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Published: Fri, 02 Feb 2018

Private nuisance

Introduction

Private nuisance is an ancient wrong design as an action between neighbouring landowner to protect a person interest in land from being adversely effected by the activities of his neighbor. The harm is usually indirect, as the tort of trespass protects a person against direct invasion.

Private nuisance also is a tort which deals with dispute between adjacent landowners. It involves drawing a balance between the right of one person to use their land in whatever way they wish and the right of their neighbor not to be interfered with. It is an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.

A nuisance which consists of an interference with a right in land is dealt with in land law under the heading of servitudes. Although a person who has an 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 as an interest over his land. Thus, the law of nuisance is concern with the balancing of competing interest.

The usual starting point in a discussion of private nuisance is the principle that no man is allowed to use his property to injure another, which was itself is very little use. It does not tell us at what point the use of the property by the defendant may go before the law will in intervene. There is a balance to be sought and if possible achieved between competing private rights as between adjoining landowners and the spurious public interest.

Problem Statement

In regard to our proposal on the study on nuisance, the main problem statement is whether that there are any laws which govern the private nuisance issue. The issue arise when the nuisance had occurs and we would looked which provision for the set of law can be related in the public nuisance. In this research we also would discuss about what basis the private nuisance has established as a law to protect the interest of the people in the civil suit and how effective there are to cover the situation occurs. If there is any law related with the private law, how can that law would be applied to the wrongdoer.

In this study, the private nuisance would be discussed in detail for more understanding. This has led to suppose the primary question of whether or not, private nuisance has enough protected the people interest. In this study we would look the parties which can take the legal action to the tortfeasor.

There are also will be discuss the defenses available for rebuttable the claim in private nuisance. In the finishing of this study, the researcher can get more understanding related to private nuisance and be able to give the talk about the significance of the private nuisance in the law to protect the interested person.

Significant Of The Study

Our study is totally based on private nuisance. Private nuisance is one of the portions in Law of Tort. First and foremost, it shall be important to ensure that this research regarding the private nuisance give rise to uphold the right of an individual in enjoying a harmony and peaceful life. This peaceful life includes the life in the neighbourhood which essentially protects land. Thus, private nuisance is a field in law of tort that must be digested in order to ensure the right of individual against nuisance and the remedy such as exemplary damages that may recover if this type of nuisance happens.

Objective

The general objective of this research is to get more information pertaining to private nuisance and to enhance the understanding of the subject matter in the studies. This can help people to more understand their rights and enhanced their knowledge regarding private nuisance. Private nuisance may occur in our life, so we need to make full research regarding private nuisance in order to make people aware of their right.

This research also constitutes following specific objectives:

1) To produce distinction between private nuisance with other nuisance.

2) To examine the existing of law and legislation which use in determine on litigation which involve with private nuisance.

3) To draw the attention to the general public about what is their right when the nuisance infringe their right to live in freedom.

4) To examine the existence law, whether it enough to protect the right of person in Malaysia.

Hypothesis:

The vivid explanation in the legal position particularly in Malaysia in the concerning with private nuisance in the Law of Tort in the Civil litigation. The principle in nuisance based on common law principle which based on the principle raise in the case of Ryland and Flecther which imposes liability when something that is likely to cause mischief escapes from the defendant’s land onto the plaintiff’s land, causing the damages to the plaintiff. This in itself may give rise to an action for nuisance but it not may not be necessary so.

Nuisance shall prove as valuable to many as profound understanding and inter-relation between people for attained the peacefully and without antagonism. In result of a more fathomable and graphical explanation on significance of the establishment of nuisance in Malaysia, people will generally understand and grasp the idea without belligerence and contention. Failure to furnish the people with an accuracy of their right shall induce the public to act beyond reasonable manner. Despite the fact that Malaysia, being the multi-racial populated country, there are still cases which involved in the litigation arise between the racial which not satisfied with other. The law in Malaysia has followed the nuisance according to common law to prevent any person to infringe another right to live in freedom.

Research Methodology

Doctrinal research is a research into pure law. Law can be defined as a set of rules and principles that regulates the relationship between individuals. Its takes one or more legal prepositions which is rules, principles, doctrine, maxim, concepts and terms as a starting point and focus on the study. Research takes place in the law library in a ways of reading and analyzing all materials. Last but not least, a report will be written up which may offer a new formulation in the prepositions or a new model statute.

For the purpose of our research, we shall undertake to use law to further support our research. . In regard to the law we shall undertake to use English common law, local judicial decision, and common law principle which have been codified into local statutes. For instance, we use the most relevant cases whether from English common law or local decided cases in order to explain the several circumstances public nuisance in our lives.

Moreover, the local statute that has been use is 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 of occupiers of any land, houses, or buildings which are required for such purpose or which 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 accord of competent jurisdiction. Therefore, damaged caused to a plaintiff’s property arising from nuisance created by a local a authority in pursuance of its statutory power will be compensated in the form of damages. An injunction will presumably not be granted against the local authority for the exercise of its powers under the statutes.

Data

Types Of Data

There are three types of data that we use for the purpose of our research. Firstly is the primary source. There are two types of primary source that we plan to gather around in our research that is cases and statutes pertaining to the private nuisance nationally or internationally so that we can also view the laws regarding private nuisance in the Malaysia and United Kingdom.

Secondly, we shall focus our research on the secondary sources which are articles and journals. These articles as well as journals are retrievable at the Malayan Law Journal and from other academic scholars whose ideas private nuisance are irrefutably reputable.

Thirdly, we shall use the online database as our tertiary source as our last sources.

Data Collection

As regards to data collection, those are to be obtained from the law libraries. For the purpose of this research, we intend to visit in completion of our research are University of Utara Malaysia, as well as International Islamic University, Malaysia. Apart from that, the completion of data collection is to be done through online. The databases are Harvard Law, West Law, Review, Malayan Law Journal as well as Lexis Nexis.

Data Analysis

In ascertaining that our objectives are within reach and attainable, we intend to use content analysis for our research. The data we gather through the data collection, we shall analysis it in order to get full view of private nuisance.

Limitation Of Study

The researchers would like to study more on this proposal; however there are a few limitations which restrict us from getting deeper into this very particular research. For instance:

Restraint Of Time

Time is essential and important in our research. As the researchers are from the group of students, they are restricted in sense of time as they are allocated a fixed date. They have different learning time such as a different class makes them find difficulties in time management. This very factor makes the outcome or the research result is also limited but it is still compact as they used the allocated time wisely.

Restraint Of Reference

There is also the limit to study in terms of selecting the place to seek and to search for information for this proposal. The researchers are only able to have a close study in the public universities’ law libraries which are located nearby such as the University Utara Malaysia Library that is Perpustakaan Sultanah Al-Bahiyah. Since, there are limited of resources and references in the Library, they are only able to find limited information.

Restraint Of Money

Money is the major cause which limits the research. Even though there is a budget provided for the purpose of the research, nevertheless it is still not enough as the budget allocated was small. The money that is received for this proposal is not sufficient as the cost of transportations that includes flight fees and taxi fees are increasing nowadays as the result of the increase in the market price of the petrol and diesel. Besides that, a lot of money is spent in communicating with the party involved as many phone calls have to be made to communicate with important people for the purpose of this proposal.

Literature Review

History Of Nuisance

. In the late 19th and early 20th centuries, it is difficult to administer the law of nuisance, as competing property uses often posed a nuisance to each other, and the cost of litigation to settle the issue grew prohibitive. Most of the country has their owned system of land in planning the use of plan for example zoning that describes what activities are acceptable and appropriate in a certain location. Zoning generally overrules nuisance. For instances, some country uses and industrial zone specifically for a factory to be operated. This industrial zone have their own law and rules where if the factory was operating in the industrial zone, the neighbourhood which lives near the industrial zone can’t make claim to the court for nuisance.. Jurisdictions without zoning laws essentially leave land use to be determined by the laws concerning nuisance.

In the same way, there is an adaptation of the doctrine of nuisance to modern complex societies in modern environmental laws are , for example person’s use of his property may harmfully affect another’s property, or person, far from the nuisance activity and not easily incorporated into historic understandings of the nature of nuisance law.

What Is Nuisance?

According to the oxford dictionary, it means a person or thing that is causing inconvenience or annoyance. From the perspective of law, nuisance is an act which is harmful or offensive to the public or a member of it and for which there is a legal remedy. The purpose of the law of nuisance is to provide comfort to persons who have proprietary interests in land to members of society generally through the control of environmental conditions.

Nuisance Distinguished Between Nuisance And Trespass To Land

These two cause of action that is nuisance and trespass to land does not overlap and can be differentiated. Firstly, the differences between these two is that only a direct act may give a rise to an action for trespass to land but in nuisance a cause of action may be maintained in cases of consequential harm. This can be illustrated in the case of Goverment of Malaysia & Anor v Akasah b Ahad. The plaintiff operated a petrol station and the defendant then built a federal highway which was on higher ground that the petrol station and the road to the station had to be closed. The defendant offered the plaintiff to build a road to the petrol station through the use of another route but the plaintiff refused the offer. In an action for nuisance against the defendant, the Supreme Court held that the Plaintiff failed to prove nuisance. The Court further stated that the differences between nuisances are of a bigger class that trespasses to land.

Another difference is that trespass is an interference with possession of land but in nuisance, it is an interference with the use of land.

Nuisance And Negligence

Negligent act may also give rise to nuisance. For example, landowners owe their neighbours a duty not to disturb or withdraw natural right to support a breach of which give rise to a cause of action in negligence and or nuisance. But it does not mean that negligence is precondition in an action for nuisance. This can be illustrated in the case of Wisma Punca Emas Sdn BHD V Dr Donal, where the plaintiff was doing some construction job beside the plaintiff’s clinic. The job included piling and excavation works. As a result of the activist done by the defendant, the plaintiff’s clinic wall cracked and tilted. The defendant argued that he had taken all reasonable precaution and measurement. The court allows the plaintiff claim for damages. The defendant appealed that the main issue was negligence and since nuisance was not specifically pleaded, the appeal should be allowed. The court held that the plaintiff need not to prove any negligence in a nuisance case and it is enough just to prove there was damage to his property due to the activities done by the defendant. The appeal was dismissed.

Nuisance And The Rule In Rylands V Fletcher

The rule in Rylands v Fletcher imposes liability when something that is likely to cause mischief escapes from the defendant’s land onto the plaintiff’s land, causing damage to the plaintiff. This itself may give rise to an action for nuisance but not essentially so. In an action for nuisance, commonly the interference must be something that is constant but in the rule of Rylands v Fletcher, one single act of interference is adequate.

Damage And Remedies

There are normally two types of damages that is damage to property which is simply identifiable or interference to personal comfort which is mainly on tort of nuisance. Damage to property is self explanatory.

Remedy for nuisance is commonly monetary damages. An injunction or abatement may also be applied under certain circumstances. An injunction orders from the court is used to order the defendant to stop, remove, restrain, or restrict a nuisance or abandon plans for a threatened nuisance. In public nuisance cases, a fine or sentence may be imposed, in addition to abatement or injunctive relief if the defendant refused to obey the injunction order.

Injunction is a drastic remedy, used only when damage or the threat of damage is permanent and not satisfactorily compensable only by monetary damages. The judge in court examines the interest of the public economic hardships to the parties and in allowing the continuation of the enterprise. This function of remedies is to prevent nuisance from continuing. In the case of Pacific Engineering Ltd v Haji Ahmad Rice Mill Ltd, that a person injured by a nuisance may bring an action and claim damages against the defendant for the injury alone or together with the claim of an injunction. In an English case, Shelfer v City of London Electric Lighting Co, the defendant was causing vibration and noise due to their activities. The defendant claim that the plaintiff should be limited to damages as the award of an injunction would deprive many Londoners of electricity. The court held that the discretion not to award the injunction should be exercised only in four exceptional circumstances that is where the injury to the plaintiffs legal right is small, is capable of being estimated in money terms, is one which can be adequately compensated by a small money payment, and it would be oppressive to the defendant to grant an injunction. In the case of Bone v Seale, the defendants pig farm was adjacent to the plaintiff’s land. The plaintiff’s sought an injunction and damages in nuisances in respect of smells caused by pig manure and the boiling of pig swill. The court held that there was no damage to the plaintiff’s property or his health and awarded damages of $ 1,000 based on the amount that would have been awarded in a personal injuries action for loss of sense of smell. Lord Hoffman in Hunter v Canary Wharf Ltd, disapproved of this approached to quantifying damages in private nuisance cases as nuisances is a tort against land not against person. Lord Hoffman suggested that damages should be fixed by the diminution in capital value of the land as a result of the amenity damage.

A self-help remedy, abatement by the plaintiff, can be obtainable under restricted conditions. This advantage must be exercised within a reasonable time after knowing the existence of the nuisance and normally require to give notice to the defendant and the defendant’s had fail to act. Reasonable force may be used to employ the abatement, and a plaintiff may be liable for unreasonable or unnecessary damages. For example, dead tree limbs extending dangerously over a neighbours’ house may be removed by the neighbour in danger, after notifying the offending landowner of the nuisance. In circumstances, where an immediate danger that is affecting the health of the people, property, or life exists, no notification is necessary to be given to the defendant regarding the nuisance.

Private Nuisance

Private nuisance may be defined as unlawful interference with a person’s use, comfort, enjoyment and any interest that a person may have over his land.

As with the definition of public nuisance, in private nuisance too, ‘unlawful interference’ does not mean that the activity or conduct of the defendant is inherently unlawful. An interference becomes unlawful and constitutes a nuisance when it unreasonably interference with the plaintiff’s enjoyment of his land.

In an action for private nuisance the plaintiff must prove interference with the enjoyment of his land. Therefore a plaintiff must have an interest in land to be able to sue in private nuisance, unlike a claim based on public nuisance which does not require the plaintiff to have any interest over land.

Persons who have an interest over land are a landowner, a tenant and a licensee who has been granted a license to use the land for a particular purpose

Establishing Private Nuisance

A plaintiff in a private nuisance action need not prove special or particular damage. The elements required to establish private nuisance are:

Substantial Interference

Nuisance is not a tort which is actionable per se. Although it does not require the plaintiff to prove special or particular damage, the plaintiff must prove that he has suffered damage in order to succeed in his claim. As stated earlier, and derived from the definition of nuisance itself, the tort protects a person from two types of damage or interference – interference with the use, comfort or enjoyment of his land, and physical damage has materialized, the plaintiff must prove that there has been substantial interference.

What constitutes substantial interference differs according to which of the two recognized types of damage or interference the plaintiff has suffered.

  1. Interference With The Use, Comfort Or Enjoyment Of Land

This interference is collectively known as an amenity nuisance. They result in a 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 depends on the fact and circumstances each case. A trivial interference does not give rise to nuisance. The court have held that the loss of one night’s sleep due to excessive noise, using adjoining premises for prostitution or a sex shop and persistent telephone calls all constitute substantial interference. There is no formula upon which a situation may conclusively be said to amount to substantial interference or otherwise. Decisions have to be made on a case-by-case basis, and the courts have to take into account, whether the plaintiff’s complaint is reasonably justified in the context of the surrounding circumstances.

In the case of Woon Tan Kan (Deceased) & 7 Ors v Asian Rare Earth Sdn Bhd the plaintiff residents of Bukit Merah village sued the defendants, principally for an injunction to restrain the company (ARE) from operating. The plaintiffs alleged that the acivities from the factory produced dangerous radioactive gases harmful to the residents of Bukit Merah. The court granted a quia timet injunction and held that private nuisance was established. It was also held that the plaintiff’s health was being affected harmfully, to a substantial degree.

In Dato Dr Harman Singh v Renal Link( KL) Sdn Bhd where the plaintiff’s had for eighteen years operated a clinic and hospital for the treatment of ear, nose and throat ailments. The defendant operated a renal clinic at which patients receive haemodialysis on the floor above the plaintiff’s clinic. The defendant was found liable for emitting from their clinic obnoxious fumes which escapes downwards into the plaintiff’s clinic. The plaintiff, his staff and patients were found to have suffered substantial damage ranging from skin diseases, red and swollen eyes, headaches, lethargy and breathing difficulties.

  1. Material Or Physical Damage To Land Or Property

Where actual physical damage to land occurs, the general principle is that it amounts to substantial interference and is therefore recoverable. But the actual physical damage is not recoverable automatically. The physical damage must be establish substantial in nature and it appears that what amounts to substantial interference is also a question of fact and determinable on a case by case basis.

As in the case Darley Main Colliery Co v Mitchell minor subsidence on the plaintiff’s land was not actionable. A clear example of substantial interference is found in Goh Chat Ngee & 3 Ors v Toh Yan & Anor. The defendant who held a mining licence carried on mining work on his land. The plaintiff whose land was adjacent to the defendant’s land alleged that through mining activities the defendants had committed negligence and nuisance. The mining activities constitute unnatural use of land as water had escaped and flooded the plaintiff’s land causing to collapse and sink, subsequently causing flooding , erosion and settlement. The court found that a landowner had a common law obligation not to interfere with the support structure of his neighbour’s land, which is provided under s44(1)(b) of the National Land Code 1965. The defendant had breached this statutory duty was also liable in nuisance for the unreasonable, unlawful and substantial interference with the use and enjoyment of his neighbour’s land.

Hotel Continental Sdn Bhd v Cheong Fatt Tze Mansion Sdn Bhd is another useful example. In this case the appellant who owned the hotel were building a 20-storey extension to their hotel. The respondent 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 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. The Court of Appeal, on the authority of Rapier v London Tramways Coheld that once the defendant’s activity constitutes an actionable nuisance in law, it is no defence that the defendant has taken all reasonable precautions to prevent it. In this case, although the piling works were temporary, it did not exclude the respondent right to an injunction as the physical damage to their property constituted a substantial interference which was actionable.

Unreasonableness

The first thing in establishing nuisance is to prove that the interference is substantial in nature. The plaintiff must prove the interference to be unreasonable. The unreasonableness of the defendant activity is the second requirement in establishing nuisance. The following factors have been used as guidelines by the courts in order to determine whether interference is unreasonable and therefore substantial and actionable.

There are two important points that have to be considered in these factors. One is that, unless otherwise stated; none of the factors are conclusive of whether the interference is unreasonable or otherwise. They are merely relevant consideration to be taken into account. Secondly because a substantial interference may amount to unreasonable interference and vice versa, quite often the court have held defendant’s activities as being actionable nuisance on the basis that they constituted both substantial and unreasonable interferences. It is important to realise that the two elements of nuisance are interconnected and interdependent.

There is no clear cut definition as to what constitutes unreasonable interference may be seen in the HOL decision in Hunter v Canary Wharf Ltd. The plaintiff claimed damages in respect of interference with their television reception for a period of two years, caused by the defendant’s nearby building which was 250 meters high. The court held that in the absence of an easement the mere presence of a neighbouring building did not give rise to an actionable nuisance. The court however, acknowledged that interference with television reception may amount to an amenity nuisance in appropriate circumstances. Generally, for an action in private nuisance to lie in respect of interference with the plaintiff enjoyment of his land, it has to arise from something emanating from the defendant’s land, examples being, noise, dirt, fumes, a noxious smell, vibration and such like.

  1. Damages and Location of the Plaintiff’s and Defendant’s Premises.

The location of the plaintiff’s and defendant’s [remises are relevant consideration in assessing whether the defendant’s activity is unreasonable and amounts to substantial interference.

In the case of St Helen Smelting Co v Tipping the plaintiff owned a rubber estate which was situated in an industrial area. The smoke from the defendant’s copper-smelting factory had caused considerable damage to the plaintiff’s trees. Lord Westbury LC distinguished between ‘sensible injury to the value of the property’ or ‘material injury’ and injury in term of personal discomfort. His lordship stated that the level of interference must be balanced with surrounding circumstances, and the nature of the locality must be taken into account. For instance a person cannot aspect the air in an industrial area to be fresh and clean as in the mountains. If however the interference causes physical damage to property, then the locality or surrounding circumstances is irrelevant. An occupier of land must be protected from physical damage no matter where he is. Location is therefore an important factor when the interference is merely to the use, comfort and enjoyment of land as opposed to the physical damage to property.

For non-physical damage, Lord Wright in the case of Sedleigh-Denfield v O’ Callaghan laid down the test of liability as being what is reasonable in accordance with common and usual needs of mankind in a society or in a particular area. His Lordship stated that a balance has to be maintained between the right of the occupier to what he likes with his own and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in a particular society.

This ‘balancing exercise in cases of non-physical damage was in plaintiff’s favour in Bliss v Hall. In this case, the defendants managed a factory for three years and during this time smoke, smell and other remittances came from the factory. The plaintiff moved into a house near the factory. In action against the defendant, the latter raised the defence that it (the factory) had been there before the plaintiff. The court held that a defence that an activity has been going on before an action is brought to halt the activity is inapplicable as the plaintiff too, had his right: one of which was the right to clean air.

Certainly in amenity nuisance cases, the location of the premises would give an indication whether the defendant’s activity actually constitutes an unreasonable and substantial interference to the plaintiff. What is regarded as excessive within that locality would generally be actionable. For instances in the case of Syarikat Perniagaan Selangor Sdn Bhd v Fahro Razi Mohdi & Ors, the appellant who had lease over a piece of land had agree and promised to use the land as a skating rink, restaurant and a cinema. The appellant subsequently built an open stage and staged some shows. He also opened a discotheque. The court held that people who lived in the urban are must be prepared to accept a lot of noise from their neighbour and he himself may make noise; but no one however, has the right to create excessive noise. Similarly a person is not required to tolerate an excessive level of noise which is unreasonable and is nuisance.

The general principle remains what is regarded as excessive in a particular locality would generally be accepted as unreasonable and amounts to a substantial interference. However the balancing of conflicting interest can sometimes give rise to unpredictable and unexpected outcome. Murdoch v Glacier Metal Co Ltd is one such case, where it was held that despite being exposed to continuous loud noise from a factory during the night , the plaintiff’s claim in nuisance could not succeed. The court found that there was no automatic common law nuisance when sleep was disturbed. In this case the proximity of the plaintiff’s property to a busy bypass played a role in negativing the actionability of the plaintiff’s claim.

  1. Public benefit of the defendant’s activity

If the object of the defendant’s conduct benefits the society generally, it is more likely that the conduct will not be deemed unreasonable. Nevertheless, the defendant’s activity which benefits the public will still constitute actionable nuisance if the activity causes damage to property or substantial interference to the plaintiff’s enjoyment of his land. So a claim


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