Chapter II - Nuisance

Law of Torts, MV Accident and Consumer
Protection Laws II
Interference with Immoveable Property: Nuisance
Copyright: Dr C J Rawandale, SLS

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Introduction
o  The word nuisance is derived from the French word nuire , which means
to do hurt, or to annoy .
o  One in possession of a property is entitled as per law to undisturbed

enjoyment of it.
o  If someone else s improper use in his property results into an unlawful

interference with his use or enjoyment of that property or of some right over,
or in connection with it, we may say that tort of nuisance occurred.

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o  In other words, Nuisance is an unlawful interference with a person s use or
enjoyment of land, or of some right over, or in connection with it.
o  Nuisance is an injury to the right of a person in possession of a property to

undisturbed enjoyment of it and result from an improper use by another
person in his property.

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o  Stephen defined nuisance to be anything done to the hurt or annoyance of
the lands, tenements of another, and not amounting to a trespass.
o  According to Salmond, the wrong of nuisance consists in causing or

allowing without lawful justification the escape of any deleterious thing from
his land or from elsewhere into land in possession of the plaintiff, e.g. water,
smoke, fumes, gas, noise, heat, vibration, electricity, disease, germs,
animals .

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o  Noise Pollution (V), In re, (2005) 5 SCC 733
o  Quietness and freedom from noise are indispensable to the full and free
enjoyment of a dwelling house. No proprietor has an absolute right to create
noises upon his own land, because any right which the law gives is qualified
by the condition that it must not be exercised to the nuisance of his
neighbours or of the public. Any noise which has the effect of materially
interfering with the ordinary comforts of life, judged by the standard of
a reasonable man is nuisance.
o  How and when a nuisance created by noise becomes actionable has to be
answered by reference to its degree and the surrounding circumstances, the
place and the time. Noise will create an actionable nuisance only if it
materially interferes with the ordinary comfort of life, judged by
ordinary, plain and simple notions, and having regard to the locality:
the question being one of degree in each case.

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Distinction Between Nuisance and Trespass
o  1. Trespass is direct physical interference with the plaintiff s possession of

land through some material or tangible object.
o  Nuisance is an injury to some right accessory to possession but no

possession itself.
o  Illustration:
o  A right of way or light is an incorporeal right over property not amounting to

possession of it, and disturbance of it is a nuisance and not trespass.

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o  2. Trespass is actionable per se, while nuisance is actionable only on
proof of actual damage. It means trespass and nuisance are mutually
exclusive.
o  Simple entry on another s property without causing him any other injury
would be trespass. In nuisance injury to the property of another or
interference with his personal comfort or enjoyment of property is necessary.
o  They may overlap when the injury is to possessory as well as to some right
necessary to possession.
o  Illustration:
o  Trespass of cattle discharge of noxious matter into a stream and ultimately

on another s land.

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o  3. To cause a material and tangible loss to an object or to enter another
person s land is trespass and not nuisance; but where the thing is not
material and tangible or where though material and tangible, it is not direct
act of the defendant but merely consequential on his act, the injury is not
trespass but merely a nuisance actionable on proof of actual damage.
o  If interference is direct, the wrong is trespass, if it is consequential, it

amounts to nuisance.
o  Illustration:
o  Planting a tree on another s land is trespass, whereas when one plants a

tree over his own land and the roots or branches project into or over the land
of another person, it is nuisance.

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Essentials of Nuisance
o  In order that nuisance is actionable tort, it is essential that there should exist:
o  1. wrongful act/s;
o  2. damage or loss or inconvenience or annoyance caused to another.

Inconvenience or discomfort to be considered must be more than mere
delicacy or fastidious and more than producing sensitive personal discomfort
or annoyance. Such annoyance or discomfort or inconvenience must be
such which the law considers as substantial or material.

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o  Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13
o  The plaintiffs -appellants sued the defendants-respondents for a permanent

injunction to restrain them from exhibiting the film Jai Santoshi Maa . It was
contended that exhibition of the film was a nuisance because the plaintiff s
religious feelings were hurt as Goddesses Saraswati, Laxmi and Parvati
were defined as jealous and were ridiculed.
o  It was held that hurt to religious feelings was not an actionable wrong.
Moreover the plaintiff s were free not to see the movie again.

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o  Halsey v. Esso Petroleum Co. Ltd. (1961) 2 All ER 145
o  The defendant s depot dealt with fuel oil in its light from the chimneys
projected from the boiler house, acid smuts containing sulphate were emitted
and were visible falling outside the plaintiff s house. There was proof that
the smuts had damaged clothes hung out to dry in the garden of the
plaintiff s house and also paint work of the plaintiff s car which he kept on
the highway outside the door of his house. The depot emanated a pungent
and nauseating smell of oil which went beyond a background smell and was
more than would affect a sensitive person but the plaintiff had not suffered
any injury in health from the smell. During the night there was noise from the
boilers which at its peak caused window and doors in the plaintiff s house to
vibrate and prevented the plaintiff s sleeping. An action was brought by the
plaintiff for nuisance by acid smuts, smell and noise.
o  The defendants were held liable to the plaintiff in respect of emission of acid
smuts, noise or smell.

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Kinds of Nuisance
o  Nuisance is of two kinds:
o  A. Public (General or Common) Nuisance;
o  B. Private Nuisance

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A. Public Nuisance
o  Under Section 3 (48) of the General Clauses Act, 1897, the words mean a
public nuisance defined by the Indian Penal Code.
o  Section 268 of the Indian Penal Code, defines it as an act or illegal

omission which causes any common injury, danger or annoyance, to the
people in general who dwell, or occupy property, in the vicinity, or which
must necessarily cause injury, obstruction, danger or annoyance to persons
who may have occasion to use any public right.

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o  Simply speaking, public nuisance is an act affecting the public at large, or
some considerable portion of it; and it must interfere with rights which
members of the community might otherwise enjoy.
o  Thus acts which seriously interfere with the health, safety, comfort or
convenience of the public generally or which tend to degrade public morals
have always been considered public nuisance.

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o  Carrying on trade which cause offensive smells, Malton Board of Health
v. Malton Manure Co., (1879) 4 Ex D 302;
o  Carrying on trade which cause intolerable noises, Lambton v. Mellish,

(1894) 3 Ch 163;
o  Keeping an inflammable substance like gunpowder in large quantities,

Lister s case, (1856) 1 D & B 118;
o  Drawing water in a can from a filthy source, Attorney General v. Hornby,

(1806) 7 East 195

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o  Organizing a pop festival, which caused noise and a large amount of
traffic (Attorney General of Ontario v. Orange, (1971) 21 DLR 257);
o  Blocking a canal (Rose v. Miles (1815) 4 M & S 101);
o  Queuing on a highway, so causing an obstruction (Lyons v. Gulliver

(1914) 1 Ch 631),
o  Picketing on a highway (Thomas v. NUM (South Wales Area) (1985) 2 All

ER 1),
o  Interference with navigation rights in the River Thames (Tate and Lyle
Industries v. GLC (1983) 1 All ER 1159)

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o  Public nuisance can only be subject of one action, otherwise a party might
be ruined by a million suits. Further, it would give rise to multiplicity of
litigation resulting in burdening the judicial system.
o  Generally speaking, Public Nuisance is not a tort and thus does not give rise
to civil action.

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o  In the following circumstances, an individual may have a private right of
action in respect a public nuisance.
o  1. He must show a particular injury to himself beyond that which is suffered

by the rest of public i.e. he must show that he has suffered some damage
more than what the general body of the public had to suffer.
o  2. Such injury must be direct, not a mere consequential injury; as, where one
is obstructed, but another is left open.
o  3. The injury must be shown to be of a substantial character, not fleeting or

evanescent.

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o  Solatu v. De Held, (1851) 2 Sim NS 133
o  The plaintiff resided in a house next to a Roman Catholic Chapel of which

the defendant was the priest and the chapel bel was rung at all hours of the
day and night. It was held that the ringing was a public nuisance and the
plaintiff was held entitled to an injunction.

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o  Leanse v. Egerton, (1943) 1 KB 323
o  The plaintiff, while walking on the highway was injured on a Tuesday by

glass falling from a window in an unoccupied house belonging to the
defendant, the window having been broken in an air raid during the previous
Friday night. Owing to the fact that the offices of the defendant s agents
were shut on the Saturday and the Sunday and to the difficulty of getting
labour during the week end, no steps to remedy the risk to passers by had
been taken until the Monday. The owner had no actual knowledge of the
state of the premises.
o  It was held that the defendant must be presumed to have knowledge of the
existence of the nuisance, that he had failed to take reasonable steps to
bring it to an end although he had ample time to do so, and that, therefore,
he had continued it and was liable to the plaintiff.

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o  Attorney General v. P.Y.A. Quarries, (1957)1 All ER 894
o  In an action at the instance of the Attorney General, it was held that the
nuisance form vibration causing personal discomfort was sufficiently
widespread to amount to a public nuisance and that injunction was rightly
granted against the quarry owners restraining them from carrying on their
operations.

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Without Proving Special Damage
o  In India under Section 91 of the Civil Procedure Code, allows civil action
without the proof of special damage. It reads as follows:
o  S. 91. [(1) In the case of a public nuisance or other wrongful act affecting,
or likely to affect, the public, a suit for a declaration and injunction or for such
other relief as may be appropriate in the circumstances of the case, may be
instituted-
o  by the Advocate General, or
o  with the leave of the court, by two or more persons, even though no special
damage has been caused to such persons by reason of such public
nuisance or other wrongful act.]
o  (2) Nothing in this section shall be deemed to limit or otherwise affect any
right of suit which may exist independently of its provisions.

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o  Thus a suit in respect of a public nuisance may be instituted by any one of
the followings:
o  By the Advocate-General acting ex officio; or
o  By him at the instance of two or more persons or
o  by two or more persons with the leave of the Court.

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B. Private Nuisance
o  Private nuisance is the using or authorising the use of one s property, or of

anything under one s control, so as to injuriously affect an owner or occupier
of property by physically injuring his property or affecting its enjoyment by
interfering materially with his health, comfort or convenience.
o  In contrast to public nuisance, private nuisance is an act affecting some

particular individual or individuals as distinguished from the public at
large.
o  The remedy in an action for private nuisance is a civil action for damages or
an injunction or both and not an indictment.

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Elements of Private Nuisance
o  Private nuisance is an unlawful interference and/or annoyance which cause

damages to an occupier or owner of land in respect of his enjoyment of the
land.
o  Thus the elements of private nuisance are:
o  1. unreasonable or unlawful interference;
o  2. such interference is with the use or enjoyment of land, or some right over,
or in connection with the land; and
o  3. damage.

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o  Nuisance may be with respect to property or personal physical
discomfort.
o  1. Injury to property
In the case of damage to property any sensible injury will be sufficient to

support an action.
o  St. Helen Smelting Co. v. Tipping, (1865) 77 HCL 642
The fumes from the defendant s manufacturing work damaged plaintiff s

trees and shrubs. The Court held that such damages being an injury to
property gave rise to a cause of action.

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o  Ram Raj Singh v. Babulal, AIR 1982 All. 285
o  The plaintiff, a doctor, complained that sufficient quantity of dust created by

the defendant s brick powdering mill, enters the consultation room and
causes discomfort and inconvenience to the plaintiff and his patients.
o  The Court held that when it is established that sufficient quantity of dust from
brick powdering mill set up near a doctor s consulting room entered that
room and a visible thin red coating on clothes resulted and also that the dust
is a public hazard bound to injure the health of persons, it is clear the doctor
has proved damage particular to himself. That means he proved special
damage.

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o  Hollywood Silver Fox Farm Ltd v Emmett, (1936) 2 KB 468
A carried on the business of breeding silver foxes on his land. During the
breeding season the vixens are very nervous and liable if disturbed, either to
refuse to breed, or to miscarry or to kill their young. B, an adjoining
landowner, maliciously caused his son to discharge guns on his own land as
near as possible to the breeding pens for the purpose of disturbing A s
vixens.
A filed a suit for injunction against B and was successful.

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o  Dilaware Ltd. v. Westminister City Council, (2001) 4 All ER 737 (HL)
o  The respondent was owner of a tree growing in the footpath of a highway.

The roots of the tree caused cracks in the neighbouring building. The
transfree of the building, after the cracks were detected, was held entitled to
recover reasonable remedial expenditure in respect of the entire damage
from the continuing nuisance caused by the trees.

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o  Khan v Harrow [2013] 34 P.L.B. 36
o  It is essential that the owner of the land on which the offending tree is
planted is aware of the possible problem. All landowners are taken to
know of potential damage from tree roots and have a duty to take
appropriate action.
o  Homeowners were entitled to recover the cost of remedial works and

loss adjuster's fees, together with general damages for distress and
inconvenience, for damage to their property from subsidence caused by
tree roots from a neighbour's Cypress hedge since the risk of such
damage was reasonably foreseeable.

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o  Robbins v Bexley BC [2013] EWCA Civ 1233; [2013] P.L.S.C.S. 244
o  A landowner’s buildings suffered damages in 2003 and 2006 by incursion of

tree roots from the adjoining local authority park. The authority was on notice
of the potential damage as a neighbour had made a claim in 1996 and the
authority had carried out tree reduction works in 1998. The authority planned
a four-yearly programme of reduction in the crowns of the offending poplar
trees but failed to implement it. The authority claimed that even if it had been
implemented it would not have successfully prevented the roots damaging
the property owner’s building.
o  The Court of Appeal held this was not the relevant test. The authority’s duty
was to implement (and where appropriate monitor) a programme that would
prevent incursion. As they had failed, they were liable.

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o  Northumbrian Water Ltd v Sir Robert McAlpine Ltd, [2013] EWHC 1940
(TCC); [2013] C.I.L.L. 3408
o  Defendant had developed a construction site close to a sewer operated by

Plaintiff. Defendant's sub-contractor carried out piling works. Some of the
concrete poured to create a particular pile escaped and further concrete was
poured. Unknown to Plaintiff and Defendant, there was a private drain near
the pile connecting to the sewer. Days after the piling, sewage began
backing up into nearby commercial premises. Plaintiff discovered concrete in
its sewer. It claimed the costs of removing the concrete.

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o  The Technology and Construction Court held that ‘A construction company
was not liable to a sewerage undertaker in either negligence or nuisance
after concrete had escaped from its construction site through an
undiscovered private drain into a public sewer’.
o  It further held that ‘the rule in Rylands v Fletcher was a subspecies of the law
of nuisance and that in order to establish strict liability under the rule, the
claimant had to establish that the thing the defendant had brought onto his
land was something which would naturally do mischief if it escaped or was
dangerous’.

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o  2. Physical discomfort
o  In case of physical discomfort there are two essential conditions to be

fulfilled:
o  In excess of the natural and ordinary course of enjoyment of the property i.e.
to say the interference must be with the enjoyment or use of land
o  Materially interfering with the ordinary comfort of human existence.

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o  Salmond & Heuston on the Law of Torts, Twentieth Edition of the chapter on
nuisance in the paragraph sub-titled Give and take sets out legal principle of
balancing rights as follows: -
o  ‘If the defendant has created a nuisance, it is actionable; but the

reasonableness, of his conduct is relevant in determining whether he has in
truth created a nuisance. For a balance has to be maintained between the
right of the occupier to do what he likes with his own, and the right of his
neighbour not to be interfered with. In this context reasonableness is a two-
sided affair: it is not enough to ask if the defendant has acted reasonably it
must be asked if he has acted reasonably having regard to the fact that he
has a neighbour’.

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o  a. In excess of the natural and ordinary course of enjoyment of the
property –
o  In order to be able to bring an action for nuisance to property the person

injured must have either a proprietary or possessory interest in the premises
affected by the nuisance.

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o  b. Materially interfering with the ordinary comfort of human existence
o  The discomfort should be such as an ordinary or average person in the

locality and environment would not put up with or tolerate. Following
factors are material in deciding whether the discomfort is substantial:
o  its degree or intensity;

o  its duration;
o  its locality;
o  the mode of user of the property.

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o  Broadbent v. Imperial Gas Co. (1856) 7 De GM & G 436
o  An injunction was granted to prevent a gas company from manufacturing gas

in such a close proximity to the premises of the plaintiff, a market gardener,
and in such a manner as to injure his garden produce by the escape of
noxious matter.

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o  Shots Iron Co. v. Inglis, (1882) 7 App Cas 518
o  An injunction was granted to prevent a company from carrying on calcining

operations in any manner whereby noxious vapours would be discharged, on
the pursuer s land, so as to do damage to his plantations or estate.
o  Sanders Clark v. Grosvenor mansions Co. (1900) 16 TLR 428
o  An injunction was granted to prevent a person from turning a floor

underneath a residential flat into a restaurant and thereby causing a
nuisance by heat and smell to the occupier of the flat.

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o  Datta Mal Chiranji Lal v. Lodh Prasad, AIR 1960 All 632
o  The defendant established an electric flour mill adjacent to the plaintiff s

house in a bazaar locality and the running of the mill produced such noise
and vibrations that the plaintiff and his family, did not get peace and freedom
from noise to follow their normal avocations during the day. They did not
have a quiet rest at night also.
o  It was held that the running of the mill amounted to a private nuisance which
should not be permitted.

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o  Kuldip Singh v. Subhash Chander Jain, (2000) 4 SCC 50
o  The appellant-defendant constructed a bhatti (baking oven) in his premises.
He also moved an application to the Municipal Corporation of Ludhiana
seeking grant of licence to run the bakery. The plaintiff-respondents filed a
suit seeking an injunction against the Municipal Corporation restraining it
from issuing the license sought for by the appellant. During the pendency of
the suit the license under Section 342 of the Punjab Municipal Corporation
Act, 1976, was granted by the Municipal Corporation to the appellant.
o  The trial court dismissed the suit against the Municipal Corporation forming
an opinion that the Municipal Corporation could not be restrained by the civil
court from exercising a statutory power by issuing an injunction.
o  The plaintiffs preferred second appeal before the Supreme Court which
made an observation that the bhatti would emit smoke, heat and smell which
were a nuisance to the residents of the locality.

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o  Palmar v. Loder, (1962) CLY 2233
o  In this case, perpetual injunction was granted to restrain defendant from

interfering with plaintiff s enjoyment of her flat by shouting, banging,
laughing, ringing doorbells or otherwise behaving so as to cause a nuisance
by noise to her.

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o  Radhey Shiam v. Gur Prasad Sharma, AIR 1978 All 86
o  It was held by the Allahabad High Court a permanent injunction may be

issued against the defendant if in a noisy locality there is substantial addition
to the noise by introducing flour mill materially affecting the physical comfort
of the plaintiff.

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o  Sturges v. Bridgman, (1879) 11 Ch D 852
o  A confectioner had for upwards of twenty years used, for the purpose of his
business, a pestle and mortar in his back premises, which abutted on the
garden of a physician, and the noise and vibration were not felt to be a
nuisance or complained of until 1873, when the physician erected a
consulting room at the end of his garden, and then the noise and vibration,
owing to the increased proximity, became a nuisance to him.

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o  The question for the consideration of the Court was whether the confectioner
had obtained a prescriptive right to make the noise in question.
o  It was held that he had not, inasmuch as the user was not physically capable
of prevention by the owner of the servient tenement, and was not actionable
until the date when it became by reason of the increased proximity a
nuisance in law, and under these conditions, as the latter had no power of
prevention, there was no prescription by the consent or acquiescence of the
owner of the servient tenement.

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´
o  Miller v. Jackson, (1977) 3 WLR 20
o  The Court of Appeal held that the playing of cricket on a particular ground
had been for many years a benefit to the whole community but that, since
the construction of houses close to the cricket ground, it had become a
nuisance because the interference with the use and enjoyment of the
adjoining properties was substantial.

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o  Goode v. Owen, (2001) EWCA Civ 2101:
o  The Court of Appeal held that golf balls falling from a driving range onto the
claimant's agricultural land constituted a nuisance.

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o  British Celanese v. Hunt (Capacitators) Ltd. (1969) 2 All ER 749
o  Foil had blown from the defendant's land where it was stored and had
damaged an electricity substation, causing the electricity to a small industrial
estate to be cut off. The same problem had occurred once a few years
previously and had arisen because of the way in which the material was
stored on the defendant's property. The Court held that it was an act of
private nuisance.

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o  Video London Sound Studio Ltd. v. Asticus (GMS) Ltd. And Keltbray Demolition
Ltd. (2001) All ER (D) 168
o  Keltbray were demolition contractors who were demolishing buildings on Asticus site.
The work displaced some rubble in Video London's chimney which fell into their
property and damaged some expensive recording equipment. The appointed surveyors
made an addendum award requiring Asticus to reimburse the cost of this under the
1939 Act's making good provisions. Asticus failed to pay. Video London therefore
brought proceedings in nuisance, negligence and for a breach of the award.
o  As Video London had suffered physical damage it was no defence that the works had
been undertaken with reasonable care and caution. The kind of damage which
occurred was reasonably foreseeable. This was sufficient, even if the precise
mechanism by which it occurred could not have been foreseen.

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o  Farhd K. Wadia v Union Of India, (2009) 2 SCC 442
o  Dr. Yeshwant Trimbak Oke filed public interest litigation before Bombay High
Court for a direction to the State to curb noise pollution in general in the city
of Mumbai and particularly during the festive season of Navratri and Ganesh
Utsav. Bombay High Court in its 2003 ordered that ‘no loudspeaker
permission be granted in respect of "Silence Zone" as defined and discussed
in the Noise Pollution (Regulation & Control) Rules, 2000, as amended from
time to time and in case of any violation required action be taken.
o  Against this order, State of Maharashtra filed review petition, which was
more or less decided on the same line.

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o  While the said order was operating, the appellant’s application to book the Rang
Bhavan in regard to performance of Western Culture Music We in 2004 was
rejected by State saying that –
o  ‘By the order of the Hon'ble High Court, Mumbai, dated 25/09/2003 under the
Noise Pollution (Control & Regulation) Rules 2000, the use of loudspeakers in a
silence zone has been banned. Also the Senior Inspector of Police, Azad
Maidan Police Station, Mumbai has in accordance with the direction of the
Hon'ble High Court, informed in writing that the use of loudspeakers during
cultural programmes at Rangbhavan will not be permitted’.
o  Contending that the said Rang Bhavan had been lying closed for the past few
years and the directions issued by the High Court are not in consonance with the
Rules governing noise pollution framed by the State of Maharashtra, a writ
petition was filed by the appellant herein. It was furthermore pointed out that
some educational institutions and hospitals have also been using loud speakers.

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o  The question before the Supreme Court was whether musical functions in an
open theatre being Rang Bhavan should be allowed to be carried on or not
despite the fact that it is situated within 100 meters of an educational institution
and a hospital and whether the Noise Pollution (Regulation & Control) Rules,
2000 are in consonance with law.
o  It was held that interference by the court in respect of noise pollution is

premised on the basis that a citizen has certain rights being 'necessity of
silence', 'necessity of sleep', 'process during sleep' and 'rest', which are
biological necessities and essential for health and considered to be one of the
human rights as noise is injurious to human health which is required to be
preserved at any cost.
o  Further, State Government is bound by the order of Supreme Court besides the
order passed by the High Court as the rules are in consonance with law.

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o  Anand S/o Bhimrao Salvi and another v State of Maharashtra, through
Secretary Environment Protection Department, 2010 Indlaw MUM 476
o  The Petitioner prayed for direction against the organizers of the Aurangabad Premier
League who have had held cricket tournament at ADCC Stadium on a large scale
situated at N-2, CIDCO, Aurangabad and caused harm by creating noise pollution,
by using high volume sound systems during the whole day when the tournament was
in progress; to stop the high volume sound system used during the matches
conducted for the purpose of APL Tournament; and to shift the ongoing event to any
other stadium.
o  The Court held that ‘The human life has its charm and there is no reason why the life
should not be enjoyed along with all permissible pleasures…anyone who wishes to
live in peace, comfort and quiet within his house has a right to prevent the noise as
pollutant reaching him. No one can claim a right to create noise even in his own
premises, which would travel beyond his precincts and cause nuisance to neighbors
or others’.
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o  It further observed that ‘any noise, which has the effect of materially
interfering with the ordinary comforts of life judged by the standard of a
reasonable man is nuisance…nobody can claim a fundamental right to create
noise by amplifying the sound of his speech with the help of loudspeakers.
While one has a right to speech, others have a right to listen or decline to listen.
Nobody can be compelled to listen and nobody can claim that he has a right to
make his voice trespass into the ears or mind of others. Nobody can indulge
into aural aggression. If anyone increases his volume of speech and that
too with the assistance of artificial devices so as to compulsorily expose
unwilling persons to hear a noise raised to unpleasant or obnoxious
levels then the person speaking is violating the right of others to a
peaceful, comfortable and pollution-free life guaranteed by Article 21’.

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o  The Court directed for an action under the Environment (Protection) Act, 1986
and/or the Rules of 2000 and/or under section 268, 290, 291 of
Indian Penal Code, as consequences of breach on account of using music
sound system and public address system during the APL Tournament without
valid permission and also on account of exceeding the permissible noise level
limits during the said tournament on several occasions.

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o  Remedy:
o  The remedy in an action for private nuisance is a civil action for damages or
an injunction or both and not an indictment.

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Defences
o  Following are the valid defences to an action for nuisance:
o  Grant
o  Prescription
o  Statutory Authority

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o  a. Grant
o  It is a valid defence to an action for nuisance that the said nuisance is under
the terms of a grant.

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o  b. Prescription
o  A title acquired by use and time, and allowed by Law; as when a man claims
any thing, because he, his ancestors, or they whose estate he hath, have
had possession for the period prescribed by law. [Section 26, Limitation
Act; Section 15 Easements Act]
o  Three things are necessary to establish a right by prescription:
o  Use and occupation or enjoyment;

o  the identity of the thing enjoyed;
o  that it should be adverse to the rights of some other person.

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o  A special defence available in the case of nuisance is prescription if it has
been peaceable and openly enjoyed as an easement and as of right without
interruption and for twenty years.
o  After a nuisance has been continuously its existence for twenty years
prescriptive right to continue it is acquired as an easement appurtenant to
the land on which it exists.
o  On the expiration of this period the nuisance becomes legalised ab initio, as

if it had been authorised in its commencement by a grant from the owner of
servient land.

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o  The time runs, not from the day when the cause of the nuisance began but
from the day when the nuisance began.
o  The easement can be acquired only against specific property, not

against the entire world.

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o  Elliotson v. Feetham, (1835) 2 Bing NC 134
o  A prescriptive right to the exercise of a noisome trade on a particular spot

may be established by showing twenty years user by the defendant.

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o  Goldsmid v. Turubridge Wells Improvement Commissioners, (1865) LR
1 Eq 161
o  It was held that no prescriptive right could be obtained to discharge sewage

into a stream passing through plaintiff s land and feeding a lake therein
perceptibly increasing quantity.

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o  Mohini Mohan v. Kashinath Roy, (1909) 13 CWN 1002
o  No right to hold kirtan upon another s land can be acquired as an easement.

Such a right may be acquired by custom.

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o  Sturges v. Bridgman, (1879) 11 Ch.D. 852
o  A had used a certain heavy machinery for his business, for more than 20
years. B, a physician neighbour, constructed a consulting room adjoining
A s house only shortly before the present action and then found himself
seriously inconvenienced by the noise of A s machinery.
o  B brought an action against A for abatement of the nuisance. It was held that
B must succeed. A cannot plead prescription since time runs not from the
date when the cause of the nuisance began but from the day when the
nuisance began.

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o  Miller v. Jackson, (1977)
o  The argument favoured by Lord Denning that the claimant's who had bought
property near a place where they knew that cricket had been played for
many years had no right to complain of the nuisance it caused, was rejected
by the Court of Appeal, as it is not a defence to argue that the claimant's
'came to the nuisance'.

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o  c. Statutory Authority
o  Where a statute has authorised the doing of a particular act or the use of
land in a particular way, all remedies whether by way of indictment or action,
are taken away; provided that every reasonable precaution consistent with
the exercise of the statutory powers has been taken.

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o  Statutory authority may be either absolute or conditional.
o  In case of absolute authority, the statute allows the act notwithstanding the
fact that it must necessarily cause a nuisance or any other form of injury.
o  In case of conditional authority the State allows the act to be done only if it
can be without causing nuisance or any other form of injury, and thus it calls
for the exercise of due care and caution and due regard for private rights.

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o  Vaughan v. Taff Vale Rly, (1860) 5 H.N. 679
o  The defendants who had authority by Statute to locomotive engines on their

railway, were held not liable for a fire caused by the escape of sparks.

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o  Metropolitan Asylum District Board v. Hill, (1881) 6 AC 193 (HL)
o  An action for nuisance was brought by the owners of land adjacent to a

smallpox hospital in Hampstead against the management of the hospital. It
was argued that Smallpox hospital was a nuisance per se because, even if
the hospital had been managed with due care, the disease of those within
would escape to infect those living in the vicinity. The Court ordered in favour
of the owners of land.

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o  Smeaton v. Ilford Corporation, (1954) 1 Ch 450
o  Sewers became overloaded due to the fact that many new houses were
being connected to the existing system.
o  Upjohn J. held that the Corporation could rely on the defence of statutory
authority in that the local authority had no power to refuse the connection of
more houses to the sewer system and had no means of restricting the flow.

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o  Allen v. Gulf Oil Refining Ltd., (1981) 1 AC 1001
o  An oil refinery was causing great inconvenience and annoyance to local

residents who complained of unpleasant odours, noxious fumes, vibrations,
heavy traffic and loud noise in their previously quiet rural setting.
o  While allowing the defence of statutory authority the court held that where
the Parliament has expressly or impliedly authorized the construction of
works (an oil refinery), that authorization carries with it the right to do all that
is necessary for the authorized purpose, without the fear of a claim for
nuisance being brought.

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o  Wheeler v. Saunders, (1995) 2 All ER 697
o  In this case there was no change in the character of the neighbourhood but
only a small change of use allowing the building of pig units which did not
amount to a strategic planning decision.
o  The defence of statutory authority did not apply in a claim for nuisance
arising out of the foul smells which emanated from the pig units. The court
held that unlike Parliament, planning authorities have no power to authorize
a nuisance except so far as they have statutory authority to allow a change
in the character of a particular neighbourhood and the nuisance was the
inevitable result of authorized use.

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o  In a suit for nuisance it is no defence:
o  1. Plaintiff came to the nuisance
o  e.g. if a man knowingly purchases an estate in close proximity to a smelting

works his remedy, for a nuisance created by fumes issuing therefrom is not
affected.

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o  2. In the case of continuing nuisance, it is no defence that all possible care
and skill are being used to prevent the operation complained of from
amounting to a nuisance.
o  In an action for nuisance it is no answer to say that the defendant has done
everything in his power to prevent its existence.

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o  3. It is no defence that the defendant s operations would not alone mount to
nuisance.
o  e.g. the other factories contribute to the smoke complained of.

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o  4. It is no defence that the defendant is merely making a reasonable use of
his own property. No use of property is reasonable which causes substantial
discomfort to other persons.

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o  5. That the nuisance complained of although causes damages to the plaintiff
as an individual, confers a benefit on the public at large.
o  A nuisance may be the inevitable result of some or other operation that is of

undoubted public benefit, but it is an actionable nuisance nonetheless.
o  No consideration of public utility should deprive an individual of his legal

rights without compensation.

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o  6. That the place from which the nuisance proceeds is the only place
suitable for carrying on the operation complained of.
o  If no place can be found where such a business will not cause a nuisance,
then it cannot be carried out at all, except with the consent or acquiescence
of adjoining proprietors or under statutory sanction.

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Thank You!

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Chapter II - Nuisance

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Chapter II - Nuisance

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Law of Torts, MV Accident and Consumer

Interference with Immoveable Property: Nuisance

Copyright: Dr C J Rawandale, SLS

o One in possession of a property is entitled as per law to undisturbed

o If someone else s improper use in his property results into an unlawful

Copyright: Dr C J Rawandale, SLS

o Nuisance is an injury to the right of a person in possession of a property to

Copyright: Dr C J Rawandale, SLS

o According to Salmond, the wrong of nuisance consists in causing or

Copyright: Dr C J Rawandale, SLS

Copyright: Dr C J Rawandale, SLS

o 1. Trespass is direct physical interference with the plaintiff s possession of

o Nuisance is an injury to some right accessory to possession but no

o A right of way or light is an incorporeal right over property not amounting to

Copyright: Dr C J Rawandale, SLS

o Trespass of cattle discharge of noxious matter into a stream and ultimately

Copyright: Dr C J Rawandale, SLS

o If interference is direct, the wrong is trespass, if it is consequential, it

o Planting a tree on another s land is trespass, whereas when one plants a

Copyright: Dr C J Rawandale, SLS

o 2. damage or loss or inconvenience or annoyance caused to another.

Copyright: Dr C J Rawandale, SLS

o The plaintiffs -appellants sued the defendants-respondents for a permanent

Copyright: Dr C J Rawandale, SLS

Copyright: Dr C J Rawandale, SLS

o Nuisance is of two kinds:

o A. Public (General or Common) Nuisance;

Copyright: Dr C J Rawandale, SLS

o Section 268 of the Indian Penal Code, defines it as an act or illegal

Copyright: Dr C J Rawandale, SLS

Copyright: Dr C J Rawandale, SLS

o Carrying on trade which cause intolerable noises, Lambton v. Mellish,

o Keeping an inflammable substance like gunpowder in large quantities,

o Drawing water in a can from a filthy source, Attorney General v. Hornby,

Copyright: Dr C J Rawandale, SLS

o Blocking a canal (Rose v. Miles (1815) 4 M & S 101);

o Queuing on a highway, so causing an obstruction (Lyons v. Gulliver

o Picketing on a highway (Thomas v. NUM (South Wales Area) (1985) 2 All

Copyright: Dr C J Rawandale, SLS

Copyright: Dr C J Rawandale, SLS

o 1. He must show a particular injury to himself beyond that which is suffered

o 3. The injury must be shown to be of a substantial character, not fleeting or

Copyright: Dr C J Rawandale, SLS

o The plaintiff resided in a house next to a Roman Catholic Chapel of which

Copyright: Dr C J Rawandale, SLS

o The plaintiff, while walking on the highway was injured on a Tuesday by

Copyright: Dr C J Rawandale, SLS

Copyright: Dr C J Rawandale, SLS

o by the Advocate General, or

Copyright: Dr C J Rawandale, SLS

o By the Advocate-General acting ex officio; or

o By him at the instance of two or more persons or

o by two or more persons with the leave of the Court.

Copyright: Dr C J Rawandale, SLS

o Private nuisance is the using or authorising the use of one s property, or of

o In contrast to public nuisance, private nuisance is an act affecting some

Copyright: Dr C J Rawandale, SLS

o Private nuisance is an unlawful interference and/or annoyance which cause

o Thus the elements of private nuisance are:

o 1. unreasonable or unlawful interference;

Copyright: Dr C J Rawandale, SLS

In the case of damage to property any sensible injury will be sufficient to

o St. Helen Smelting Co. v. Tipping, (1865) 77 HCL 642

o  One in possession of a property is entitled as per law to undisturbed

o  If someone else s improper use in his property results into an unlawful

o  Nuisance is an injury to the right of a person in possession of a property to

o  According to Salmond, the wrong of nuisance consists in causing or

o  1. Trespass is direct physical interference with the plaintiff s possession of

o  Nuisance is an injury to some right accessory to possession but no

o  A right of way or light is an incorporeal right over property not amounting to

o  Trespass of cattle discharge of noxious matter into a stream and ultimately

o  If interference is direct, the wrong is trespass, if it is consequential, it

o  Planting a tree on another s land is trespass, whereas when one plants a

o  2. damage or loss or inconvenience or annoyance caused to another.

o  The plaintiffs -appellants sued the defendants-respondents for a permanent

o  Nuisance is of two kinds:

o  A. Public (General or Common) Nuisance;

o  Section 268 of the Indian Penal Code, defines it as an act or illegal

o  Carrying on trade which cause intolerable noises, Lambton v. Mellish,

o  Keeping an inflammable substance like gunpowder in large quantities,

o  Drawing water in a can from a filthy source, Attorney General v. Hornby,

o  Blocking a canal (Rose v. Miles (1815) 4 M & S 101);

o  Queuing on a highway, so causing an obstruction (Lyons v. Gulliver

o  Picketing on a highway (Thomas v. NUM (South Wales Area) (1985) 2 All

o  1. He must show a particular injury to himself beyond that which is suffered

o  3. The injury must be shown to be of a substantial character, not fleeting or

o  The plaintiff resided in a house next to a Roman Catholic Chapel of which

o  The plaintiff, while walking on the highway was injured on a Tuesday by

o  by the Advocate General, or

o  By the Advocate-General acting ex officio; or

o  By him at the instance of two or more persons or

o  by two or more persons with the leave of the Court.

o  Private nuisance is the using or authorising the use of one s property, or of

o  In contrast to public nuisance, private nuisance is an act affecting some

o  Private nuisance is an unlawful interference and/or annoyance which cause

o  Thus the elements of private nuisance are:

o  1. unreasonable or unlawful interference;

o  St. Helen Smelting Co. v. Tipping, (1865) 77 HCL 642

o  The plaintiff, a doctor, complained that sufficient quantity of dust created by

o  The respondent was owner of a tree growing in the footpath of a highway.

o  Homeowners were entitled to recover the cost of remedial works and

o  A landowner’s buildings suffered damages in 2003 and 2006 by incursion of

o  Defendant had developed a construction site close to a sewer operated by

o  In case of physical discomfort there are two essential conditions to be

o  Materially interfering with the ordinary comfort of human existence.

o  ‘If the defendant has created a nuisance, it is actionable; but the

o  In order to be able to bring an action for nuisance to property the person

o  The discomfort should be such as an ordinary or average person in the

o  its degree or intensity;

o  An injunction was granted to prevent a gas company from manufacturing gas

o  An injunction was granted to prevent a company from carrying on calcining

o  Sanders Clark v. Grosvenor mansions Co. (1900) 16 TLR 428

o  An injunction was granted to prevent a person from turning a floor

o  The defendant established an electric flour mill adjacent to the plaintiff s

o  In this case, perpetual injunction was granted to restrain defendant from

o  It was held by the Allahabad High Court a permanent injunction may be

o  It was held that interference by the court in respect of noise pollution is

o  Following are the valid defences to an action for nuisance:

o  Three things are necessary to establish a right by prescription:

o  Use and occupation or enjoyment;

o  On the expiration of this period the nuisance becomes legalised ab initio, as

o  The easement can be acquired only against specific property, not

o  A prescriptive right to the exercise of a noisome trade on a particular spot

o  It was held that no prescriptive right could be obtained to discharge sewage

o  No right to hold kirtan upon another s land can be acquired as an easement.