TUTORIAL QUESTION

Topic 1 Nuisance
1. Miza owns a house in the middle of a heavy agricultural area in Kampung
Permatang. She lives with her husband, Ahmad. Living there, Miza has been
surrounded by three different neighbours.

The first is Cheng Ho Farm, which breeds pigs for the pork industry around a nearby
town, Bandar Chempaka. When the wind is blowing from the right direction, the smell
from the pig farm makes it almost unbearable to be outside of her house. Although
Miza has spoken to the owners of Cheng Ho Farm, there is little they can do in order
to close the farm down.

The second is Gemilang Tree Farm, which grows softwood trees for the paper
industry. It has been in business for nearly 30 years. Miza has recently built a garage
on the south border of her property to house her vintage car collection. She noticed
one day that a large crack has formed in the garage wall. She referred the problem to
a building inspector, who found substantial subsistence in the land underneath the
garage, caused by the root systems of the trees growing on the Gemilang property.
The building inspector noted that the garage is damaged beyond repair, since the
foundations will need relaying. There is a significant risk that the garage will collapse
otherwise.

The third is Berjaya Agricultural Products, another farm. The farm is currently in the
process of building a new cattle farming centre, in order to meet the requirements of
a new contract that the farm has signed with the businesses it supplies. They need to
begin production within the next two months to meet their quota, and so have
employed builders to work throughout the night. They are scheduled to complete the
project just in time. Therefore, the building works taking place on Berjaya Agricultural
Products’ property is keeping Ahmad awake all night. Miza is unaffected, since she
takes a sleeping pill each night.

Advise Miza and her husband, Ahmad, as to their rights under the tort of nuisance.
(20 marks) JUNE 2019

There are three issues that can be found in this question.

 Firstly is whether Ahmad can initiate a legal action under private nuisance
against Berjaya Agicultural Products for the lack of sleep suffered by him.

 Secondly is whether Miza and Ahmad can sue Gemilang Tree Farm under
private nuisance for the damages to their recently built garage to house Miza’s
vintage car collection.
 The third issue is whether Miza can sue Cheng Ho Farm under private nuisance
for polluting the air as the smell from the pig farms makes it almost unbearable
for Miza to be outside of her house.

Definition

In general, nuisance can be defined as an annoyance, disturbance or

interference. The law of nuisance is concerned with the protection of environment
and to provide comfort to persons who have proprietary interest in the land
and to members of society generally, through control of environmental
conditions. Even though a person who has interest in land is able to do whatever he
wishes on his land, his activities however, must not cause inconvenience or damage
to another person who similarly has an interest over his land. Nuisance can be
categorized into three which are private, public and statutory nuisance.

Private nuisance was defined in the case of Read v Lyons & Co Ltd (1945) KB 216
at 236 as an unlawful, substantial and unreasonable interference with a person’s
use, comfort, enjoyment and any interest that a person may have over his land. In
order to initiate a claim under private nuisance, a claimant must have an interest in
the land in which he asserts his enjoyment or use has been unreasonably
interfered with. In Malone v Laskey [1907] 2 KB 141, the claimant was injured when
vibrations from an engine on an adjoining property caused a bracket to come loose
and the cistern to fall on her in the lavatory. She was unsuccessful in her claim as
she did not have any proprietary interest in the house considering the fact that her
husband was a mere licensee through his employment as a manager.

In the present situation, Miza and her husband, Ahmad, both own an interest in the
land as they own a house in that particular neighbourhood where the nuisance arise.
Thus, they are entitled to claim under private nuisance for damages suffered by
them.

Law + Application
There are a few requirements that need to be fulfilled in establishing nuisance. The
first requirement is to prove that there is a substantial interference. Nuisance is not
actionable per se. A plaintiff needs not prove a special or particular damage but
needs to prove that he has suffered some form of damage from the interference in
order to succeed in his claim. Whichever type of damage has occurred, the plaintiff
must prove that there has been substantial interference.

Interference with the use, comfort or enjoyment of land are collectively known as
amenity nuisance.They result in the feeling of discomfort whereby one is unable to
live peacefully and comfortably on one’s own land arising from the defendant’s
activity. What constitutes substantial interference int his depends on facts and
circumstances of each case. Decisions have to be made on a case-by-case basis,
and the courts must take into account whether the plaintiff’s complaint is reasonably
justified in the context of the surrounding circumstances. In Andrea v Selfridge & Co
Ltd (1937) 3 All ER255, the plaintiff occupied land from which she operated
a hotel. The defendant owned the surrounding land and carried out extensive
demolition work on this land for rebuilding purposes.The plaintiff sued the defendant
for nuisance arising out of the dust and noise and claimed that she had lost
significant custom as a result. The Court of Appeal considered that,
since building operations cannot be carried out without a certain amount of noise
and dust, neighbors have to put up with a certain amount of discomfort. Additionally,
reasonable skill and care has to be taken to ensure that no undue inconvenience
was caused to neighbors. But, the defendant in this case had caused noise at
unreasonable hours and the quantity of dust and grit was described by the court as
insufferable. The plaintiff succeeds in her claims.

Applying the case of Andrea v Selfridge & Co Ltd (1937) 3 All ER 255 in Ahmad’s
situation, the noise that came from the farm, Berjaya Agricultural Products, which
currently in the process of building a new cattle farming centre in order to meet
requirements of a new contract has interfered with his comfort and enjoyment of the
land where he could not sleep whenever the building works continued until late at
night. The noise is the direct result that arise from the process of building a new
cattle farming centre at the Berjaya Agricultural Products’ property.
Besides, an interference that cause a material or physical damage to the plaintiff’s
land or property can also constitutes a substantial interference. Where actual
physical damage to land occurs, the general principle is that it amounts to
substantial interference and therefore is recoverable.However, it is not
automatic that actual physical damage is recoverable. It must nonetheless be
established that the physical damage is substantial in nature. In Hotel Continental
Sdn Bhd v Cheong Fatt Tze Mansion Sdn Bhd (2002) 3 AMR 3405, the appellants
who owned a hotel were building a 20-storey extension to their hotel. The
respondents who owned the adjacent land claimed that the piling works of the
appellants caused severe cracks to appear in their heritage building.Their application
for an injunction was allowed as it was found that unless an alternative system of
piling was adopted, the safety and structural stability of their building
would be endangered. Although the piling works were temporary, it did not
exclude the respondents’ right to an injunction as the physical damage to their
property constituted a substantial interference which was actionable.

In Miza’s situation, there is a physical damage to her property which is a garage on

the south border of her property to house her vintage car collection where she
noticed that a large crack has formed in the garage wall. Miza referred the problem
to a building inspector, who then found substantial subsistence in the land
underneath the garage caused by the root systems of the trees growing on the
Gemilang property. The building inspector also noted that the garage is damaged
beyond repair, since the foundations will need relaying and there is a significant risk
that the garage will collapse otherwise. These show that there is an actual physical
damage suffered by Miza that amounts to substantial interference.

Next, Miza also suffered from air pollution caused by Cheng Ho Farm, which breeds
pigs for the pork industry. The smell from the pig farm makes it almost unbearable
for Miza to be outside of her house. This resulted in interference of comfort and
enjoyment for both Miza and her husband to live peacefully and comfortably on their
own land and these could also amounts to substantial interference.

Subsequently, after succeeding in proving that the interference is substantial in

nature, the claimants must further prove that the interference caused by the
defendant’s activity is unreasonable. An interference must be unreasonable
before it can be considered unlawful. Private nuisance requires an unreasonable use
of land by the defendant which leads to unreasonable interference with the
claimant's use or enjoyment of their own land. In Saunders-Clark v Grosvenor
Mansions [1900] 2Ch 373, Buckley J provides that ‘… the court must consider
whether the defendant is using his property reasonably or not. If he is using it
reasonably, there is nothing which at law can be considered a nuisance; but if he is
not using it reasonably... then the plaintiff, is entitled to relief. ’Reasonableness under
nuisance is measured by balancing the rights and interests of either parties or better
known as a compromise process where the occupier have the right to do what
he likes without interfering with his neighbors’ right to the full enjoyment on his land.

There are a few factors that was used as guidelines by the courts in order to
determine whether an interference is unreasonable, namely locality, duration,
hypersensitivity and malice.

For a non-physical damages or amenity nuisances, the location of the plaintiff’s and
the defendant’s premises is a relevant factor to be considered in assessing
whether the defendants’ activity is unreasonable and amounts to substantial
interference. The reasonableness of the use of land will be assessed with regard to
the nature of the locality in deciding whether there exists an actionable nuisance. In
Sturges v Bridgman (1879) 11 Ch D 852, the plaintiff, a physician claimed against his
neighbor over the noise arising from the neighbors’ confectionery business. The
court took into consideration the fact that the area consisted of many medical
specialists’ consulting rooms and the plaintiff’s claim was allowed.

In the present situation, the premise where the process of building a new cattle
farming centre is doing a construction work is in a neighbourhood area
which were reside by many people. Dunno also does not take any reasonable care
or skill to muffle the noise from interfering with the people’s comfort. Thus, his activity
can be considered as unreasonable.

In the present situation, the time and duration of the activity is also taken
into account when determining the unreasonableness of the defendant’s
activities. Some activities may be reasonable at one time but not at another time. In
Halsey v Esso petroleum [1961] 2 All ER 145, the act of filling oil tankers at10am
was held to be reasonable. But, if it was undertaken at 10 p.m., it will be
unreasonable. For an interference to be substantial, it must be continuous. In
general, the longer the nuisance lasts the greater the interference and the greater
the likelihood of it being held to be an unlawful interference.

The third is Berjaya Agricultural Products, another farm. The farm is currently in the
process of building a new cattle farming centre, in order to meet the requirements of
a new contract that the farm has signed with the businesses it supplies. They need to
begin production within the next two months to meet their quota, and so have
employed builders to work throughout the night. They are scheduled to complete the
project just in time. Therefore, the building works taking place on Berjaya Agricultural
Products’ property is keeping Ahmad awake all night. Miza is unaffected, since she
takes a sleeping pill each night.
2. Ana, Joyce, Sara and Dora occupied adjoining houses in a residential area, near a
rooftop water theme park maintained by Wet Water. Sara had a temporary posting
overseas for two years starting in October 2018. She let her house for two years to
Eric, whose hobby is carpentry.

Eric spent a great deal of time building furniture and other large wooden objects in
the garden at the back of the house. This has annoyed Dora, a nurse, who is
frequently on duty at nights and is unable to sleep during the day when Eric is
working. Eric has refused to desist from noisy work when Dora is trying to sleep.

Sawdust from Eric's activities has blown over the fence into Joyce's garden. Some of
this was eaten by a dog belonging to Joyce's sister, Emily who came to stay
permanently with Joyce in January. The dog was severely ill as a result and
eventually died. The sawdust was extremely difficult to pick up and after a heavy
rainstorm the sawdust was carried in the drain in Joyce's garden. The drain was
blocked and, in the ensuing flood, water flowed into Joyce's and Ana's houses. They
all suffered damages in this incident. In the meantime, Joyce, whose house is only
700 meters from the theme park, discovered that all her belongings were damaged or
destroyed. It was later found that Wet Water's water pump has leaked and burst.

Since Joyce's house is the only one in the area that is the lowest, among other
houses, the water centered onto her land.

a) Advise the parties as to their legal rights against Eric; and (25 marks)
b) Explain the legal action that could be brought by Joyce against Wet Water. (15
marks) (DEC 2019)

3. Amazing Chemicals own and operate a large, chemical processing factory in the
middle of rural Nottinghamshire. Last year, they obtained planning permission to
double the size of their factory. Koko, Daisy and Eddie live nearby and have recently
experienced a number of problems related to the chemical processing plant.

Koko, who owns a farm 2 miles away from the factory, complains that Amhexidine, a
chemical used by Amazing Chemicals has percolated into the soil and contaminated
a water source on his land used to water his crops and livestock. He has been forced
to find another water supply at a cost of RM250,000. Amhexidine is on an EU list of
banned chemicals because it is known to be harmful to human health. However, a
crop of fast growing shrubs intended as bio-fuel for a nearby power station has died
off after being irrigated with water contaminated with Amhexidine. There has been no
report previously of Amhexidine being harmful to plants.

Daisy lives next door to the factory. She complains that loud machinery used at the
factory every night between 2 am and 6 am is keeping her awake. Dirt and dust from
thefactory has also caused damage to Daisy's extensive collection of garden
gnomes.

Eddie, an aspiring author, is visiting a friend of his in the area whilst he completes his
latest novel. Eddie complains that vibrations from the machinery at the factory are a
constant distraction to his work.

Advise Koko, Daisy and Eddie as to their remedies, if any, in the law of tort. (20
marks)