The word nuisance literally means annoyance or any source of inconvenience. In law, it signifies, according to Blackstone, "anything that worked hurt, inconvenience, or damage." Atcommon law, nuisance is a condition on a property or some use of a property that interferes with a neighbouring owner’s ability to enjoy their property. Nuisance is a common law of tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also “common”) or private. Nuisance is one of the oldest cause of action known to the common law. It signifies that the “right of quiet enjoyment” is being disrupted to such a degree that a tort is being committed.
Nuisance is the branch of law of tort most closely concerned to environmental protection.Thus concerns with noxious fumes, pollution by oil as in the case of Esso Petroleum Co. Ltd v. South Corp .[1956] A.C 218
Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it. Acts interfering with comfort, health or safety are the example of it. The interference may be anyway, e.g., noise, vibration, heat, smoke, smell, fumes, water, gas, electricity, excavation or disease producing germs.
According to Pollock “Nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment of his property, or in some cases, in exercise of common right.” It is governed by the common law maxim which states sic uteretuoutalienum non laedas translated as ‘so use your own property as not to injure your neighbour’ or that the man must not make such use of his property as unreasonably and unnecessarily to cause inconvenience to his neighbor. A legal action in nuisance is one aimed at redressing harm arising from the use of a property (public or private), where such usage would substantially and reasonably amount to invasion of interest, annoyance, inconvenience or injury to an individual or the general public; whether or not the invasion is done innocently, negligently or intentionally.
Three important qualifications must be made, however, to this broad generalization
First, there are areas of nuisance such as obstruction of highways, or of the access thereto, which have no ‘environmental’ flavor.
Second, the prevailing stance of nuisance liability is that of protection of private rights in the enjoyment of land, so that control of injurious activity for the benefit of the whole community is incidental.
Third, the common law nuisance has been supplemented and to a large extent replaced by an array of statutory power designed to control environmental damage.
In Tanzania one may refer the Environmental Management Act, 2004 and the Public Health Act, 2009 for principal legislations and also most of subsidiary legislations particularly those made at local government level aiming at prevention of environment.
NUISANCE VERSUS TRESPASS
Nuisance should be distinguished from trespass. Trespass is a direct physical interference with the plaintiff’s possession of land through some material or tangible object.
The points of distinction between Nuisance and Trespass are as follows:-
If interference is direct, the wrong is trespass, if it is consequential, it amounts to nuisance. Planting a tree on another’s land is trespass. But when a person plants a tree over his own land and the root or branches project into the land of another person that is nuisance; to allow stones from a ruinous chimney to fall upon those premises are the wrong of nuisance. While trespass action protects against an invasion of one’s right to exclusive possession of land, for example where a land owner drops a tree across her neighbors boundary line thereby liable for trespass, she may be liable for nuisance where however, her dog barks all night keeping the neighbour awake.
KINDS OF NUISANCE
PUBLIC NUISANCE
Public nuisance is a crime. Public nuisance is interference with the right of public in general and is punishable as an offence. The provision of Section 170 of the penal Code is to the effect that “Any person who does an act not authorized by law or omits to discharge a legal duty and thereby causes any common injury or danger or annoyance, or obstructs or causes inconvenience to the public in the exercise of common rights, commits the misdemeanour termed a "common nuisance", and is liable to imprisonment for one year”.
The classic definition of public nuisance was given in the case of Attorney General v PYA Quarries 1957] 2 QB 169, where in this case Quarrying operations were conducted in such a way that local residents were affected by and vibrations from explosions. The court defined public nuisance as ‘one which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects’. The defendant’s activities were held to amount to a public nuisance.
Obstructing a public way by digging a trench, or constructing structures on it are example of public nuisance. Although such obstruction may cause inconvenience to many persons but may be hundreds of action for a single act of public nuisance.
To avoid multiplicity of suits, the law makes public nuisance only an offence punishable under criminal law. In Dr. Ram Raj Singh v. Babulal (A.I.R. 1982 All. 285, 289) the defendant created a brick grinding machine adjoining the premises of plaintiff, who was a medical practitioner. The brick grinding machine generated dust, which polluted the atmosphere. The dust interred the consulting chamber of the plaintiff and caused physical inconvenience to him and patients, and their red coating on cloths, caused by the dust, could be apparently visible.
It was held that special damages to the plaintiff had been proved and a permanent injunction was issued against the defendant restraining him from running his bricks grinding machine there.
Civil right action is also available to the person who has suffered some special or particular damage, different from what is inflicted upon public as a whole. Now the public nuisance, also becomes a private nuisance.
The expression“special damage” means damage caused to a party in contradiction to the public at large. For example, digging trench on a public highway may cause inconvenience to the public at large. No member of public, who is obstructed or has to take a diversion along with others, can sue under civil law. But if anyone of them suffer more damage than suffered by the public at large, e.g., is severely injured by falling into the trench, he can sue in tort. In order to sustain a civil action in respect of a public nuisance, proof of special and particular damage is essential. If the plaintiff cannot prove that he has suffered any special damage more damage than suffered by the other members of the public, he cannot claim any compensation for the same.
STATUTORY NUISANCE
The increasing concern of central government for public health and the environment has led to a mass of legislation concerned with noise, run down premises, clean air and accumulations. Although statutory nuisances are the most important in terms of the environment, they are not dealt with in any detail in a tort course as they are enforced by public bodies. From the claimant’s point of view, the most significant point about statutory nuisance is that enforcement is in the hands of the local authorities. This saves a person who is affected from the time and expense of having to bring a private action. The normal method of enforcement is for the local authority to serve a abatement order on the offender.
PRIVATE NUISANCE
Private nuisance is a civil wrong. Is an interference with the right of an individual. To constitute the tort of nuisance, the following essentials are required to be proved:
I. Unreasonable interference;
II. Interference with the use of enjoyment of land;
III. Damage.PrivateNuisance is not a crime but a tort.
Private nuisance is a tort which deals with disputes between adjacent landowners. It involves drawing a balance between the right of one person to use their land in whatever way they wish and the right of their neighbour not to be interfered with.
It is a wrong which interferes with the enjoyment of some right to land, short of being a trespass, e.g. by noise, smoke etc. It is not a direct interference with land. Overhanging branches of a tree can be a nuisance. Obstructing the passage of light into one’s house is a nuisance as was said in Fleming and Hislop11 App. Case 66. “What causes material discomfort and annoyance for the ordinary purposes of life to a man’s house or to his property, is to be restrained although the evidence does not go to the length of proving that health is in danger”.
CLAIMANTS IN PRIVATE NUISANCE
Private nuisance is historically concerned with the regulation of land use between neighbors. This is reflected in the rule that the claimant in an action for private nuisance has to have an interest in the land or exclusive possession of the land which is affected in order to be able to sue. This has been confirmed by the House of Lords in Wharf Ltd Hunter v Canary (1997] 2 All ER 426), where an action was denied to spouses and children of tenants of a property affected by dust and interference with television reception. The rule can be traced to the case of Malone v Lasky [1907] 2 KB 141, Malone The wife of a tenant of premises was injured when a cistern was dislodged by vibrations caused by the defendant. The wife had no claim in private nuisance, as she had no proprietary or possessory interest in the land.
DEFENDANTS
The law concerning defendants in private nuisance actions is complex and will be divided into three categories of defendant namely; Creators Occupiers Landlords.
A) Creators
The creator of a nuisance may always be sued even though they are no longer in occupation of the land from which the nuisance originates.
This rule must be read in the light of the House of Lords decision in Cambridge Water Co Counties Leather plc v Eastern [1994] 1 All ER 53. It is necessary that the defendant should have been able to foresee damage of the relevant type when the act alleged to be a nuisance occurred. The defendant (creator) will not be liable for continuing damage when they are unable to rectify the situation.
B) Occupiers
In most nuisance cases it will be the occupier of the land from which the nuisance originates who is sued. The occupier is liable for nuisances created by themselves, and by their servants (on the basis of vicarious liability), but not for nuisances created by an independent contractor, unless the occupier is under a non delegable duty or the contractor is working on the highway and creates a danger to highway users . In Bower v Peate [1876] 1 QBD 321, The parties owned adjoining houses. The defendant employed a contractor to work on his house. During the course of the work the support of the plaintiff’s house was undermined. The defendant was held liable as he was under a non delegable duty.
Historically, an occupier was not liable for nuisances created by trespassers or acts of nature. This was in line with the view that ownership of land was a source of rights rather than duties. Recent case law has changed this view, imposing duties of affirmative action on land owners for dangers emanating from their land. In SedleighDenfield v O’Callaghan [1940] AC 880,A trespasser installed piping in a ditch on the respondent’s land. Three years later the pipe became blocked and the appellant’s land was flooded. One of the respondent’s servants had cleaned out the ditch twice a year. As the respondents were presumed to know of the danger and had done nothing to abate it they were liable in nuisance. Liability in these circumstances would arise where the occupier, with knowledge of the existence of the nuisance, adopted it for his own purposes or continued it by failing to take steps to avoid it. In Goldman v Hargrave 1967] 2 All ER 989, A redgum tree on the appellant’s land was struck by lightning and caught fire. The appellant had the tree cut down and left the fire to burn out. A strong wind got up and the fire spread and damaged the respondent’s property.
The Privy Council held that where an occupier becomes aware of the existence of a nuisance, he is under a duty to take positive action. The standard of care imposed on the occupier is subjective rather than the normal objective standard. In determining the occupier’s liability, the court must take into account the cost of abatement and balance it against the occupier’s resources. In these context resources means financial and physical resources. The appellant was held liable for failing to abate the nuisance. In Leakey v National Trust for Places of Historic Interest or Natural Beauty ,The defendants occupied a hill which was known to crack and slip as a result of weathering. Debris fell on the plaintiffs’ land and the plaintiffs asked the Defendants to remove it. The defendants denied responsibility but were found liable in nuisance. The Court of Appeal held that the principle in Goldman applied in English law and extended to nuisances caused by the state of the land itself. The court also held that the action had been correctly brought in nuisance.
C) Landlords
The law on whether a landlord is liable for a nuisance is complex. The basic principle is that the landlord will not be liable as they have parted with control of the land. There are a number of exceptions to this principle. A nuisance existed at the time of the letting the landlord will be liable if they knew or ought to have known of the nuisance before letting. They will also be liable if they can be said to have authorized the nuisance.In Harris v James 1876] 45 LJQB 545, A field was let byS to J for J to work it as a lime quarry and to set up lime kilns. The plaintiff complained of smoke from the kilns and nuisance caused by blasting in the quarrying. J was liable as occupier and commission of a nuisance. In Tetley v Chitty ,The defendant council allowed a gocart club to use its land. An action in nuisance was brought by nearby residents on the ground of noise. The council’s defense that it was not liable as it had neither created the nuisance nor permitted one to occur was rejected. The noise was an ordinary and necessary consequence of the gocarts and the defendant had therefore expressly or impliedly consented to the nuisance. In Southwark London Borough Council v Mills 1999] 4 All ER 449, The landlords let flats in a communal block which had very poor soundproofing resulting in the noises of everyday living being audible through the walls.
It was held by the House of Lords that the normal use of a residential flat cannot be a nuisance and as the tenants were not liable for nuisance the landlord could not be liable for authorising nuisance.
§ If the landlord has taken a covenant in the lease from the tenant that the tenant will not cause a nuisance and the nuisance is not an inevitable consequence of the letting (as in Tetley v Chitty v Chitty not liable. ), the landlord is not liable.
1. UNREASONABLE INTERFERENCE
Every interference is not a nuisance, but it may cause damage to the plaintiff’s property or may cause personal discomfort to the plaintiff in the enjoyment of property. To constitute nuisance, the interference should be unreasonable. Every person must put with some noise, some vibration, some smell, etc. so that members of the society can enjoy their own right. If I have a house by the side of the rode, I cannot bring an action for the inconvenience which is necessarily incidental to the traffic on the road. I cannot sue my neighbor if his listening to the radio interferes with my studies. So long as the interference is not unreasonable, no action can be brought.
“A balance has to be maintained between the right of occupier to do what he likes with his own, and the right of his neighbor not to be interfered with.” If the interference is unreasonable, it is no defence to say that it was for the public good. So the persistent infliction of harm by a gasboard is not justified. “For the purpose of nuisance, it has to be seen as to “what is reasonable according to ordinary usages of mankind living in society, or more correctly in particular society.” An unreasonable activity cannot be excused on the ground that reasonable care had been taken to prevent it from becoming a nuisance.
Sensitive Plaintiff (sensitivity)
An act which is otherwise reasonable does not become unreasonable and actionable when the damage, even though substantial, is caused due to sensitiveness of the plaintiff or the use to which he puts his property. If certain kinds of traffic are no nuisance for a healthy man, it will not entitle a sick man to bring an action if he suffers thereby, even though the damage be substantial. If some noise which do not disturb or annoy an ordinary person but disturb only the plaintiff in his work or sleep due to his over sensitiveness, it is no nuisance against this plaintiff.
If the damage is due more to the sensitivity of the claimant’s property than to the defendant’s conduct then no nuisance is committed. In Robinson v Kilvert 1889] 41 ChD 88, The plaintiff occupied the ground floor of the defendant’s premises and used it to store brown paper. Heat created by the defendant’s manufacturing process damaged the paper.
It was held that the damage was due more to the sensitivity of the paper than to the defendant’s activities and there was no nuisance.
Does Nuisance cannot state of affairs (Public utility)
Nuisance is generally a continuing wrong. A constant noise, smell or vibration is a nuisance and ordinary and isolated act of escape cannot be considered to be a nuisance. The wrongful escape is continuous, intermittent or isolated, it is actionable. An intermittent interference may be probably more annoying than a constant one. “An intermittent noise, particularly when it does not come at stated intervals is likely to be more disagreeable than if it were constant.”
Can the defendant advance the argument that although their activity may be causing damage to the claimant, it is in the public interest that they be allowed to continue? The traditional view is that public interest is irrelevant to the question of private rights and will be ignored.
Malice
The act of defendant which is done with an evil motive, becomes an unreasonable interference, it is actionable. A person has right to make a reasonable use of his own property but if the use of his property causes substantial discomfort to others, it ceases to be reasonable. “If a man creates a nuisance, he cannot say that he is acting reasonably.
In Christie v. Davey (1898] 1 Ch. 316, the defendant, bring irritated by considerable amount of music lessons by the plaintiff, a music teacher, living in the adjoining house, maliciously cause discomfort to plaintiff by harming against the parting wall, beating of trays, whistling and shrieking. The court granted an injunction against the defendant.
The court held that noise which were made in the defendant’s house were not of legitimate kind. No proprietor has an absolute right to create noise upon his own land, because any right which the law gives him is qualified by the condition that it must not be exercised to the nuisance of his neighbors or of the public. If he violated that condition, he commits a legal wrong, and if he does so intentionally, he is guilty of a malicious wrong, in its strict legal sense. In Hollywood Silver Fox Farm v. Emmett 1936] 2 KB 468,The plaintiff bred silver foxes. The defendant, after an argument, ordered guns to be fired on his own land but close to the plaintiff’s land. His intention was that the noise would prevent the foxes from breeding. An injunction was granted to restrain the defendant. What would otherwise have been a reasonable act was a nuisance because of his malice.
The reasonableness test
Where the interference causes sensible personal discomfort the court will apply a reasonableness test to determine whether it amounts to a nuisance. A number of factors may be taken into account, either in isolation or in conjunction to determine whether the defendant’s conduct was reasonable. It is important to note the effect of Hunter v Canary Wharf Ltd [1997] 2 All ER 426, on this point. The House of Lords’ stress on nuisance being a tort to land and not a separate tort of causing discomfort to people is a reference to the distinction between nuisances causingmaterials damage to the property and those causing sensible personal discomfort. Smells and noise would normally come into the latter category. One of the main thrusts in Hunter was a desire to prevent the distinction from becoming one of a distinction between property and personal damage. This means that in future cases the court will concentrate on the land itself rather than on the landowner, and the landowner must find a way of identifying how their land has been affected, whether this is in a reduction in its capital value or in its amenity.
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