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Nuisance

The law of nuisance is one branch of law which purpose is to provide comfort to persons who have proprietary interest in land and to members of society generally through environmental conditions. The law of  nuisance is concerned with the balancing of competing interests.

Nuisance distinguished

1)    Nuisance and trespass to land

Nuisance and trespass to land do not overlap. Only a direct act may give rise to an action for trespass to land whereas a cause of action in nuisance may be maintained in cases of consequential harm.

Government of Malaysia & Anor v Akasah b Ahad

F:P operated a petrol station. D then built a federal highway which was on higher ground than the petrol station and the road to petrol station had to be closed. D offered to built a road to the petrol station with a different route but the P refused. In this case of nuisance, the court held that P had failed to prove nuisance.

H:The court stated that nuisance is  of a bigger class than trespass with regards to the differences.

 

An act of nuisance or trespass depends on whether there is a direct physical interference. Trespass is direct entry on a person’s land and is actionable per se. Nuisance is interference to P’s interest over his property and does not require entry by the D and to succeed P need to prove special damage.

Trespass to land is interference with possession of land whereas nuisance is interference with the use of land.

2)    Nuisance and negligence

There may be an overlap between nuisance and negligence as a negligent act may also give rise to nuisance. However this does not mean that negligence is a prerequisite in action for nuisance.

Example: landowners owe their neighbours a duty not to disturb or withdraw natural right to support, a breach of which gives rise to a cause of action in negligence is a prerequisite in an action for nuisance.

Wisma Punca Emas Sdn Bhd v Dr Donal

F: D was doing some construction job beside the P’s clinic. As a consequence of these activities, the P’s wall cracked and titled. D contended that he had taken all reasonable precautions.

H:Court allowed P’s claim and granted him damages. D appealed and contended that the main issue in the case was one of negligence and since nuisance was not specifically pleaded, the appeal should be allowed. Supreme court held that negligence is not a requirement in nuisance actions and therefore P need not prove any negligence in a nuisance case. All that is necessary to proof is special damage which would be damage to his property due to the activities of the defendant on the adjoining land. In the context of this case the court held that it was the same as saying that the claim was based on nuisance. The appeal was accordingly dismissed.

 

3)    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 D’s land onto the P’s land causing damage to the P. This itself may rise to an action for nuisance but not necessarily so.

In action for nuisance generally the interference must be something that is continuous, whereas an action under the rule of Rylands V Fletcher  one single act of interference is sufficient.

Rule in Rylands v Fletcher applies only to cases where there has been some special use of land bringing with it increased danger to others. It does not extend to damage caused to adjoining owners as the result of the ordinary use of land.

Damage and Remedies

The harm or damage usually occurs in nuisance cases are of 2 types:

1) damage to property( easily indentifiable) and

2) interference to personal comfort  which is specific to the tort of nuisance .

Damage to property is self explanatory. However, it also includes nuisance by encroachment on a neighbour’s land. The measure of damages for both instances is the diminution in the value of the land which will usually be the coast of reinstatement. Pure economic loss in the form of the fall in the value of the land has been held to be recoverable.

Remedy usually sought in a claim for nuisance is an injunction which function is to prevent nuisance from continuing or monetary compensation which is usually granted for damage to property.

Pacific Engineering Ltd v Haji Ahmad Rice Mill Ltd

H: stated that a person injured by a nuisance may bring an action and claim damages for the injury alone or together with a claim for an injunction.

 

A person or group of persons affected by the activities conducted by another on the latter’s land may choose to lodge a report to particular authorities. This last remedy is widely used as there are many organisations and government bodies whose activities are statutorily governed. Damage must be proved in an action for nuisance for otherwise the action will fail. The damage must be of a kind that is reasonably foreseeable to arise from the defendant’s wrongful conduct.

Actual damage need not be established if the nuisance is caused by the smell and it has been held that injury to health is not necessary ingredient in the cause of action for nuisance by smell as the interference here is something that substantially affects the senses or the nerves.

The concept of reasonableness

The reasonableness or otherwise of the D’s activity or act is central in nuisance cases because only when the interference is deemed unreasonable will nuisance be established. Reasonableness in nuisance does not mean whether D has taken adequate precautions to avoid the risk of accident.  In tort of nuisance, reasonableness is measured by balancing the rights and interests of both parties which is a process of compromise.

The meaning and scope of reasonableness is wider in nuisance than in negligence. Reasonableness is not limited to the defendant’s conduct but extends beyond that to include the effects and consequences of his conduct.

Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi Mohdi & Ors

H: almost everyone of us has to tolerate a certain amount of interference from our neighbours and we in turn have right to make a certain amount of noise in the employment of our property. So the ordinary use of a residential property is not capable of amounting to nuisance.

 

Ordinary use of a residential property is not capable of amounting to nuisance.

Southwark London BC v Mills & Ors, Baxter v Camden London BC [1999] 4 All ER 449 HL

F: P affected by noise made by other tenants, not due to their unreasonable behavior but due to poor soundproofing.

 

Sampson v Hodson-Pressinger [1981] 3 All ER 710 CA

F: due to flawed construction of roof terrace, its ordinary use caused excessive noise and was an actionable nuisance.

 

In determining the existence of nuisance requires the striking of balance between on the one hand, the right of one part to use his property for his own lawful use of enjoyment and on the other, and the right of other party to the undisturbed enjoyment of his property.

 

MBf Property Services Sdn Bhd v Madihill Development Sdn Bhd (No 2) [1998] 4 CLJ 136

H:There is no universal or precise formula available, but a useful test for measuring the reasonableness of the defendant’s activity is what is accepted as reasonable according to the ordinary usage of land of others living in that particular society.

Reasonableness cannot be determined with accuracy. Whether an activity amounts on other factors such as the purpose of the defendant’s conduct, location, time, extent of damage, the way in which the interference occurs, motive and malice, the effect of the interference  and whether it is continuous or in stages or intermittent.

Categories of nuisance

Nuisance is divided into main categories:                     1) public nuisance which is a crime as well as a tort

2)  private nuisance which is a tort.

 

Public Nuisance

Arises when there is an interference with public rights such as the obstruction of public highways or the selling of contaminated food. A set of facts giving rise  to an action for negligence and a defendant may well be sued for both torts in the alternative; an example being cases of obstruction on public highways.- Lim Kar Bee v Abdul Latif bin Ismail [1978] 1 MLJ 109.

 

The mere fact that an obstruction has occurred or that there is an inconvenience does not of itself turn into a nuisance. Nuisance would only be created if knowing or having the means of knowing of its existence, a person allows it to continue for an unreasonable time or in unreasonable circumstances.

Gillingham Borough Council v Medway (Chatham) Dock Ltd [1992] 3 WLR 449, at 458)

The D’s conduct need not be independently unlawful, but it is the effect of his conduct on the P that is considered.

Other public interests protected by the tort of public nuisance include public comfort, safety and health although the last type of interest is now statutorily governed.

1)Definition of public nuisance

Attorney- General v PYA Quarries Ltd

H: public nuisance arises when an act materially affects the reasonable comfort and convenience of life of a class of the society.

 

Majlis Perbandaran Pulau Pinang v Boey Siew Than & Ors:

H: it is clear that a public nuisance, if, within its sphere, which is the neighbourhood, it materially affects the reasonable comfort and convenience of a class of the subjects of the state.

 

The number of persons required to constitute “a class of the subjects of the state” is a question of fact in each case. It is not necessary that every single member of the society is affected.

 

2) Public nuisance is also a crime

A public nuisance is crime as well as tort. A person who is found guilty of public nuisance maybe subjected to criminal sanction.

3)Person who may claim

a) Criminal proceeding

If it is a criminal proceeding, prosecution lies at the instance of the public prosecutor on behalf of the government.

b) Civil proceeding- person who suffers special or particular damage

Public nuisance is not necessarily an interference with the P’s use and enjoyment of his land. P who wishes to sue for public nuisance need not have an interest in land in order to be entitled to claim. A person who has suffered special damage can claim for damages for public nuisance therefore P need to prove that he has suffered damage and injury. This is to prevent multiplicity of actions, which would be harsh on the D.

Following factors may be used as guidance to determine the existence of special or particular damage:

1)    The type of extent of damage is more serious. In essence the P must suffer more than what is suffered by other persons who are exposed to the same interference. Personal injury or damage to property would fall under special or particular damage.

2)    The damage must be a direct consequence and is substantial. An example o direct damage is when a P suffers breathing problems due to the defendant’s smoke pollution.

Pacific Engineering v Haji Ahmad Rice Mill:

F: P was in the business of selling heavy earth equipment and construction equipment, namely heavy factors and industrial forklift trucks. Padi husk from the D’s factory fly over the P’s premises and P’s workers had to cover their mouths and noses to prevent themselves from inhaling the dust. The P’s lubricant oil also became dirty due to the dust from the padi husk.

H: In an injunction against the D, court held that there was no law in this country as in England, whereby a proceeding may only be instituted upon the consent of the Attorney- General for public nuisance cases. The court further held that in an action for public nuisance, a P may institute proceedings without obtaining prior consent from the Attorney- General if he has suffered special damage. In this case the P had proved that they suffered personal discomfort therefore an injunction preventing the D from burning the rice husks in the compound of their premises was granted.

 

c) Civil proceeding- no special damage suffered by any particular individual

Section 8 (1) of the Government Proceedings Act 1956 (GPA) provides that the Attorney- General, or two or more persons who have obtained written permission from the Attorney-General, may institute a suit in public nuisance for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.

Koperasi Pasaraya Malaysia Bhd v Uda Holdings Sdn Bhd & 41 Ors:

H: in a relator action for public nuisance, consent must first be obtained from the Attorney-General. In this case the action failed as the P did not obtain such consent. Court additionally held that in a relator action brought under s.8(1) of the GPA, the P must prove special damage arising from public nuisance.

The requirement of the Attorney-General’s consent as laid down in s.8(1) of the GPA need not however, be met if the claim is brought by a local authority in the public interest.

MPPP v Boey Siew Than:

F: P local authority brought an action for an injunction to restrain the D from using their premises as a restaurant without having obtained a licence from the P and for damages of public nuisance.

H:High court held that the P could not sue the D without the written consent of the Attorney- General. On appeal from the P’s, the federal court held that since the P had commenced its action based on S.80 of the Local Government Act 1976 which allowed a local authority to take action in its own name and it therefore released the local authority from the obligation stipulated under s.8(1) of the GPA. This release was said to be in the interests of justice and of the proper functioning of the P as a local authority.

D. Private nuisance

 

Definition

 

Meaning:

Read v Lyons & Co Ltd [1945] KB 216 at 236
– an unlawful interference with a person’s use comfort enjoyment and any interest that a person may have over his land. Read v Lyons & Co Ltd [1945] KB 216 at 236

–        Accepted by Hiap Lee Brickmakers Ltd v Weng Lok Mining [1974] 2 MLJ 1 PC.

 

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 interferes with the p’s enjoyment of his land.

 

MPPP v Boey Siew Than – laid down the difference between public and private nuisance:

 

“ a nuisance is a public nuisance, if, within its sphere, which is the neighbourhood , it materially affects the reasonable comfort and convenience of a class of the subjects o the state. A private nuisance … is one which disturbs the interest of some private indv in the use and enjoyment of property by causing or permitting the escape of deleterious substances or things such as smoke, odours or noise. The diff between a public and private nuisance is that, in regard to the former , rights which are common to all subjects are infringed. Such rights are unconnected with the possession of or title to immovable property.

 

In an action for private nuisance :

P must prove interference with the enjoyment of his land.

P must have an interest in land to be able to sue in private nuisance. ( public nuisance does not require P to have any interest oer land)

Persons having interest over land: landowner, tenant, licensee etc.

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