Private nuisance 

Private nuisance protects the use and enjoyment of land rather than the person. Where negligence asks whether a defendant fell below a standard of care, nuisance asks a different question: has the claimant's use of their land been interfered with substantially and unreasonably? That difference in focus determines who may sue, what must be proved, and which remedy a court is likely to grant.

Who may sue, and what is protected

A claimant must have an interest in the land affected. A freeholder or a tenant in possession can sue; a family member, guest or licensee without possessory rights generally cannot, a limitation confirmed in Australia in Oldham v Lawson (No 1) [1976] VR 654.⁴ The tort is proprietary in character, and this is the clearest structural difference from negligence, which asks only whether the defendant owed this claimant a duty.

The interference itself takes three broad forms: physical damage to the land, interference with the claimant's comfort and convenience in using it, and encroachment. The second category — noise, smell, smoke, vibration, light — generates most of the case law, because it is there that the line between an inconvenience of ordinary life and an actionable wrong must be drawn.

What makes an interference unreasonable

Not every interference is actionable. The law tolerates the ordinary give and take of neighbouring occupation, and asks whether the interference was substantial and unreasonable judged objectively, not by the claimant's own sensitivity. Several factors are weighed together:

• Locality. What is reasonable in an industrial area differs from what is reasonable in a residential street.
• Duration, frequency and timing. A single brief event is rarely enough; persistent night-time noise often is. In Munro v Southern Dairies [1955] VLR 332 the noise and smell of horses at a dairy were actionable in large part because they disturbed sleep.¹
• Sensitivity. A claimant put to unusual loss because of an abnormally delicate use of their land cannot recover for that extra sensitivity alone.
• Malice. Conduct done deliberately to annoy is more readily found unreasonable.
• Utility of the defendant's conduct. Social usefulness is relevant, but it is not a defence: a useful activity conducted unreasonably remains a nuisance.

Locality carries much less weight where the interference has caused physical damage to the land. That distinction, drawn in St Helen's Smelting Co v Tipping (1865) 11 HLC 642 and applied in Australia since, means a defendant cannot answer a claim for damaged crops or corroded paintwork by pointing to the industrial character of the district.²

Who is liable

The creator of the nuisance is liable. So too, importantly, is an occupier who adopts or continues a nuisance created by someone else — a predecessor, a trespasser, or an act of nature — once they know or ought to know of it and fail to take reasonable steps to abate it (Sedleigh-Denfield v O'Callaghan [1940] AC 880).³ This is how liability attaches to a landowner who inherits a deteriorating retaining wall or a blocked drain, and it is frequently the point on which a problem question turns.

Fault is not required in the negligence sense, but the tort is not one of strict liability either: the kind of harm must have been reasonably foreseeable. A defendant is not liable for an entirely unforeseeable consequence of an otherwise lawful use.

Defences, and what does not work

Statutory authority is the most substantial defence: where legislation authorises the very activity complained of, and the nuisance is an inevitable consequence of carrying it out, no action lies. The question is always one of statutory construction — whether the legislature authorised the activity, or merely permitted it subject to the general law.

Prescription may confer a right to continue a nuisance after twenty years, though it is rarely established, because time runs only from when the interference became actionable against that claimant. Consent and, in most jurisdictions, statutory contributory negligence provisions may also apply.

Two arguments that consistently fail deserve attention, because students reach for both. That the claimant came to the nuisance — moved in knowing of the existing activity — is not a defence. Nor is public benefit: that many people gain from the defendant's activity may affect the remedy granted, but it does not answer liability.

Remedies, and the choice between them

Damages compensate for the diminution in the land's value or amenity, and for consequential loss. Where the interference is continuing, an injunction is the characteristic remedy, and Australian courts have been readier to grant one than to award damages in substitution — the reasoning being that a defendant should not be able to purchase the right to continue a wrong. Self-help abatement exists but is narrow and carries real risk; it is rarely the advice to give.

Distinguish public nuisance, which affects a class of the public rather than a particular occupier's land. An individual may sue in public nuisance only by proving special damage over and above that suffered by the public generally.

Applying this in a problem question

1. Identify the claimant's interest in the affected land — without a possessory interest the claim fails at the threshold, whatever the merits of the complaint.
2. Characterise the interference: physical damage, or interference with comfort and convenience? If physical damage, discount locality accordingly.
3. Work through the unreasonableness factors together rather than serially, and state which carry most weight on these facts and why.
4. Identify the defendant precisely — creator, or occupier who adopted or continued a nuisance they knew or ought to have known about?
5. Address statutory authority if any legislation touches the activity, and dispose expressly of "came to the nuisance" and public benefit if the facts invite them.
6. Select the remedy, and say why an injunction is or is not appropriate rather than assuming damages.

Self-check

• Have I confirmed the claimant holds an interest in land, rather than merely occupying it?
• Have I kept locality out of the analysis where the harm is physical damage?
• Have I considered whether an occupier adopted or continued a nuisance they did not create?
• Have I stated why the remedy I chose fits, instead of defaulting to damages?