TAYLOR’S UNIVERSITY

TORT LAW 11

NUISANCE ( IV )
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________________________________________________________________________________________
DEFENCES

Hypersensitive
Activities
“Came to the
Nuisance”

Statutory authority
Prescription

Public Benefit

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 “Came to the Nuisance”
Sturges v Bridgman (1879)
DEFENCES (AND ‘NON DEFENCES)

Facts
Sturges, a doctor moved next door to a confectioner, Bridgman,
who had produced sweets for sale in his kitchen for many years.
The doctor constructed a small shed for the purpose of private practice
on the boundary of the two properties. However, the loud noises from the
confectioner's industrial mortars and pestles could be clearly heard,
disrupting his use and enjoyment of his land and he sought an injunction.
The injunction was granted by the lower court and Bridgman appealed.

Issue
Does it matter that the noise was there for an extended period but did
not cause a nuisance until recently?
• .

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 STURGES CONT………

Def’s argument:
Def argued that the Pl came to the nuisance and he had
already been carrying out the confectionery biz for the
previous 20 years

Held: It is no defence to say “I was here first and the

claimant came to the nuisance”.

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 CHARACTER OF NEIGHBOURHOOD
Ratio of the decision in Sturges :
The character of a neighbourhood matters in determining whether or not
an action constitutes a nuisance.
The court goes on to consider the character of the neighbourhood. Here, it is a
residential neighbourhood, and a reasonable person would find this type of
activity a nuisance in such a neighbourhood. The court holds that if the
neighbourhood was known to be industrial, then it is possible that the decision
would be different. The court does not want to discourage the development of
land for residential purposes.

Note: As long as the noise affects the use and enjoyment of the
land it would be considered a nuisance.

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DISTINGUISH MILLER V JACKSON [1977] QB 966
• Facts:
A cricket ground had been used for more than 70 yrs
when a new housing estate was built. Cricket balls regularly came
into the Pls garden hence using the garden during a match was
dangerous. C alleged nuisance and negligence.

• Lord Denning :
“consider whether the use of the cricket ground could be
regarded as unreasonable use of land rejecting the
approach in Sturges, he argued that the case should be
approached “on principles applicable to modern conditions”.
There’s a conflict between the interest of the public and the
private interest. Public interest is the benefit of enjoying
outdoor games, private interest is to secure privacy of home
and garden without interference”
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Taking into consideration that the C bought the property
during mid-summer when the cricket season was at its
height, Lord Denning took the view that the risk of the balls
coming into the property should have been obvious.

Held: The majority of the court having found a

nuisance, an injunction was refused although
damages were awarded.

Note: The issue of public interest was taken into

consideration.

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See also: Kennaway v Thompson
[1980]3 WLR 361
 Boating activity affecting the Pls enjoyment of
land.

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KENNAWAY V THOMPSON[1981] QB 88

Brief facts:
Kennaway built her house on land near a lake on which there
was a water-skiing and motorboat-racing club. She knew ahead
of time of the activities but did not think that they would
disturb her. However, over the years the activity increased and
she brought action for an injunction. The lower court found
that there was a nuisance but refused to grant an injunction,
rather awarding her £1,000 for damages to that date and
£15,000 for damages likely to be incurred in the future.
Kennaway appealed seeking an injunction.

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Issue
Does the plaintiff have an action for an injunction in nuisance?
Decision
Appeal allowed, injunction granted detailing allowed operation.
Held: Unless the injury to the claimant was substantial, an injunction was the proper remedy.
(Note: if the injury is small, damages in lieu of injunction would be considered: See Shelfer’s principle)

Reasons
The court stated that once the plaintiff had proved that the club had caused a nuisance that
interfered in a substantial and intolerable way with the enjoyment of her house, she was entitled
to be granted an injunction. However, he clarified by stating that the injunction must protect her
from excessive noise, but not prevent the club from organizing events about which a reasonable
person could complain.
As a result the injunction laid out detailed provisions about how and when the club could operate.
Ratio
The court expressly disagrees with Denning's ruling in Miller v Jackson and refuses to allow the
public interest to prevail.

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 Prescription
To establish this defence, D must show that the
activity has been conducted without complaint from
DEFENCES (AND ‘NON DEFENCES)

his neighbour for 20 yrs

• Sturges v Bridgman (1879)
- D argued that the physician came to the nuisance and he
had already been carrying out the confectionery biz for the
previous 20 years

Held: 20 yrs starts to run only when claimant comes on

the land and not from the time the activity started

• Miller v Jackson (1977)

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 Hypersensitive Activities
DEFENCES (AND ‘NON DEFENCES)

This is an argument where the activity may not cause

harm to the vast majority but only to a particular person
with a ‘delicate condition’

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 ROBINSON V KILVERT (1889)

Brief facts:
The defendant carried on a business of making paper boxes.
This required a warm dry atmosphere. The defendant operated
from the basement of their premises and let out the ground
floor to the claimant. The claimant used the premises for
storage of brown paper. The heat generated from the
defendant’s operations damaged the brown paper belonging to
the claimant.

Held: Claimant cannot claim because he carried out an

exceptionally delicate trade

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 Robinson v Kilvert (1889)

Cotton LJ:
It would, in my opinion, be wrong to say that the doing something not in itself
noxious is a nuisance because it does harm to some particular trade in the
adjoining property, although it would not prejudicially affect any ordinary trade
carried on there, and does not interfere with the ordinary enjoyment of life.
Here it is shewn that ordinary paper would not be damaged by what the
Defendants are doing, but only a particular kind of paper, and it is not shewn
that there is heat such as to incommode the workpeople on the Plaintiff's
premises. I am of the opinion, therefore, that the Plaintiff is not entitled to
relief on the ground that what the Defendants are doing is a nuisance."
Lopes LJ:

"I think the Plaintiff cannot complain of what is being done as a nuisance. A
man who carries on an exceptionally delicate trade cannot complain because it
is injured by his neighbour doing something lawful on his property, if it is
something which would not injure anything but an exceptionally delicate
trade."
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 MCKINNON INDUSTRIES V WALKER (1951)
Facts:
The defendant manufactured steel and iron products 600 feet from the
claimant’s property. The claimant had a dwelling house and also a
commercial florists and nursery. As part of his business he specialized in
growing orchids which are known for their particular sensitivity. The claimant
brought an action in relation to noxious fumes and smuts which had
deposited over his shrubs, trees, hedges and flowers causing them to
die.

Held:
The defendant’s actions constituted an unlawful nuisance and therefore the
claimant was entitled to recover damages in respect of the orchids despite
the sensitive nature of the flowers. Once nuisance is established, claimant
can claim because such harm would be suffered in ordinary
circumstances

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SEE ALSO : BRIDLINGTON RELAY V YORKSHIRE
ELECTRICITY BOARD (1965) CH 436 

Facts: The case concerned electrical interference with

TV signals caused by the activities of the defendant
Electricity Board.
Held: Such interference did not constitute a legal
nuisance, because it was interference with a purely
recreational facility, as opposed to interference with the
health or physical comfort or well-being of the plaintiffs.

Note: This case was decided before Hunter

-

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 Public Benefit

This is the argument where the defendant argues that the harm
DEFENCES (AND ‘NON DEFENCES)

caused to the neighbour is outweighed by public benefit

• Adams v Ursell (1913)

- Dry fish business, D argued public benefit of community
Held: not a defence. Actionable by claimant arguing nuisance
by foul smell

• Kennaway v Thompson (1981)

- Water sport creating nuisance to Pl.
Since harm is suffered, difficult to argue as a defence
Ct restricted the sporting events
And balanced the interest of claimant and defendant.
One international club event per year over 3 days, 3 club events a yr of
1day each separated by 4 wks and other limits.

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WHAT ABOUT CIRCUMSTANCES OF
NATIONAL DEFENCE ?
Dennis v Ministry of Defence (2003)
•Noise interference by RAF jets which regularly over flew the
neighbouring estate creating nuisance.

•Mr. Justice Buckley held :

• “ that public interest clearly demands that RAF Wittering should
continue to train its pilots”. No remedy of injunction was thus
available using the common law.

•Article 1 First Protocol-peaceful enjoyment of property

•Noise interference by aircraft a breach of Article 8 and loss of
value of home a breach of First Protocol.
•Compensation payable.

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 Statutory Authority
If a statute confers power to the def to conduct a particular
DEFENCES (AND ‘NON DEFENCES)

Activity, the def will usually escape liability notwithstanding that

The activity gives rise to an interference.

• Allen v Gulf Oil Refining Ltd (1981)

- Due to huge demand for crude oil, the def secured a
private Act of Parliament to build a refinery. The Act stipulates
the building and construction and subsidiary works but no express
Authority for the use and operation of the refinery once it had been
Built. Pl sued for nuisance

Held: Gulf Oil pursuant to the Act not only authorised

To operate the refinery but also its operation and use; and
It is thereby granted immunity from any “non-negligent” interference.

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HUMAN RIGHTS ACT 1998
Statutes would have to be interpreted in the light of
HRA:
 Section 3 provides that”[s]o far as it is possible to do so,
primary legislation and subordinate legislation must be
read and given effect in a way which is compatible with
the Convention rights’, and where it is not possible, the
courts must ( under section 4) declare the legislation
incompatible with the Convention.

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DISTINGUISH
• Marcic v Thames Water (2004)
 C’s property regularly flooded with sewage as the drainage
provided by Thames Water was inadequate. 1992 onwards, regular
flooding has damaged his garden and fabric of the house. No
prospect of Def doing remedial works. Sued in Nuisance & HRA 98

 Issue: Liability of water service providers for failure to resolve

 problems experienced by those receiving their services.

 Held: That the common law of nuisance could ‘not impose on

 Thames Water obligations inconsistent with the statutory scheme
 ( per Lord Nicholls at para 33), leaving the claimant no remedy for
what was in reality a nuisance even if it was not one in law.

 Claim under Act succeeded.



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DEFENCES –MALAYSIAN LAWS
EASEMENT
S 282(1) of the National Land Code 1965- any right
granted by one proprietor to another for the
beneficial enjoyment of his land.
Note:
 It confers a right to do something on, over or upon the
land; and any right that something should not be done.
 The grant of easement is a formal process and it will
stipulate the length of time it is granted.

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MALAYSIAN LAW
Statutory Authority
Confers powers to the def to conduct a particular activity, the def
will usually escape liability notwithstanding that the activity
gives rise to an interference. Def however must prove that the
interference was unavoidable despite precautionary measures
being taken.

Note: Not a good defence if substantial damage is caused to

neighboring property

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 MALAYSIAN LAW
See Local Government Act 1976 (Act 171),s 64:
“…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 purpose which are injuriously affected
will be compensated in accordance with the provisions of
any written law……”
Note: In dispute, parties can refer to the matter to the court of competent
jurisdiction and the compensation in the form of damages will be
awarded.

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Goh Chat Ngee & Ors v Toh Yan & Anor [1991] 2 CLJ
1163
Defs mining activities constituted an unnatural use of land, as
water had escaped & flooded the P's land causing it to collapse
& sink, subsequently causing flooding, erosion & settlement.
The court held that a landowner (with adjacent to P's land) had a
Common Law obligation not to interfere with the support
structure of his neighbours land, which is provided for under
s.44 (1)(b) National Land Code. The D had breached this
statutory duty & was also liable in nuisance with the use &
enjoyment of his neighbour's land.

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