature of activities: Thompson-Schwab v Costaki (1956) • Availability of alternatives: Cohen v Perth (2000)

18. 1(c)- Intangible interference Distinguishing trespass

19. 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) • Grosse v Purvis [2003] QDC 151 (16 June 2003)

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)

21. Oldham v Lawson • Khorasandjian v. Bush [1993] Q.B. 727, • Hunter v Canary Wharf

22. “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

23. 2(cont) ABNORMAL 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)

24. 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

25. 3. WHO MAY BE SUED? • The creators of the nuisance • 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 • The Owners - Strata Plan No 13218 v Woollahra Municipal Council [2002] NSWCA 92 (8 April 2002) • Hargrave v Goldman

26. 4. Defences • Statutory authority • Plaintiff being abnormally insensitive • Consent

27. 5. REMEDIES • Abatement of nuisance • Injunction to prevent the continuation • Damages

28. 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

29. 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.

30. 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

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

32. 1. INTERFERENCE: 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

33. 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

34. 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 • Deepcliffe Pty Ltd v City of the Gold Coast

35. 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).”

36. 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

37. 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

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: 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 • 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”. . • 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)

40. 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

41. WRAP-UP NUISANCE PRIVATE PUBLIC NUISANCE

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

43. End