14. Nuisance

Question 1

Is nuisance a separate tort?

Answer 1

NO (type of harm)

1) Invasion of;
- Private property
- Public rights

2) Liability;
- Negligent
- Intentional
- Strict

Question 2

What is required for public nuisance?

Answer 2

1) Unreasonable interference

2) Either;
- Government: Community’s health/safety/property rights
- Individual: Unique damage (NOT suffered by public at large)

Question 3

What is required for private nuisance?

Answer 3

1) Substantial interference
- Offensive/Inconvenient/Annoying to ‘average’ person in community
- NOT P’s hypersensitivity/specialised use of his land

2) Unreasonable interference
- Severity of injury > Utility of D’s conduct
- D’s conduct’s reasonableness based on neighbourhood/land values/alternative conduct open to D

3) P’s use/enjoyment of land
- Actual possession (Tenant)
- Immediate right to possession of land

Question 4

What is the difference between private nuisance and trespass to land?

Answer 4

Private nuisance

• Use/Enjoyment (Tenant)
• Intangible invasion

Trespass to land

• Exclusive possession (Landlord)
• Tangible invasion

Question 5

What is the difference between public and private nuisance?

Answer 5

Public nuisance

• NOT substantial interference
• Community’s rights
• Unique damage

Private nuisance

• Substantial interference (to average citizen)
• Tenant’s rights
• NOT unique damage

Question 6

What remedies are available?

Answer 6

Damages (legal remedy)

Injunctive relief

• Damages NOT available/adequate (irreparable injury)
• Must balance hardships in granting/denying relief (UNLESS D’s conduct was wilful)

Abatement by self-help (Public nuisance)

• By public authority
• By private citizen (unique damages suffered)

Abatement by self-help (Private nuisance)

1) P’s notice to D (enter D’s land)
2) D refuses to stop
3) P can use necessary force (NOT deadly)

Question 7

What defences are available?

Answer 7

Conduct of others (concurrent)

Contributory negligence

• ONLY vs negligent trespass
• NOT vs strict liability/intentional trespass

‘Coming to the nuisance’

• P purchased land next to already existing nuisance
• P intentionally moved next to nuisance for purpose of harassing a lawsuit (bad faith)

NOT legislative authority (zoning ordinance)
- NOT conclusive defence (persuasive)