cause of action where substantial and unreasonable
interference with the occupiers use and enjoyment of
land; goldman v hargrave
interference must be reasonably forseable; cambridge water cov
eastern counties leather PLC
no necessity to show it was caused negligently
strict liability; if interference is substantial, liability will be imposed
regardless of the fact that D took reasonable precautions to gaurd against
interference; fennel v robson excavations
interests protected by nuisance
• Material property damage
• Noise, dirt, smells, vibrations, smoke and fumes
(Halsey v Esso Petroleum Co Ltd
• Harassing telephone calls (see Khoransidijian v Bush [
• Planes flying overhead (Dennis v Ministry of Defence
• Encroaching tree branches (City of Richmond v Scantelbury
• Picketing, where it amounts to ‘harassment and besetting’
(Animal Liberation v Gasser [
• Golf balls or cricket balls hit onto the property: (see eg Campbelltown
Golf Club Ltd v Winton & Anor
not protected
mere presence of building; hunter v canary wharf
intereference with tv or radio reception
activites of neighbours eg.naked on own land
unsighliness of property
material damage
damage to property that is more than trivial
will be actionable; hasley v esso petrolium
co ltd
intangible interference with enjoyment
balance number of factors
locaility, timing, frequency, duration, sensitivity of plaintiff, and
motivation for the activity; hasley v esso petroleum
character of neighbourhood at time
complained of; munro v southern
dairies
no defence if p came to property; munro
title to sue
same as locus standi
who can be sued
if not occupier can still be sued; fennel v robson
excavations
can also sue occupier if vicariously liable ,
occupier has authorised the nusance
de-jager v payneham and magill lodges
hall inc, occupier becomes aware of
nuisance and fails to take reasonable
steps to remove; defleigh denfield v
o'callagham
defences
consent clarey v woman's college
stat authority
(a) the statute imposes a duty to engage in a
particular activity and the nuisance is an
inevitable consequence of that activity.
However, this defence will be lost where the
nuisance was not inevitable and could have
been avoided by the exercise of reasonable
care: Southern Properties (WA) Pty Ltd v
Executive Director of the Department of
Conservation and Land Management [No 2]
[2010] WASC 45 at [122]-[123] per McLure P
(Buss JA agreeing at [336]).
(b) the statute confers a power to perform an
activity and is specific as to the manner and
location of that activity, and the nuisance is the
inevitable consequence of that activity (see
Mendelson p 689).
(c) the statute confers a power to perform the
activity, and leaves the manner of performance to
the defendant, the defendant will be liable where
the it could have avoided the nuisance by the
proper exercise of the statutory power: Southern
Properties (WA) Pty Ltd v Executive Director of
the Department of Conservation and Land
Management
remedies
abatement of self-help;
make sure do not commit
another tort; gazzard v
hutchenson
injunction
damages; general for discomfort and inconvienece;
dennis v MOD, special for cost of repair, consequential
economic loss