Differences: Private Nuisance Public Nuisance

Differences
Private Nuisance Public Nuisance
i) affects an individual’s rights to

use and enjoy his or her private
 i) affects the public as a whole
rather than a single person.
property.
ii) an individual’s rights include the ii) rights are a little more extensive
right to quiet enjoyment of his or than private rights and include
her land, the right to physical indecency, destroying the quality of
possession of the land and the right the air and spreading contagious
to transfer the land. An action, diseases - no interest in land is
behavior, object or anything else required.
that impedes these rights is
considered a nuisance - the claimant
must have an interest in land.
iii) Arise from defendant’s use of iii) Arise from activities not related
land to the use of land
Differences
Private Nuisance Public Nuisance
iv) the plaintiff must prove

interference with the enjoyment of
his land - plaintiff must have an
 iv) a claim based on public nuisance
does not require the plaintiff to
have any interest over land (MPPP
interest in land to be able to sue in v Boey Siew Than [1978] 2 MLJ 155,
private nuisance (Khorasandjian v at 158 - where the difference
Bush [1993] QB 727- where this between public & private nuisance
requirement was not met). was laid down) .
v) Civil wrong v) A crime as well as a tort. Subject
to a criminal sanction (see sec 268 of
the Penal Code.
E.g the pollution of streams with
any filth and trade use within a
local authority area could constitute
a nuisance as well as being a
criminal act (see sections 69 & 70 of
the Local Government Act 1976).
Differences
Private Nuisance
vi) There are two requirements


Public Nuisance
vi) in a public nuisance it is vital

that must be satisfied in a private to satisfy the requirements of: the
nuisance i.e. substantial nuisance has affected a class of
interference & unreasonableness. people and the claimant has
suffered special damage.
vii) Prescription is a defence in vii) Prescription is not a defence

private nuisance. Prescription in public nuisance.
refers to where a defendant may
be held to have acquired the right
to commit a private nuisance.
This applies where it can be
shown that the nuisance has been
actionable for at least 20 years,
and the claimant was aware of
this during the relevant period.
NUISANCE

Who can sue in Private Nuisance? (Continuation)
• Furthermore, in addressing the issue of the person who must sue
should have either a proprietary or possessory in the land
reference could be made to the case of Malone v Laskey [1907] 2
KB 141, where the wife of an occupier suffered personal injuries
caused by a bracket falling off the wall unto her head. The
mishap was due to vibrations coming from the defendant’s
adjoining premises. The court denied her remedy as she did not
have any interest in the land. See also the case of Hunter v Canary
Wharf [1997] 2 All ER 426, where the residents in the area of the
Canary Wharf development experienced interference with the
television signals due to the construction of an 800 foot metal-
plate tower. Some of the claimants were homeowners whilst
others were family members, lodgers and others without a
proprietary interest in the property affected. The Court of Appeal
had ruled that occupation of a home was a sufficient basis for a
claim but this was reversed by the House of Lords who reinstated
the requirement of a proprietary interest stated in Malone v
Laskey.
NUISANCE

Who can be sued in Private Nuisance?
• Three categories of persons are potentially liable in private
nuisance. They are creators of the interference, occupiers
and landlords.
(a) Creator- The source or creator of the interference, whether
or not he occupies the land from which the interference
emanates, will be liable for the nuisance. In other words,
anyone who creates a nuisance by some act (rather than an
omission) can be sued for nuisance, regardless of whether
that person owns or occupies the land from which the
nuisance originates. Nuisance need not come from privately
owned land; in Thomas v National Union of Mineworkers
(South Wales Area) (1985), it was held that striking miners
picketing in the road outside a factory could be liable in
private nuisance.
NUISANCE

Who can be sued in Private Nuisance? (Continuation)
• Three categories of persons are potentially liable in private nuisance.
They are creators of the interference, occupiers and landlords.
(a) Creator-
• It is, therefore, important to note that if an employee rears animals on
a piece of land for his employer-licensee, and the latter does not
ensure that the waste of the animals are properly channelled out of
that land, he will be liable even though it is the employee and not the
licensee himself, who is in occupation of the land. This is because the
licensee will be deemed to have been invested with the management
and control of the premises (see the case of Southport Corporation v
Esso Petroleum Ltd [1953] 2 All ER 1204). The question is who
authorises the activity and whether interference is foreseeable from
that activity (see the case of Tetley v Chitty [1986] 1 All ER 663). There
is no requirement that the defendant creator must have an interest
over the land or that the land belongs to him.
NUISANCE
•

Three categories of persons are potentially liable in private nuisance. They are
creators of the interference, occupiers and landlords.
(b) Occupier- In the majority of cases, the defendant will be the occupier of the
land from which the nuisance comes. An occupier need not be the owner of the
land e.g. where land is rented to a tenant, the tenant will usually be considered
the occupier, and can be sued for creating nuisance. The occupier may also be
liable for the acts and omissions of third parties in the following situations: (i)
Servant or employee (an occupier is liable for the nuisances caused by persons
who are subject to his control, based on the principle of vicarious liability (see
the case of Spicer v Smee [1946] 1 All ER 489). (ii) Independent contractor (an
occupier may also be liable for the act or omission of an independent contractor in
circumstances where the duty is ‘non-delegable’. See the case of Bower v Peate-
where the defendant was found liable when his independent contractor undermined
the support for the plaintiff’s adjoining house. The principle that arose from this case
is: if the nature of work that a man employs another to do is expected to give rise to
injurious consequences to his neighbour, he must do all that is necessary to prevent
the injury from materialising and he cannot pass over this burden to the
independent contractor. The duty of care on his part is ‘non-delegable’.
NUISANCE

(b) Occupier-
• (iii) Trespasser- See the case of Sedleigh Denfield v O’Callaghan- the
court (HL) found the defendant liable as his employees, who cleaned
the ditch should have known that the condition of the pipes gave rise
to a risk of flooding and this knowledge was imputed to the
defendant. It was stated that 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. (iv) Licensees- The question of
whether an occupier, a highway authority; may be liable for
interference committed by a third party on the highway arose in
Parimala a/l Muthusamy & Ors v Projek Lebuhraya Utara Selatan
[1997] 4 AMR 3274
NUISANCE

• Three categories of persons are potentially liable in private nuisance. They are
creators of the interference, occupiers and landlords.
(b) Occupier-
• (iv) Licensees. In Parimala a/l Muthusamy & Ors v Projek Lebuhraya Utara
Selatan, the defendant was the highway authority responsible for the
construction, maintenance, management and safety of the North-South
Highway. The plaintiffs were travelling in a car driven by the deceased when it
hit a stray cow which had found its way onto the highway through a breach in
the fencing system. The court reiterated the principle that a person can claim in
nuisance if his right of free passage or some rights connected to it have been
interfered with. However, an occupier of land upon which a nuisance has been
created by another person is only liable if he continues the nuisance. The
occupier is deemed to continue a nuisance if with knowledge or presumed
knowledge of its existence, he fails to take any reasonable means to bring it to
an end though with ample time to do so. In this case, the court found that it
could not be ascertained that the defendant knew or could be said to presume
to know that at the relevant time a breach of the offence has occurred, or that a
cow was strolling on the highway.
NUISANCE
•

Three categories of persons are potentially liable in private nuisance. They
are creators of the interference, occupiers and landlords.
(b) Occupier-
• (v) Natural causes (liability for nuisance due to interference caused by acts
of nature shares the same principle as that for interference caused by
trespassers or third parties, in that the occupier will be liable if the
occupier knows or ought to know of the interference. See the case of
Goldman v Hargrave [1967] 1 AC 645- where a tree, a hundred feet high,
on the defendant’s land was struck by lightning and started to burn. The
defendant requested a third party to fell the burning tree and to saw it into
sections, but he did not take any reasonable steps to douse the burning tree
after it was felled and sawn into sections. Due to a strong wind and a rise
in temperature, the fire spread to the plaintiff’s property, causing damage.
The court held the defendant liable as there was proof that damage was
foreseeable as a result of the defendant’s inaction. Thus, an occupier must
take reasonable steps to remedy a potentially hazardous state of affairs,
including those that arise naturally. See also the case of Leakey v National
Trust [1980] 1 All ER 17.
NUISANCE

• Three categories of persons are potentially liable in
private nuisance. They are creators of the interference,
occupiers and landlords.
(b) Occupier-
• (vi) Conduct of previous occupier-If the interference had
existed before the defendant occupier acquired the
property, he will be liable if the plaintiff can prove that he
knows or ought to know of its existence; but not
otherwise. See the case of St Anne’s Well Brewery Co v
Roberto (1928). See also the case of Wilkins v Leighton
[1932] 2 Ch 106.
NUISANCE

(c ) Landlord- Where land is occupied by someone other than the owner, it
is generally the occupier rather than the owner (landlord) who will be
liable for nuisance caused by the occupiers, but there are three
circumstances in which the owners may be held liable: (i) Where a
nuisance already existed when the land was let, and the owners knew
or ought to have known about it. Thus, knowledge of the existence of
the nuisance before the premises is let will make the landlord liable.
This is based on the principle that the creator of the nuisance is liable
even though he does not occupy the land himself. The landlord is also
liable if he ought to have known of the nuisance as the time the
tenancy commenced. This rule does not apply if it is not reasonable
for him to have known of the situation giving rise to an actionable
nuisance.
NUISANCE

• Three categories of persons are potentially liable in private
nuisance. They are creators of the interference, occupiers and
landlords.
(c) Landlord- There are three circumstances in which the owners may
be held liable: (ii) Where the land is let out, but the lease provides
that the landlord has an obligation to repair the premises, or the
right to enter and do repairs. In other words, if has covenanted to
repair or has a right to enter the premises to conduct repair works
he would be held liable. See the case of Wringe v Cohen (1940),
where the defendant owned a shop that was let out to tenants. The
defendant was responsible for keeping the premises repaired, but
failed to do so, and as a result, a wall collapsed and damaged the
neighbouring shop which belonged to the claimant. The defendant
was held liable.
NUISANCE

• Three categories of persons are potentially liable in private nuisance. They
(c) Landlord- There are three circumstances in which the owners may be held
liable: (iii) Where the landlord can be said to have authorised the nuisance.
Where the landlord authorises the nuisance either expressly or impliedly,
he will be held liable (see the case of Hussain v Lancaster City Council
[1999] 4 All ER 125, CA).
• It is important to note that the test is whether the nuisance is something
that is normal and natural as a result of the tenancy or lease. In other
words, the clearest example of authorising a nuisance is where the purpose
for which the tenancy or lease is created is certain to create a nuisance. See
the case of Tetley v Chitty (1986), where the local council allowed a go-
kart club to use their land, and the noise from it disturbed local residents.
The council claimed they were not liable because they had neither created
the noise or permitted it, but the court held that as such noise was an
inevitable result of the activities of a go-kart club, allowing the club to use
the land amounted to permitting the nuisance, and the council were liable.
NUISANCE

(c) Landlord- There are three circumstances in which the owners may be
held liable: (iii) Where the landlord can be said to have authorised the
nuisance.
• Still on the important point raised here, it is vital to note that if the
landlord (owner) has an agreement with the tenant or lessee, and the
tenant or lessee creates nuisance in breach of the agreement, the
landowner will be excluded from liability. See the case of Smith v
Scott [1973] Ch 314. In this case, the defendant local authority had
rented out a house to a family who had some domestic problems. This
family caused a lot of nuisance to the plaintiffs who eventually had to
move from their house. The court found the defendant not liable for
although they were aware of the activities of the tenants, the tenancy
agreement stipulated that tenants could not cause any nuisance to
other people. Furthermore, the nuisance was not as a result of the
tenancy, but due solely to the acts of the tenants themselves.
NUISANCE

• Three categories of persons are potentially liable in private nuisance. They
(c) Landlord- There are three circumstances in which the owners may be held
liable: (iii) Where the landlord can be said to have authorised the nuisance.
• By contrast, in Page Motors Ltd v Epsom & Ewell Borough Council (1982),
it was held that a subjective test ought to be applied to an occupier for the
acts of third parties who were not under his control in that if the occupier
knows that a third party is causing nuisance to others, he must take
reasonable steps to stop the nuisance. In this case, a group of gypsies
occupied the defendant local authority’s land and the defendant was
found liable when the gypsies’ activities caused nuisance to the plaintiff’s
business, as the defendant was aware of the gypsies on its land. In Page
the defendant was an occupier whereas in Smith v Scott the defendant
was the landlord who was not in occupation.
• It is submitted that there should not be any watertight distinction between
the liability of an occupier or a landlord not in occupation especially where
the occupier or landlord knows of the interference.
NUISANCE

Persons who may claim for Public Nuisance :
(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- a person who suffers special or particular damage. An
individual person may institute an action for public nuisance when he
suffers particular damage over and above those suffered by the public. See
the case of Benjamin v Storr (1874), where the claimant kept a coffee house
in the Covent Garden area of London, and the defendant regularly left his
horses and carts outside, obstructing the highway and blocking out light
from all the shops in the row. The nuisance affected all the shopkeepers, but
because of the nature of the claimant’s business he was able to prove that he
had suffered special damage, because the smell of the horses put his
customers off.
• In addition the above, special damage may arise when the nuisance costs
the claimants money, though the general public only suffers inconvenience.
See the case of Tate & Lyle Food and Distribution Ltd v Greater London
Council (1983), the defendant council built some ferry terminals in the River
Thames, which caused excessive silting on the riverbed. This caused
inconvenience to river users in general, but the claimants were more
affected than most as access to their jetty was blocked, and they had to
spend a lot of money having the riverbed around dredged. The House of
Lords held that this amounted to special damages.
NUISANCE

Persons who may claim for Public Nuisance: (Continuation)
(b) Civil proceeding- a person who suffers special or particular damage.
• The following factors may be used as a guide to determine the existence
of special or particular damage: (i) The type or extent of damage is more
serious. In essence the plaintiff must suffer more than what is suffered
by other persons who are exposed to the same interference. Personal
injury or damage to property would fall under ‘special or particular
damage’. (ii) The damage must be a direct consequence and is
substantial (therefore the damage cannot be consequential as in
negligence claims). An example of direct damage is when a plaintiff
suffers breathing problems due to the defendant’s smoke pollution. See
the case of Pacific Engineering v Haji Ahmad Rice Mill [1966] 2 MLJ 142-
the plaintiff was in the business of selling heavy earth-moving
equipment and construction equipment, namely heavy tractors and
industrial forklift trucks. Padi husk from the defendant’s factory would
fly over to the plaintiff’s premises when the defendant burned the padi
husk. The plaintiff’s workers had to cover their mouths and noses to
prevent themselves from inhaling the dust. They had to shut the door
when the wind blew in their direction and machines which were
displayed became dusty very quickly. The plaintiff’s lubricant oil also
became dirty due to the dust from the padi husk.
NUISANCE
Persons who

may claim for Public Nuisance:
(Continuation)
(b) Civil proceeding- a person who suffers special or
particular damage.
• See the case of Pacific Engineering v Haji Ahmad Rice
Mill . The court further held that in an action for
public nuisance, a plaintiff may institute proceedings
without obtaining prior consent from the AG if he has
suffered special damage. In this case, the plaintiffs had
proved that they suffered personal discomfort and
injury to property and thereby satisfying the
requirement of ‘special damage’. An injunction
preventing the defendant from burning rice husks in
the compound of their premises was granted.
NUISANCE

(c) Civil proceeding- no special damage suffered by any particular
individual. In public nuisance, the AG serves as the guardian of
public interest; and this is reflected by sec 8(1) of the Government
Proceedings Act 1956 which provides that the AG can sue in respect
of public nuisance or his prior consent in writing must have been
obtained by two or more persons instituting the suit in public
nuisance for a declaration and injunction or for such other relief as
may be appropriate to the circumstances of the case. This relator
action is available to these two (or more) persons even if they have
not suffered special damage, special damage being extra damage that
is over and above that suffered by other persons in the community.
See the case of Koperasi Pasaraya Malaysia Bhd v Uda Holdings
Sdn Bhd & 41 Ors [2002] 4 AMR 359, where the court held that in a
relator action for public nuisance, consent must first be obtained
from the AG. In this case the action failed as the plaintiff did not
obtain such consent. The court additionally held that in a relator
action brought under sec 8(1) of the Government Proceedings Act
1956, the plaintiff must prove special damage arising from the public
nuisance. (It is respectfully submitted that this is per incuriam as sec
8(1) of the Government Proceedings Act 1956 clearly provides that
the plaintiff need not suffer special damages).
NUISANCE

(c) Civil proceeding- no special damage suffered by any particular
individual.
• Still on the requirement of sec 8(1) of the Government Proceedings
Act 1956, it is important to note that the AG’s consent is not needed if
the claim is brought by a local authority in the public interest. See the
case of MPPP v Boey Siew Than [1979] 2 MLJ 127, FC. In this case,
the plaintiff local authority brought an action for an injunction to
restrain the defendants from using their premises as a restaurant
without having obtained a licence from the plaintiff, and for
damages for public nuisance. At the High Court, it was held that the
plaintiff could not sue the defendants without the written consent of
the AG. On appeal from the plaintiffs, the Federal Court held that
since the plaintiff had commenced its action based on sec 80 of the
Local Government Act 1976 which allowed a local authority to take
action in its own name, it therefore released the local authority from
the obligation stipulated under sec 8(1) of the Government
Proceedings Act 1956. This release was said to be in the interests of
justice and of the proper functioning of the plaintiff as a local
authority.
NUISANCE
Defences: 
(a) Prescription- A defence of prescription is effectively a claim that the
defendant has acquired the right to act in a way that constitutes a private
nuisance because he has done so for 20 years. In other words, a defendant
may be held to have acquired the right to commit a private nuisance by
what is called prescription. This applies where it can be shown that the
nuisance has been actionable for at least 20 years, and that the claimant
was aware of this during the relevant period. The defendant also has to
prove that the interference is something that is done as part of his right on
the plaintiff’s premises, which is usually an easement.
• It is also important to note that the fact that an activity has been carried on
for at least 20 years may not in itself be enough; it must have amounted to
a nuisance for at least that long. See the case of Sturges v Bridgman [1879]
11 Ch D 852, where the defendant was a biscuit manufacturer. His
machines produced a lot of noise and caused vibrations on the plaintiff’s
premises, the defendant’s neighbour. This had occurred for more than 20
years. The plaintiff who was a doctor, then built a treatment room at the
back of his house. The plaintiff claimed for nuisance due to the noise and
vibrations which interfered with the treatment of his patients.
NUISANCE
Defences: (Continuation)

(a) Prescription-
• See the case of Sturges v Bridgman where the court held that the defence of
prescription was inapplicable as before the action was taken the interference
did not constitute a nuisance, as it did not affect the enjoyment the plaintiff had
over his property. An injunction was accordingly issued against the defendant.
• In addressing the issue of prescription as a defence, perhaps it is vital to point
out that in Malaysia an easement is defined under sec 282(1) of the National
Land Code 1965 as any right granted by one proprietor to another for the
beneficial enjoyment of his land. It includes any right to do something in, over
or upon the servient land and any right that something should not be so done
(see sec 283(1)(a) and (b) of the National Land Code 1965). See also sec 284(1)
of the same Act.
• A prescription not related to an easement might still be a good defence. The
facts of each case must be examined in order to determine whether the plaintiff
should no longer be allowed top claim on the grounds that he had allowed the
defendant to continue with the activity for a long period.
• It is important to note that prescription is not a defence in public nuisance.
NUISANCE
Defences: (Continuation) 
(b) Statutory authority -If a statute confers power to the defendant to conduct
a particular activity, the defendant will usually escape liability
notwithstanding that the activity gives rise to an interference. The
defendant must however prove that the interference cannot be avoided
even though reasonable precautionary measures have been taken (see the
case of Goh Chat Ngee & 3 Ors v Toh Yan & Anor [1991] 2 CLJ 1163).
• Thus, it would appear that if the defendant’s conduct was authorised by
statute, it is likely to provide a defence against claims of nuisance. Some
statutes specifically state that they preclude the possibility for action for
nuisance e.g. See the English Civil Aviation Act 1982 provides that a claim
cannot lie in nuisance or trespass in relation to aircraft flying over land.
See also the Malaysian Local Government Act 1976 which provides that a
local authority has the power to make new public places and enlarge such
public places and the owners and occupiers of any land, houses or
buildings which are required for such purposes or which are injuriously
affected will be compensated in accordance with the provisions of any
written law. It is further provided that if the amount of compensation is in
dispute the parties may refer the matter to a court of competent
jurisdiction (see sec 118).
NUISANCE

(c) Ineffective defences- These are frequently raised as arguments that
are ineffectual as defences to nuisance. In other words, there are
circumstances which students often think might provide a defence in
nuisance, which in law do not. They are: (i) Coming to nuisance –
Unless prescription authorises the nuisance, it is no defence to argue
that it has carried on for a long time without attracting complaint.
This is often used in situations when the claimant has actually moved
into the vicinity of a nuisance that was already well established. The
courts have, however, repeatedly rejected this argument, and stated
that the fact that a claimant has voluntarily come into a situation
where a nuisance exists does not provide a defence. Hence, a plea by
the defendant that the plaintiff came to the nuisance, in that the
defendant’s operations has been carried out before the plaintiff
moved into the vicinity is not a good defence. See the case of Miller v
Jackson [1977] 3 All ER 338, where the cricket club argued that in
moving there, when they were aware of the club, the defendants had
‘come to the nuisance’, but a majority of the Court of Appeal held
that this was not a good defence.
NUISANCE
Defences: (Continuation) 
are ineffectual as defences to nuisance. They are: (i) Coming to
nuisance – See also the case of Sturges v Bridgman- where the
defendant had been carrying on a confectionery business that
involved the use of noise equipment that created a strong vibrations
for more than 20 years. The confectioner claimed that the doctor
could be considered to have consented to the noise of his business,
since it was already in existence when the doctor moved in, but the
court held that this was not a defence in private nuisance. (ii) Public
benefit- The purpose of the defendant’s actions is relevant to
determination of its reasonableness and certainly action that is for
the public good is less likely to be considered unreasonable than an
action with a limited range of beneficiaries. This does not mean that
a defendant can cite public benefit as a defence to a nuisance claim.
In other words, it may seem reasonable that an activity which
provides a public benefit should be less vulnerable to nuisance
claims, but this is not the case. See the case of Bellew v Cement Co
Ltd (1948), where Ireland’s only cement factory was forced to close
down for causing a nuisance, even though new building works were
desperately needed at the time.
NUISANCE

(c) Ineffective defences- These are frequently raised as arguments
that are ineffectual as defences to nuisance. They are: (ii) Public
benefit- However, where the nuisance-causing activity has a
public benefit, the courts will often try to strike a balance between
this and the rights of the claimant, by the remedies they choose to
order. Most claimants in nuisance want an injunction, which
orders the defendant to stop the activity which is causing the
nuisance. In cases of public benefit, the courts may refuse an
injunction and order damages instead, or only grant a partial
injunction, so that the activity does not have to stop, but the
interference with claimant’s rights is reduced. See the case of
Adams v Ursell (1913), where a fish shop situated in a residential
street was held to be a nuisance, even though it was accepted that
an injunction forcing it to close would cause hardship to local
customers. In this case the court framed the injunction so as to
allow the shop to be set up in a different part of the street where
the claimant would not be affected by the nuisance.
NUISANCE

are ineffectual as defences to nuisance. They are: (ii) Public benefit-
See also the case of Miller v Jackson (1977), where the claimants
moved into a house beside a cricket club. Cricket balls were
frequently hit into their garden, and they attempted to get an
injunction against the club to stop play. The Court of Appeal agreed
that the cricket club had committed a nuisance, but refused to grant
the injunction that the claimants wanted because the usefulness of
the club to the local community outweighed the claimants’ interest in
preventing cricket balls from being hit into their garden. (iii) Use of
care and skill- This is often wrongly believed to offer a defence in
nuisance. Probably because most students spend the largest part of
their course studying negligence, and because it is usually the first
tort studied, its principles tend to make a big impression, with the
result that students almost instinctively feel that a defendant who
has used care and skill to avoid committing a nuisance should not be
liable if the nuisance happens anyway. This is not precisely the case.
If a defendant’s use of land is unreasonable, and damage to the
claimant’s enjoyment of their own land was the foreseeable result of
that, the fact that they have used care and skill to prevent such
damage is not a defence.
NUISANCE

(c) Ineffective defences- These are frequently raised as
arguments that are ineffectual as defences to nuisance.
They are: (iv) Actions of others- A defendant cannot
argue that his action in isolation would not amount to a
nuisance if he has knowingly taken part in a collective
nuisance, e.g. one performer at an unauthorised festival
that disrupts local residents.
(d) Other defences- The defences of necessity, consent or
defence of property may be valid defences. Contributory
negligence is also a valid defence applicable to nuisances
based on negligent conduct.
NUISANCE
Remedies: 
(1) Injunction- It is the main remedy for nuisance, and aims to make the
defendant stop the activity which is causing the nuisance. An injunction
may be perpetual, which orders the activity to stop completely, or it may
be partial, and, for example, simply limit the times at which the activity
can be performed. As it is a discretionary remedy, an injunction may be
refused even though nuisance is proved. See the case of Kennaway v
Thompson (1980) illustrating the operation of a partial injunction. In this
case, the claimant owned land near Lake Windermere. A motor-boat club
had been organising boat races and water-skiing on the lake for several
years, and the claimant was aware of this when she started building a
house on her land, but believed she would not be disturbed by the noise.
However, by the time the house was finished, the club had expanded, and
was holding more frequent meetings, involving more powerful and noisier
boats. It even began running big national and international competitions.
The claimant sought an injunction to restrain the club from causing or
permitting excessive noise to come onto her land. The motor-boat club
argued that there was a public interest in the facilities of both racing and
observing the sport being made available to large number of people.
NUISANCE
(1)
Remedies: (Continuation) 
Injunction- See the case of Kennaway v Thompson (1980). The Court of
Appeal held that the claimant was entitled to an injunction restraining the
club from carrying on those activities which caused a nuisance to her in
the enjoyment and use of her land, despite the public interest in those
activities. However, they framed the injunction so that it limited, rather
than completely stopped the club’s activities.
(2) Damages- Damages can be recovered for the damage to the claimant’s
land, or enjoyment of it, and also for injury to the claimant which is
associated with loss of enjoyment, such as loss of sleep, or discomfort
caused by noise or smell. Thus, damages are available to compensate a
claimant for physical damage to his land and in relation to personal
discomfort and inconvenience.
(3) Abatement or self-help- This remedy involves the removal of the nuisance
by the claimant. In other words, the claimant rectifies the nuisance
himself. The remedy allows the claimant to take steps to end the nuisance,
for example by trimming back overhanging foliage. Where the claimant
needs to enter the defendant’s land for this purpose, notice must be given;
if it is not, the abator will become a trespasser.

Differences: Private Nuisance Public Nuisance

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Differences: Private Nuisance Public Nuisance

Uploaded by

Copyright:

Available Formats

Differences

Private Nuisance Public Nuisance

i) affects an individual’s rights to

iv) the plaintiff must prove

vi) There are two requirements

vi) in a public nuisance it is vital

vii) Prescription is a defence in vii) Prescription is not a defence

You might also like