Law of Torts- Nuisance

NUISANCE
Under the common law, persons in possession of real
property (either land owners or tenants) are entitled to the
quiet enjoyment of their lands. If a neighbor interferes
with that quiet enjoyment, either by creating smells,
sounds, pollution or any other hazard that extends past the
boundaries of the property, the affected party may make a
claim in nuisance. It is closely concerned with “protection
of the environment’.
Nuisances come in two forms: private and public.
Public Nuisance A public nuisance is an unreasonable
interference with the public's right to property. It includes
conduct that interferes with public health, safety, peace or
convenience. The unreasonableness may be evidenced by
statute or by the nature of the act, including how long and
how bad the effects of the activity may be. In Gillingham
Borough council vs Medway (Chatham) Dock Co Ltd &
Others (1991) Buckley J stated that public nuisance is
primarily concerned with the effect of the act complained
of (as opposed to its inherent lawfulness or unlawfulness)
to the sufficient number of the public. No civil action can
be brought by a private individual for public nuisance.
The reason normally given is that it prevents multiplicity
of actions. The Attorney General may bring an action for
an injunction (‘relator action’). However, where any
person is injured in some way peculiar to himself ie if he
can show that he has suffered some special or particular
loss over and above the ordinary inconvenience or
annoyance suffered by the public at large, then he may
sue in tort
For the distinction between public and private nuisance
see, · Sedleigh-Denfield Vs O’Callaghan [1940] A.C 880
at 905,907,918 · Arima Nantongo & Others vs Hiral
Mohammed [1974] E.A 557; [1975] HCB 21 · Arima
Nantongo & Anor vs Hiral Mohammed [1974] HCB 181 ·
Tindarwesire vs Kabale Town Council [1980] HCB 33 ·
Kitamirike vs Mutagubya [1965] EA 401 · Gillingham
Borough Council vs Medway Dock Co Ltd [1992]3
ALLER 923 And those already cited on your reading list.

Private Nuisance A private nuisance is simply a

violation of one's use of quiet enjoyment of land. It does
not include trespass. Private nuisance traditionally was,
and is still is confined to invasions of the interest in the
use and enjoyment of land, although occasionally an
occupier may recover for incidental injuries sustained by
him in exercise of an interest in land.
Justice Lugayizi in Dr. Bwogi Richard Kanyerezi vs The
management Committee Rubaga Girls School, High
Court Civil appeal No.3 of 1996 quoting Winfield on tort
8th Edition pp 353-367 stated that “a nuisance is private
where it exclusively affects a private person and not a
sizeable number of the community where it occurs. The
learned author of the said book described a nuisance as an
unlawful interference with a person’s use or enjoyment of
land.
Such interference in essence being either a continuous or
recurrent nature and usually stenches and smoke would
qualify under that description. Whether a nuisance is
actionable or not will depend upon a variety of
considerations especially the character of the defendant’s
conduct and the balancing of conflicting interests ( ie the
right of the defendant to enjoy his property as he wishes
as against the right of his neighbuors to enjoy theirs
without interference)”
In Cunard v Antifyre Ltd, 1933] 1 KB 551 Talbot J, at p
557, succinctly defined private nuisances as interferences
by owners or occupiers of property with the use or
enjoyment of neighbouring property.
“Property” here means land, and should be amplified to
include rights over it, or in connection with it. Any
affected property owner has standing to sue for a private
nuisance. If a nuisance is widespread enough, but yet has
a public purpose, it is often treated at law as a public
nuisance. Owners of interests in real property (whether
owners, lessors, or holders of an easement or other
interest) have standing only to bring private nuisance
suits.
Elements of private nuisance i. The plaintiff must possess
proprietary interest ii. The act complained of should be
unlawful iii. There must be an overt act (act causing the
nuisance) iv. The plaintiff must also prove that nuisance
emanated from the defendant’s property v. The
interference must be both substantial and unreasonable
In Watt vs Jamieson (1954) Lord President Cooper stated
that “if any person so uses his property as to occasion
serious disturbance or substantial inconvenience to his
neighbor’s property, it is in general case irrelevant as a
defence to plead merely that he was making a normal and
familiar use of his own property.
The balance in all such cases has to be held between the
freedom of a proprietor to use his property as he pleases
and the duty on a proprietor not to inflict material loss or
inconvenience on adjoining proprietors or adjoining
property That private nuisance is an invention of the
plaintiff’s interest or right in possession and enjoyment of
land. Scot L.J in Read vs Lyons & Co. Ltd [1945]K.B 216
at p.236 defined private nuisance as unlawful interference
with a person’s use or enjoyment of land or some right
over, or in connection with it.
The essence of nuisance is a state of affairs that is either
continuous or recurrent, a condition or activity which
unduly interferes with the use or enjoyment of land See
also; · Lord Goddard C.J’s judgment in Howard vs
Walker 1947] 2 ALLER 197 at 199 Thus the plaintiff
must have possessory/ proprietary interest in order to sue
in nuisance.
Nuisance is thus complementary to trespass which
protects his related interest in exclusive possession. The
distinction is that trespass applies only to physical
intrusions by tangible objects or things whereas nuisance
extends also to invasions by noise, smell, vibrations and
even high frequency interference with television screens.
See, John Fleming; Law of Torts, 6th Ed. 1983, pg 384-
386
Reasonableness
Reasonableness of the defendant’s conduct “according to
the ordinary usage of mankind living in … a particular
society”, per Lord Wright in Sedleigh-Denfield Vs
O’Callaghan [1940] A.C 880 at 903.
Reasonableness signifies what is legally right between
the parties taking into account of all circumstances of the
case. After balancing the competing interests of the
parties, the court considers whether the interference was
excessive by any standards. The fact that the defendant
took all reasonable care and reduced it to a minimum
provides no defence.
Lord Wright further stated that, 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 ·
See also ;Rapier vs London Tramways Co. [1893] 2 Ch.
588 It is not every noise, smell or dust that irritates your
neighbor that will constitute nuisance. Bramell B. in
Bamford vs Turney (1862) 3 B.& S 66, he stated that
nuisance is premised on the protection of such interests
with an attempt to balance the competing interests or
rights of neighbors a rule of ‘give and take’. That liability
is imposed only in those cases where harm or risk to one
is greater than he ought to be required to bear under the
circumstances
However, in determining whether the defendant’s action
is unreasonable certain considerations have to be borne in
mind; a) The extent of the harm and the nature of the
locality. In the case of St. Helen’s Smelting Co. vs
Tipping (1865)11 H.LC 642. Weir, Casebook, 4th Ed. P.
344, Lord Westbury L.C stated that, “if a man lives in a
town, it is necessary that he should subject himself to the
consequences of those operations of trade which may be
carried on in his immediate locality, which are necessary
for trade and commerce, and also for enjoyment of
property, and for the benefit of the inhabitants of the town
and of the public at large” Therefore, interference which
may be permissible in one area may not be permissible in
another. See, Andrea vs Selfridge & co [1938] Ch.1
As such, most jurisdictions now have a system of land
use planning (e.g. zoning) that describes what activities
are acceptable in a given location. Zoning generally
overrules nuisance. For example, if a factory is operating
in an industrial zone, neighbours in the neighbouring
residential zone cannot make a claim in nuisance.
Jurisdictions without zoning laws essentially leave land
use to be determined by the laws concerning nuisance.
 Veale J in Halsey vs Esso Petroleum Co [1961]1 W.L.R
683 stated that the magnitude of the harm and in some
cases the nature of the locality are circumstances to be
considered in determining whether the defendant has
acted unreasonably. The law does not regard trifling
inconveniences; everything is to be looked at from a
reasonable point of view b) Utility of the defendant’s
conduct Since nuisance is the law of give and take the
court is inevitably concerned to some extent with the
utility or general benefit to the community of the
defendant’s activity. c) Abnormal sensitivity In
considering what is reasonable the law does not take
account of abnormal sensitivity in either persons or
property. The standard of deciding whether a particular
use of land exposes others to an unreasonable interference
is objective, in the sense that it has regard to reactions of
normal persons in the locality, not to the idiosyncrasies of
the particular plaintiff. Read · Relay vs Yorkshire
Electricity Board [1965] Ch.436 · Mombasa Auto
Services vs South British Insurance Co. [1950] 17 EACA
72
In the case of Robinson vs Kilvert (1889) 41 CH.D 88,
the defendant began a manufacture paper-boxes in the
cellar of a house the upper part of which was in
occupation of the plaintiff. The defendant’s business
required hot and dry air and he heated the cellar
accordingly. This raised temperature on the plaintiff’s
floor and dried and diminished the value of brown paper
which the plaintiff warehoused there; but it did not
inconvenience the plaintiff’s workmen nor would it have
injured paper generally. It was held that the defendant was
not liable in nuisance. That “a man who carries on an
exceptionally delicate trade cannot complain because it is
injured by his neighbor doing something lawful on his
property, if it is something which would not injure
anything but exceptionally delicate trade”.
Rylands vs Fletcher Principle is quite distinct from
Nuisance since it relates only to cases where there has
been some special use of property bringing with it
increased danger to others, and does not extend to damage
caused to adjoining land owners as a result of the ordinary
use of the land. See, Richards vs Lothian at p. 180 and
Sedleigh-Denfield Vs O’Callaghan [1940] A.C
880(Viscount Maugham’s judgment)
Who can sue in private nuisance? See; Thompson Swab
vs Ostak [1956] WLR 335 That the general principle is
that title is the basis for an action in nuisance. Lord Goff
stated that, the essence of the law of nuisance is about real
property. Thus a person with no interest in land has no
right of occupancy and cannot sustain an action in
nuisance. A person who has merely the use of the land
without either the possession of it or any other proprietary
interest in it eg a mere licensee on the land, a lodger, or a
guest cannot sustain an action in nuisance. See, Hunter vs
Canary Wharf Ltd 1997] 2 WLR 684, a person with
exclusive possession of the land. Lord Wright in
Sedleigh-Denfield Vs O’Callaghan [1940] A.C 880 at
902-903 stated that “He alone has a lawful claim who has
suffered an invasion of some proprietary or other interest
in land” That the ground of responsibility is the
possession and control of the land from which the
nuisance proceeds.
Who can be sued? a) The creator of the nuisance
Whether or not he is in occupation of the land on which
nuisance originates and it is no defence that the land is
now occupied by someone else and that he has no power
to abate the nuisance without committing trespass.
Creation may be construed to include continuing nuisance
when you should have abated it if in occupation of the
premises where it originates. In Sedleigh-Denfield Vs
O’Callaghan, Lord Atkin stated that, “In the context in
which it is used,“continued” must indicate mere passive
continuance. If a man uses on premises something which
he finds there, and which itself causes a nuisance by
noise, vibration, smell or fumes, he is himself, in
continuing to bring into existence the noise, vibration,
smell or fumes, causing a nuisance. Continuing, in this
sense, and causing are the same thing. It seems to me
clear that, if a man permits an offensive thing on his
premises to continue to offend—that is, if he knows that it
is operating offensively, is able to prevent it, and omits to
prevent it—he is permitting the nuisance to continue. In
other words, he is continuing it”
Read · Southport Corporation vs Esso Petroleum Co. Ltd
[1956] A.C 218,225, · Hall vs Beckenham Corporation
[1949] 1.K.B 716,728
b) The occupier, The occupier of the premises where
nuisance exists is in general liable during the period of his
occupancy. It is simple where he himself created the
nuisance, but further questions arise where it originated
(i) with someone lawfully on the premises; or (ii) with a
trespasser or as a result of an act of God; or (iii) with
someone from whom the occupier acquired the property.
Rowlatt J in the Division Court summaries this liability in
Noble v Harrison([1926] All ER Rep at p 287;[1926] 2
KB at p 338): The damage there was caused by an
overhanging tree with a latent defect and the decision was
against liability. His Lordship stated that; ”… a person is
liable for a nuisance constituted by the state of his
property (i) if he causes it;(ii) if by neglect of some duty
he allows it to arise; and (iii) if, when it has arisen without
his own act or default, he omits to remedy it within a
reasonable time after he did or ought to have become
aware of it.” It will be seen that the learned judge in the
third category makes no distinction according to whether
the “nuisance” is caused by trespassers or by natural
causes, and that he does not enter into any question as to
the limits of the effort or expenditure required of the
occupier. As a general statement of the law it was cited
with apparent approval by Dixon J in Torette House
Proprietary Ltd v Berkman ((1940), 62 CLR 637 at p
652).
In 1940 the dictum of Scrutton LJ ([1924] 1 KB at pp
357, 358) passed into the law of England when it was
approved by the House of Lords in Sedleigh-Denfield v
O’Callaghan. It establishes the occupier’s liability with
regard to a hazard created on his land by a trespasser, of
which he has knowledge, when he fails to take reasonable
steps to remove it. It was clear in that case that the hazard
could have been removed by what Viscount Maugham
([1940] 3 All ER at p 359;[1940] AC at p 895) described
as the “very simple step” of placing a grid in the proper
place. This statement of the law has been adopted in
Salmond’s Law of Torts (5th Edn)(1920) pp 258–265:
“When a nuisance has been created by the act of a
trespasser or otherwise without the act, authority, or
permission of the occupier, the occupier is not responsible
for that nuisance unless, with knowledge or means of
knowledge of its existence, he suffers it to continue
without taking reasonably prompt and efficient means for
its abatement.” if the occupier “adopts” or “continues” the
nuisance, he will be liable if damage is caused. This is the
view taken of the decision in Barker v Herbert[1911] 2
KB 633. Vaughan Williams LJ, at p 640,said that, to
impose a liability upon the possessor of land in such a
case, there must be either the creation of a nuisance by
him or a continuance by him of a nuisance.
Fletcher Moulton LJ in Salsbury vs Woodland [1970] 1
Q.B 324 said, at pp 642, 643: “In a case where the
nuisance is created by the act of a trespasser, it is done
without the permission of the owner and against his will,
and he cannot in any sense be said to have caused the
nuisance; but the law recognises that there may be a
continuance by him of the nuisance. In that case the
gravamen is the continuance of the nuisance, and not the
original causing of it”. He added that the knowledge of
servants and agents for whom the owner is responsible
must be attributed to him, and that cases might arise in
which his or their want of knowledge might be due to
neglect of duty.
Read, · Salsbury vs Woodland [1970] 1 Q.B 324 , ·
Matania vs National Provisional Bank [1938] 2 ALLER
633, · Sedleigh-Denfield vs o’Callaghan [1940] A.C 880
c) The landlord The general rule is that a landlord is not
liable for nuisance on the premises, as he is not in
occupation; the proper person to sue is the tenant.
However, the landlord may be liable, (i) If he has
authorized nuisance (ii) If he knew of nuisance before
letting. (iii) If he ought to have known of nuisance before
letting (iv) Where the landlord reserves right to enter and
repair or has implied right to do so. Read, · Goldman vs
Hangrave [1967] 1 A.C 645 · Leakey vs National Trust
[1980] Q. 485

Defences
1. Legislative authority/statutory authority Where the
alleged nuisance was caused by public authority acting
under a statutory power, the defendant may have this
defence that the conduct is permitted by statute.
However, this defence will depend on the construction
of the particular statute in question. In Tate & Lyle
Industries Ltd vs Greater London Council [1983] 1
ALLER 1159, [1983] 2 AC 509, Lord Templeman
summarized this defence that, “it is now well settled
that where parliament by express direction or by
necessary implication has authorized the construction
and use of the undertaking or works, that carries with it
an authority to do what is authorized with immunity
from action based on nuisance. The right of ation is
taken away… To this, there is made the qualification,
or condition, that the statutory powers are exercised
without negligence..” His Lordship further stated that
one of the reasons for this approach is that parliament
is presumed to have considered the interests of those
who will be affected by the undertaking or works and
decided that the benefits from those outweigh any
necessary adverse side effects

See, · Marriage vs East Suffolk River Catchment

Board [1950] 1 K.B 284 · A.G vs Ivan Eriya Kafeero
Nambule [1959] E.A 665 · Allen vs Gulf Refining Ltd
[1981] 1 ALLER 353,[1981] AC 1001

2. Planning permission · Lord Templeman in Tate &

Lyle Industries Ltd vs Greater London Council [1983]
1 ALLER 1159, [1983] 2 AC 509, stressed that the
principle underlying the defence of statutory authority
should be extended to planning permission. That
parliament set up a statutory framework and delegated
the task of balancing the interests of the community
 against those of individuals and of holding scales
between individuals to the local planning authority.
There is a right to object to any proposed grant,
provisions for appeals and inquiries. There is an added
safeguard for judicial review. If a planning authority
grants permission for a particular construction or use
in its area it is almost certain that some local
inhabitants will be prejudiced in quite enjoyment of
their properties. “Can they defeat the scheme by
bringing an action for nuisance? If not why?” Planning
permission is not a license to commit nuisance and a
planning authority has no jurisdiction to authorize
nuisance. However, a planning authority can, through
its development plans and decisions, alter the character
of a neighbourhood. This may have an effect of
rendering innocent activities which, prior to the
change, would have been an actionable nuisance. See
Allen vs Gulf Refining Ltd [179] 3 ALLER1008 at
1020 ,[1980] QB 156 at 174-175 per Cummimng-
Bruce LJ, quoted with approval on appeal.

2. Prescription A privilege to commit a private nuisance

may be acquired by prescription, if it would qualify as
an easement See, Hulley v Silversprings Bleaching co.
[1922] 2 Ch.268 4. Consent of the plaintiff see; Kiddle
vs City Business Properties Ltd [1942] 1 K.B 269,
Miller vs Jackson [1977] Q.B 966 5. Common benefit.
Read Bamford vs Turner (1862) 3B& S 66 (judgment
of Bramwell B). His Lordship questioned such a
defence that if an act that causes nuisance is for public
benefit, the plaintiff cannot recover. That whenever a
thing is for public benefit as properly understood- the
loss to the individuals of the public who lose will bear
compensation out of the gains of those who gain.
See also St. Helen’s Smelting Co. vs Tipping (1865)
QB 66 6.

Inevitable accident, see; Southport Corporation vs

Esso Petroleum Co. Ltd [1956] A.C 218 at 226 7.
Default of the plaintiff Read; East S.A Telegraph Co.
Ltd vs Cape town Tramways Companies Ltd [1902]
A.C 381 at 393.