Nuisance

Definition:

The law of nuisance is one branch of law which purpose is to provide comfort to persons who have

proprietary interest in land and to members of society generally through environmental conditions.

The law of nuisance is concerned with the balancing of competing interests.

- Damage

1. Must be proved to succeed in nuisance- not actionable per se

2. Must be reasonably foreseeable.

3. Actual damage need not be established for nuisance caused by smell.

The harm or damage usually occurs in nuisance cases are of 2 types:

1) and

2) interference to personal comfort which is specific to the tort of nuisance .

The rule in Rylands v Fletcher

The Defendants themselves were not negligent and neither were they vicariously liable for the

negligence of their independent contractors, but the HOL held them liable to the P

Elements Principle Case Held

Damage- 2 types:

1. Damage to property( easily indentifiable)

It also includes nuisance by encroachment on a neighbour’s land

Wong Lee Kui v Hong Tin Mining

Damage must be

proven in nuisance,

otherwise action will

fail.

2. Interference to personal

comfort which is specific to

the tort of nuisance .

Dato Dr Harnam Singh v Renal Link

Actual damage need not be proven if nuisance is caused by smell. Injury to health is not a request to proven nuisance by way of smell

Remedy 1. An injunction which

function is to prevent

nuisance from continuing

Woon Tan Kan (Deceased) & 7 Ors v Asian Rare Earth Sdn

2. Monetary compensation

which is usually granted for

damage to property.

3. Report to relevant

authority- Local Govt Act

1976

Bhd

The concept

of

reasonable

ness in

nuisance

The reasonableness or otherwise of

the D’s activity or act is central in

nuisance cases because only when

the interference is deemed

unreasonable will nuisance be

established. Reasonableness in

nuisance does not mean whether D

has taken adequate precautions to

avoid the risk of accident. In tort of

nuisance, reasonableness is

measured by balancing the rights

and interests of both parties which

is a process of compromise.

Syarikat Perniagaan

Selangor Sdn Bhd v

Fahro Rozi Mohdi &

Ors

Almost everyone of us has to tolerate a certain amount of interference from our neighbours and we in turn have right to make a certain amount of noise in the employment of our property. So the ordinary use of a residential property is not capable of amounting to nuisance

MBf Property Services Sdn Bhd v Madihill Development Sdn Bhd

There is no universal or precise formula available, but a useful test for measuring the reasonableness of the defendant’s activity is what is accepted as reasonable according to the ordinary usage of land of others living in that particular society.

Whether an activity amounts on

other factors such as the purpose of

the defendant’s conduct, location,

time, extent of damage, the way in

which the interference occurs,

motive and malice, the effect of the

interference and whether it is

Southwark London BC

v Mills & Ors, Baxter v

Camden London

P affected by noise made by other tenants, not due to their unreasonable behavior D not liable due to poor soundproofing. Not liable for nuisance

continuous or in stages or

intermittent.

Ordinary use of a residential

property is not capable of

amounting to nuisance.

Other factors (reasonableness):

1. Defendant’s conduct

2. Location

3. Time

4. Extent of damage

5. The way in which

interference occur

6. Motive

7. Malice

8. Effect of interference-

whether it is continuous or

intermittent.

Vs

Sampson v Hodson-

Pressinger [1981] 3

All ER 710 CA

Due to flawed

construction of roof

terrace, its ordinary

use caused excessive

noise and was an

actionable nuisance.

In determining the

existence of nuisance

requires the striking

of balance between

on the one hand, the

right of one part to

use his property for

his own lawful use of

enjoyment and on

the other, and the

right of other party to

the undisturbed

enjoyment of his

property.

Public Nuisance

Def: A crime but become actionable in tort law if P suffers particular damage over and above the

damage suffered by public generally. Must prove special damage.

Arises when there is an interference with public rights such as the obstruction of public highways or the selling of contaminated food.

Principle Case Held

The mere fact that an

obstruction has occurred

or that there is an

inconvenience does not of

itself turn into a nuisance.

Nuisance would only be

created if knowing or

having the means of

knowing of its existence, a

person allows it to

continue for an

unreasonable time or in

unreasonable

circumstances.

Attorney- General v PYA Quarries

Ltd

H: public nuisance arises when

an act materially affects the

reasonable comfort and

convenience of life of a class of

the society.

Majlis Perbandaran Pulau Pinang v

Boey Siew Than & Ors (give

definition for both public and

private nuisance)

H: it is clear that a public

nuisance, if, within its sphere,

which is the neighbourhood, it

materially affects the

reasonable comfort and

convenience of a class of the

subjects of the state.

Requirement: Interference

with public rights. Only

created if knowing or

having the means of

knowing of its existence, a

Gillingham Borough Council v

Medway (Chatham) Dock

The D’s conduct need not be

independently unlawful, but it

is the effect of his conduct on

the P that is considered.

person allows it to

continue for an

unreasonable time or in

unreasonable

circumstances.

Person who may claim

a) Criminal proceeding

If it is a criminal

proceeding, prosecution

lies at the instance of the

public prosecutor on

behalf of the government.

b) Civil proceeding- person

who suffers special or

particular damage

. A person who has

suffered special damage

can claim for damages for

public nuisance therefore

P need to prove that he

has suffered damage and

injury.

Following factors may be

used as guidance to

determine the existence of

special or particular

damage:

1) The type of extent of

damage is more serious. In

essence the P must suffer

more than what is suffered

by other persons

Pacific Engineering v Haji Ahmad Rice Mill

F: P was in the business of selling

heavy earth equipment and

construction equipment, namely

heavy factors and industrial forklift

trucks. Padi husk from the D’s

factory fly over the P’s premises and

P’s workers had to cover their

mouths and noses to prevent

themselves from inhaling the dust.

The P’s lubricant oil also became

dirty due to the dust from the padi

husk.

H: In an injunction against the

D, court held that there was no

law in this country as in

England, whereby a proceeding

may only be instituted upon the

consent of the Attorney-

General for public nuisance

cases. The court further held

that in an action for public

nuisance, a P may institute

proceedings without obtaining

prior consent from the

Attorney- General if he has

suffered special damage. In

this case the P had proved that

they suffered personal

discomfort therefore an

injunction preventing the D

from burning the rice husks in

the compound of their

premises was granted.

2) The damage must be a

direct consequence and is

substantial. An example of

direct damage is when a P

suffers breathing problems

due to the defendant’s

smoke pollution.

c) Civil proceeding- no

special damage suffered

by any particular

individual

Section 8 (1) of the

Government Proceedings

Act 1956 (GPA) provides

that the Attorney- General,

or two or more persons

who have obtained written

permission from the

Attorney-General (relator

action), may institute a suit

in public nuisance for a

declaration and injunction

or for such other relief as

may be appropriate to the

circumstances of the case.

Koperasi Pasaraya Malaysia Bhd v

Uda Holdings Sdn Bhd & 41 Ors:

H: in a relator action for public

nuisance, consent must first be

obtained from the Attorney-

General. In this case the action

failed as the P did not obtain

such consent. Court

additionally held that in a

relator action brought under

s.8(1) of the GPA, the P must

prove special damage arising

from public nuisance.

The requirement of the

Attorney-General’s

consent as laid down in

s.8(1) of the GPA need not

however, be met if the

claim is brought by a local

authority in the public

interest.

MPPP v Boey Siew Than: High court held that the P could

not sue the D without the

written consent of the

Attorney- General. On appeal

from the P’s, the federal court

held that since the P had

commenced its action based on

S.80 of the Local Government

Act 1976 which allowed a local

authority to take action in its

own name and it therefore

released the local authority

from the obligation stipulated

under s.8(1) of the GPA. This

release was said to be in the

interests of justice and of the

proper functioning of the P as a

local authority.

Private nuisance

Definition:

Read v Lyons & Co Ltd

- an unlawful interference with a person’s use comfort enjoyment and any interest that a person

may have over his land.

- Accepted by Hiap Lee Brickmakers Ltd v Weng Lok Mining

An interference becomes unlawful and constitutes a nuisance when it unreasonably interferes with

the P’s enjoyment of his land.

For neighbours, it is a balancing exercise between competing rights of land owner to use his land as

he chooses and right of neighbour not to have his use or enjoyment of land interfered with.

MPPP v Boey Siew Than – laid down the difference between public and private nuisance:

“ a nuisance is a public nuisance, if, within its sphere, which is the neighbourhood , it materially

affects the reasonable comfort and convenience of a class of the subjects of the state.

A private nuisance … is one which disturbs the interest of some private individual in the use and

enjoyment of property by causing or permitting the escape of deleterious substances or things such

as smoke, odours or noise.

The diff between a public and private nuisance is that, in regard to the former , rights which are

common to all subjects are infringed. Such rights are unconnected with the possession of or title to

immovable property.

In an action for private nuisance :

1. P must prove interference with the enjoyment of his land.

2. P must have an interest in land to be able to sue in private nuisance. ( public nuisance does

not require P to have any interest over land)

3. Persons having interest over land: landowner, tenant, licensee etc.

P need not prove special or particular damage.

Element Principle Case

Substantial interference - not actionable per se. Does not

require P to prove special or

particular damage, the P must prove

that he has suffered damage in

order to succeed.

- protects a person from 2 types of

damage/interference:

i. interference with use,

comfort or enjoyment of his

land

ii. physical damage to the land

- substantial interference differs

according to types of damage

(a) Interference with the

use, comfort or enjoyment

of land

-Collectively known as amenity

nuisance.

-Result in Feeling of discomfort –

unable to live peacefully and

comfortably on one’s own land

arising from D’s activity.

-what constitutes substantial

interference depends on facts and

- Loss of one night’s sleep due

to excessive noise – Andrea v

Selfridge & Co Ltd

-Using adjoining premises for

prostitution (Thompson-

Schwab v Costaki

circumstances of each case.

-Examples of substantial

interference: (case-by-case basis

based on surrounding

circumstances)

Woon Tan Kan (Deceased) & 7 Ors v

Asian Rare Earth Sdn Bhd

- P sued the D for an injunction

to restrain the defendant company

from operating and continuing to

operate his factory.

- the operating a factory produced

dangerous radioactive gases

- nuisance established – the

situation shall be something over

and above the normal

inconvenience

- annoyance and discomfort must be

established, but injury to health

does not.

-Persistent telephone calls

– Khorasandjian v Bush

HC: granted an injunction,

holding that the tort of private

nuisance was established.

SC: P’s health was being

affected harmfully and

insidiously, significant and to

substantial degree and

constituted substantial

interference.

Dato’ Dr Harnam Singh v Renal Link

(KL) Sdn Bhd [1996]

F: - the P had for 18 years

operated a clinic and hospital for

the treatment of ENT. The

defendant operated a renal clinic

and which patients receive

haemodialysis on the floor above

the P’s clinic.

The D was found liable for

emitting from their clinic

obnoxious fumes which

escaped downwards into P’s

clinic. P’s staff and patients

were found to have suffered

substantial damage ranging

from skin disease etc.

(b) Material or physical

damage to land or

property

General rule: actual physical

damage to land occurs = substantial

interference and is therefore

recoverable. However, there is no

automatic recovery of damage. It

must be established that the

Physical damage is substantial in

nature.

Amenity nuisance – what amounts

to substantial interference is a

question of fact and determinable

on a case by case basis.

Goh Chat Ngee & 3 Ors v Toh

Yan & Anor [1991] 2 CLJ 1163

-D carried out mining work on

his land – adjacent to P’s land.

-P claim that Mining

constituted unnatural use of

land – P’s land flooded by water

escaped form D’s land

-As a result, caused erosion to

P’s land

H- liable in nuisance for

unreasonable, unlawful &

substantial interference

Hotel Continental Sdn Bhd v Cheong Fatt Tze Mansion Sdn

A owned a hotel which were

building 20 floors extension.

The R owned the adjacent land

claimed that the piling works of

the A caused severe crack to

appear in their heritage

building. Their application for

an injunction was allowed as it

was found that unless an

alternative system of piling was

adopted, the safety and

structural stability of their

building would be endangered.

The court held that once the

D’s activity constitute an

actionable nuisance in law, it is

no defence that the D has taken

all reasonable precaution to

prevent it. In this case, though

the piling works were

temporary, it did not exclude

the respondent’s right to an

injunction as the physical

damage to their property

constituted an interference

which was actionable

Rapier v London Tramways

Co [1893] 2 Ch 588although D has taken necessary precautions and piling works were temporary – nuisance as physical damage constitutes substantial interference

2. Unreasonableness 2 points to be borne in mind:

- none of the factors are conclusive

of whether the interference is

unreasonable or otherwise. They

are merely relevant considerations

to be taken into account

- Substantial interference may

amount to unreasonable

interference and vice versa., quite

often the courts have held D’s

activities as being actionable

nuisances on the basis that they

constituted both substantial and

unreasonable interferences.

No clear-cut definition as to what constitutes unreasonable interference:

Hunter v Canary Wharf Ltd (HL)

F: The P claimed damage in

respect of interference with

their tv reception, for a period

of 2 years, caused by the D’s

nearby building which was 250

metre high. The court held that

in the absence of an easement,

the mere presence of a

neighbouring building did not

give rise to an actionable

nuisance. The court

acknowledge that interference

with TV reception may amount

to an amenity nuisance in

appropriate circumstances.

Held;Generally, for an action in

private nuisance to lie in

respect of interference with

the P’s enjoyment of his land, it

has to arise from something

emanating from the D’s land,

such as noise, dirt, fumes,

smell, vibrations and suchlike.

(a) Damage and location of the

plaintiff’s and defendant’s premises

The location of the P and D’s

premises are relevant

considerations in assessing whether

the def’s acitivity is unreasonable

and amounts to substantial.

St Helen’s Smelting v

Tipping [1865] 11 HL Cas 642

F:The P owned a rubber estate

which was situatied in an

industrial area. The Smoke from

the d’s copper-smelting factory

had caused considerable

damage to the P’s trees.

Held:Distinguished between

“sensible injury to the value of

the property” or “material

injury” (physical damage), and

injury in terms of personal

discomfort (non-physical

damage). For the latter type of

damage , his lordship stated

that the level of interference

must be balanced with

surrounding circumstances, and

the nature of the locality must

be taken into account.

Syarikat Perniagaan Selangor

Sdn Bhd v Fahro Rozi, Mohdi &

Ors [1981] 2 MLJ 16 FC

There was a lease of land – use

for skating, cinema and

restaurant. But D built an open

stage and staged some shows

and opened discotheque.

H- Living in urban area must

accept a lot of noise but no one

has the right to create

excessive noise.

(b) Public benefit of the

defendant’s activities

If the object of D’s conduct benefits

the society generally, it is more

likely that the conduct will not be

deemed unreasonable. But D’s

activity which benefits the public

will still constitute actionable

nuisance if the activity causes

damage to property or substantial

interference to P’s enjoyment of his

land.

Perbadanan Pengurusan

Taman Bukit Jambul v

Kerajaan Malaysia [2000] 1

AMR 228 (building government

clinic)

The D renovated some units in

a flat managed by the P in

order to set up a government

clinic. The P argued that the

renovation was not only

conducted without their

approval, but that it caused

pipe and drain blockages.

Further, the renovated units

intruded into the common five-

foot pathway, thereby causing

nuisance.

H: The court denied the P’s

caim.Whether something

amounted to nuisance or not

must be considered with

reference to local

circumstances and

surroundings. An inconvenience

does not necessarily give rise to

an actionable nuisance. The

purpose of the renovation

provided substantial public

benefit. On the facst the D had

provide a new 5-foot way and

so no nuisance was created in

this aspect. On the issue of

predecessor and on the

principle of equitable estoppels

the P was stopped from going

back on the consent given by

their predecessor.

Even if D’s activity gives rise to

public benefit, this does not

automatically mean that his

activity is not actionable.

Adams v Ursell [1913] 1 Ch

269 (trade of selling fried fish –

smell)

- The D was in the trade of

selling fried fish. The shop was

located in the residential part

of a street. Faced with a claim

for an injunction. He argued

that his business benefited the

public, especially the poor and

therefore the smell produced

by his trade was justified. The

court rejected the defence as

P’s comfort and convenience

also had to be considered.

(c) Extraordinary sensitivity on the

part of the plaintiff

The law of nuisance is not

sympathetic to a P who is extra

sensitive, whether the sensitivity is

related to P himself or to his

property.

Sensitivity cannot be used as a basis

for claiming that D’s conduct

constitutes an unreasonable and

substantial interference, but once

unreasonable and substantial

interference is established,

sensitivity will not deprive P from

obtaining a remedy.

Robinson v Kilvert [1889] 41

Ch D 88

F:D – business of making paper

boxes; and P lived in the floor

above the same premises was

in the business of selling special

paper which was sold according

to weight. The hot air from the

D’s place caused the moisture

in the P’s paper to dry up. The

raise in temperature in P’s

premises did not cause

inconvenience to P’s workers

and it would not have affected

normal paper.

H: not liable as that ordinary

paper would not have been

affected by hot air and

therefore the P’s property was

extra sensitive.

(d) Interference must be

continuous

Continuous or occurs very often as

generally a continuous activity will

constitute substantial interference.

It is not conclusive requirement but

it is certainly a factor in deciding

whether the interference is

substantial or otherwise.

Delaware Mansions Ltd v

Westminster City

Council [2001] 4 All ER 737 HL

H:Roots of a tree belonging to

D had spread to the

neighbouring property and

caused structural cracking to

that property amounted to

continuing nuisance until the

completion of remedial works.

Matania v National Provincial

Bank Ltd and Elevenist

Syndicate Ltd [1936] 2 All ER

633

H: Yet a temporary noise and

dust held to constitute a

nuisance.

(e) Temporary interference and

isolated incident

General principle: the more serious

the interference, the more likely the

court will regard it as unreasonable.

MBf Property Services Sdn Bhd

v Madihill Development Sdn

Bhd (No2 )[1998] 4 CLJ 136

F:The construction of a road

over D’s land for the purposes

of connecting 2 pieces of P’s

lands was an actionable

nuisance as the road was

tarred, pre-mixed and thus

permanent in nature.

H:A mandatory injunction was

accordingly granted to D.

In cases of temporary

interference, courts are likely to

be reluctant to grant an

injunction except in extreme

cases, (eg. damages will not be

an adequate remedy).

Hotel Continental Sdn Bhd v

Cheong Fatt Tze Mansion Sdn

Bhd [2002]

If P is claiming for damages as

opposed to injunction, the

nature of injury suffered by him

will be a relevant factor to

determine whether the

temporary interference is an

actionable nuisance. If his injury

is temporary interference, the

court may hold that the

interference is too trivial to be

considered as a nuisance. [eg.

renovation of house]

Sedleigh-Denfield v

O’Callaghan [1940

H: It is a nuisance as a result of

allowing a culvert on their land

to remain blocked, P’s adjoining

property was flooded.

Spicer v Smee [1946]

F:P’s house was burnt down

due to a defective wiring

system in D’s adjoining house.

H: D is liable as there was a

dangerous state of affairs on his

premises. The court held that

private nuisance arises out of a

state of things on one man’s

property whereby his

neighbor’s property is exposed

to danger.

Thean Chew v The Seaport

(Selangor) Rubber Estate Ltd

F: P’s husband suffered injuries

from which he later died when

a diseased rubber tree

belonging to the D fell onto

highway, and onto the lorry in

which the deceased was

travelling.

H: D liable in nuisance as he

had failed to remedy the

dangerous state f his property

within a reasonable time after

he did or ought to have become

aware of it.

(f) Malice

The existence of malice may cause

D’s act to be unreasonable.

Christie v Davey [1893]

F: P was a music teacher who

conducted music classes at her

house. Her neighbor, D, did not

like the sounds from the

musical instruments and in turn

shouted, banged at the

adjoining walls, and clashed

pots and pans whilst P was

conducting her classes.

H: D was malicious in his

actions and an injunction was

granted to P.

Hollywood Silver Fox Farm v

Emmett [1936]

F:P bred special foxes which

were extremely sensitive during

their breeding season. D

intentionally let out a few

gunshots near the cages with

the aim of causing damage.

H: Liable even though P here

used his premises for a

particular purpose which was

extraordinarily sensitive,

nevertheless the D’s act was

unnecessary and malicious,

rendering it unreasonable; thus

the fact that the P’s property

was ‘sensitive’ was irrelevant.

Distinguished case:

Bradford Corporation v Pickles

F:D deliberately prevented the

flow of water on his land so

that P’s land received less

water.

H:not liable coz P has no right

to unlimited water supply. D’s

act was in fact lawful and his

bad motive was irrelevant.

Defences: 1. prescription. Eng: 20 yrs,

Malaysia: easement, not

prescription is a good

defence – S282(1), (2), (3)

and 284 NLC

2. statutory powers. Local

authority – need to prove

interference cannot be

avoided even though

reasonable precautionary

measures has been taken.

Goh Chat Ngee v Toh Yan

Other defences 1. Necessity

2. Consent

3. Defence of property

4. Contributory negligence S12

(1) CLA

5. A plea that P came to a

nuisance, in that D’s

operation has been carried

out before P moved into a

varsity is not a good

defence.

Bliss V Hall, Miller v Jackson