TORT II [nuisance notes]

AMALIA SULAIMAN UKM LAW SCHOOL 2020
TORT II: NUISANCE (KACAU GANGGU)
• A branch of law that gives protection to the land owner on the course of his own property.
• It is based on the unreasonableness of the defendant’s act.
• Damages can arise in many circumstances; eg: Plaintiff is facing damages towards his own
properties/proprietary or nuisance towards his own comfortness (well-being).
Types of nuisance:
1. Public nuisance
2. Private nuisance
PUBLIC NUISANCE
• Arises when there is interference with public rights.
• Eg: obstruction of public highways, air pollution, water pollution etc.
• Criminal offence and actionable tort
Attorney General v PYA Quarries [1957] 2 QB 169
Facts
The defendants operated a quarry and used a blasting technique which emitted large quantities of
dust and noise, as well as causing vibrations which interfered with the enjoyment of land for many
individuals in the area. The claimants sought an injunction preventing the continuation of a public
nuisance as a result. The defendant’s alleged that what was being carried out was in fact a private
nuisance which effected only those in the area and that they were therefore not bound by the
injunction prohibiting ‘public nuisance’ as a result.
Held
The blasting operation was capable of constituting a public nuisance and the injunction could be
granted to prevent it. Whilst it was difficult to precisely define the difference between a public and a
private nuisance, a public nuisance could be one which materially affected the reasonable comfort or
convenience of a class of Her Majesty’s subjects. What constitutes a ‘class’ of people within a
neighbourhood depends on the facts of any particular case and it is impossible to define the precise

number of individuals necessarily effected for them to be considered a ‘class’. Neither do all
individuals within the class have to be personally affected by the nuisance, as long as a representative
cross section have been so effected. A public nuisance is so indiscriminate in its effect that it could
not be reasonable to expect one person to take proceedings on their own to stop it. Instead, it was
the responsibility of the community at large, and that was what had occurred in this case. As such,
the injunction was granted.
MAJLIS PERBANDARAN PULAU PINANG V BOEY SIEW THAN (1978) 2 MLJ 156
Temporary- occupation-license (TOL)
Facts
The defendants were alleged to have made structural alterations to a building and to have used it as
a restaurant without the licence of the local authority. The local authority in this case brought an
action for an injunction to restrain the defendants to use the premises as an eating house and for
damages for nuisance. It also applied for and obtained a temporary injunction against the defendants.
The defendants applied to have the temporary injunction dissolved and also applied for an order that
the plaintiff's action be struck out.
Held
(1) if the alleged acts of the defendants amounted to a public nuisance then either the Attorney-
General could sue in respect of the public nuisance or his prior consent in writing must have been
obtained by two or more persons instituting the suit;(2) if the plaintiffs succeeded at the trial of the
action in proving the facts alleged in the statement of claim there could be no order for damages for
nuisance as the acts alleged could, if proved, only amount to a public and not a private nuisance. The
claim by the plaintiffs for damages for nuisance was therefore misconceived and unmaintainable;(3)
the plaintiff in this case could not sue the defendants without the prior consent in writing of the
Attorney-General;(4) the action should be dismissed with costs and the temporary injunction
dissolved
Hakim Gunn Chit Tuan:
“…it is clear that a 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.”

See: ZAINAP BT ABDUL MAJID & ORS V GAN ENG HWA & ORS (1995) 1 MLJ 801
PERSONS WHO MAY CLAIM [PUBLIC NUISANCE]
Criminal Proceeding:
Public Prosecutor on the behalf of the government
Section 268 (1) Penal Code: Public nuisance (…causes any common injury, danger, or annoyance to
the public…)
Civil Proceeding:
• [no special damage suffered by any particular individual]
Attorney General under Section 8 (1) Government Proceedings Act 1956 (GPA).
• [person who suffers special or particular damage]
Plaintiff has to prove that he suffered damage and injury over and above the ordinary inconvenience
suffered by the public at large.
The actions that could be taken against the defendant for public nuisance are:
• Injunction
• Declaration order
• Other reliefs
MAJLIS PERBANDARAN PULAU PINANG V BOEY SIEW THAN (1978) 2 MLJ 156
-In this case, the local authorities can take action in a public nuisance tort to obtain an injunction so
that the defendant cannot use his land for a restaurant without a license.
PACIFIC ENGINEERING V HAJI AHMAD RICE MILL (1966) 2 MLJ 142
Facts:
Plaintiffs carry on business selling equipment and construction machinery. The rice husk from the
defendant's mill rushed to the plaintiff's factory, causing the plaintiffs' workers to close their mouths
and nose. When there is a wind, the flying rice husk also causes the door to be closed. Plaintiff's
equipment and machinery were dusted and lubricants became dirty.

Held:
Plaintiffs succeeded in proving that he suffered a special injury in which he suffered personal
discomfort and property damage.
PRIVATE NUISANCE
• Unlawful, substantial and unreasonable interference with plaintiff’s comfort and enjoyment
of his land.
• Private nuisance protects the plaintiff from disruption/interference:
1. Disruption to the plaintiff's use / comfort in securing his land
2. Interference with physical damage to land.
TYPES OF DAMAGES CAUSED BY PRIVATE NUISANCE
1. Personal discomfort
Eg: Defendant turned the radio too loud every night which disrupts plaintiff’s sleep
2. Physical damage to land
Eg: Defendant’s tree branch trespassed to plaintiff’s land or the tree roots damaged the floor
tiles of plaintiff’s house.
DIFFERENCES BETWEEN PRIVATE AND PUBLIC NUISANCE
MPPP v BOEY SIEW THAN (1978) 2 MLJ 156
“…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 of the state. A private nuisance… is
one which disturbs the interest of some private individual in the use and enjoyment of his property by
interference with the usual enjoyment of property by causing or permitting the escape of deleterious
substances or things such as smoke, odours or noise.”
EVIDENCE OF DAMAGES: IS IT NEEDED?
Nuisance that is classified as NOT actionable per se MUST be be proven.
Nuisance involving personal discomfort, damages need not be proven (referring to several cases that
agrees with this statement.

WOON TAN KAN (DECEASED) &7 ORS v ASIAN RARE RED EARTH SDN. BHD. (1992) 4 CLJ 299
Facts:
The plaintiffs, residents of Bukit Merah village sued the defendants, primarily for an injunction to
restrain the defendant company (ARE) from operating and continuing to operate its factory which
activities the plaintiffs alleged produced dangerous radioactive gases harmful to the residents of Bukit
Merah. The High Court granted a quia timet injunction, and held that the tort of private nuisance was
established. Peh Swee Chin SCJ stated:
Peh Swee Chin J: …There must be substantial interference with the enjoyment of land…In a
nuisance of the kind involved in the present case, proof of actual damage, physical or
financialor personal injury is not required, the law presumes damage here…injury to health
need not be proved…once annoyance and discomfort is established.
ELEMENTS OF PRIVATE NUISANCE
• Substantial interference
HOTEL CONTINENTAL SDN. BHD. V CHEONG FATT TZE MANSION (2002) 3 AMR 3405
Facts:
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.
Held:
The Court of Appeal, on the authority of Rapier v London Tramways Co, held that once the defendant's
activity constitutes an acționable 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 respondents' right to an injunction as the physical damage to their property constituted
an (substantial) interference which was actionable.
• Unreasonableness
✓ Plaintiffs need to prove that the nuisance was unreasonable
✓ Whether or not that interruption is reasonable is not a question of fact
✓ In determining whether or not the nuisance is reasonable, several factors will be taken into
account:
i) the location of the plaintiff's premises and the defendant's premises are
relevant in considering whether the nuisance is reasonable.
ST. HELEN’S SMELTING CO. V TIPPING (1865) 11 HL CAS 642
The plaintiff's rubber estate is located in the industrial area. In this case the smoke released from the
defendant's factory damaged the plaintiff's rubber tree.

It is decided that the location factor is irrelevant when the disturbance involves physical damage to
the soil. This is because the landlord needs to be protected from physical damage, no matter where
he is. Location factors become relevant when disturbances cause personal discomfort (eg, noise,
noise).
SEDLEIGH-DENFIELD V O’CALLAGHAN [1940] AC 880 HOUSE OF LORDS
The council undertook some work on the defendant’s land at the request of a neighbouring
landowner. They had placed a culvert in a ditch to allow the water to drain away, however, they had
negligently placed a grate in the wrong place which rendered the grate useless and the culvert became
prone to blockages. The defendant’s workers had cleaned the culvert periodically over a three year
period to prevent blockages. However, a heavy rain storm caused a blockage and the ditch became
flooded. The flood spread to neighbouring property owned by the claimant and caused substantial
damage. The claimant brought an action in nuisance for the damage caused. The defendant argued
that he had neither consented to nor had knowledge of the existence of the culvert.
Held:
The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt or
continue the nuisance.
Lord Maugham:
“My Lords, in the present case I am of opinion that the Respondents both continued and adopted the
nuisance. After the lapse of nearly three years they must be taken to have suffered the nuisance to
continue; for they neglected to take the very simple step of placing a grid in the proper place which
would have removed the danger to their neighbour s land. They adopted the nuisance for they
continued during all that time to use the artificial contrivance of the conduit for the purpose of getting
rid of water from their property without taking the proper means for rendering it safe.”
STURGES V BRIDGMAN [1879] 11 CH D 852 COURT OF APPEAL
The defendant ran a confectionary shop which operated a noisy pestle and mortar. It had done so for
over 20 years but had no neighbouring property so there were no complaints as to its use. The
claimant then built a consulting room for his practice as a physician adjacent to the defendant’s noisy
shop. The claimant brought an action in nuisance to obtain an injunction to prevent the continuance
of the noise. The defendant, relying on the Prescription Act, argued that he had obtained the right to
be noisy by operating the noisy pestle for over twenty years.
Held:
The use of land prior to the construction of the consulting room was not preventable or actionable
and therefore it was not capable of founding a prescription right.

SYARIKAT PERNIAGAAN SELANGOR SDN BHD V FAHRO ROZI, MOHDI & ORS
The appellant who had a lease over a piece of land had agreed 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 area must
be prepared to accept a LL lot of noise from their neighbours 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 nuisance.
ii) Benefits to the public/ common benefit
If the defendant's actions benefit the public, such acts will not amount to unreasonable acts.
MILLER V JACKSON [1977]3 WLR 20 COURT OF APPEAL
The defendants were members of the Lintz Cricket Club. Cricket had been played at Lintz cricket
ground for over 70 years. The land was owned by the National Coal Board (NCB) who also owned some
fields surrounding the grounds. Four years prior to the action, the NCB sold one of the fields and a
development of Wimpey homes was put up in close proximity to the cricket ground. Mrs Miller
purchased one of the houses and brought an action against the cricket club seeking an injunction to
prevent them playing cricket at the ground. Initially quite a number of balls were hit over the houses.
However, in 1976 the cricket club erected a higher fence and the number of balls hit out was reduced
to nine over a two year period. There had been no personal injuries resulting from the balls but some
property damage had been caused which the cricket club had paid for. Mrs Miller complained that she
could not use her garden during matches and would often stay out of the house altogether.
Held:
The defendants were liable in both negligence and nuisance (Lord Denning dissenting)
However, Cumming Bruce LJ refused the injunction on the grounds that it would be inequitable to
grant an injunction given that the cricket ground had been used for so long and would be a loss to the
community and Mrs Miller received the benefit of being adjacent to an open space.
Lord Lane would have granted the injunction stating that the decision in Sturges v Bridgeman involves
the assumption that it is no defence for the defendant to show that they came to the nuisance.
PERBADANAN PENGURUSAN TAMAN BUKIT JAMBUL V KERAJAAN MALAYSIA
The defendant renovated some units in a flat managed by the plaintiff in order to set up a government
clinic. The plaintiff argued that the renovation was not only conducted without their approval, but
that caused pipe and drain blockages. Further, the renovated units intruded to the common five-foot
pathway, thereby causing nuisance. The court denied the plaintiff's claim. An inconvenience does not
necessarily give ice to an actionable nuisance. The purpose of the renovation provided substantial
public benefit. On the facts, the defendant had provided a new Eve-foot way and so no nuisance was
created in this aspect. On the issue of approval, it was found that consent was given to the defendant
by the plaintiff's predecessor and on the principle of equitable estoppel the plaintiff was estopped
from going back on the consent given by their predecessor.

iii) Duration of interruption.
The interruption should continue
-Only there are cases where there is a single incident.
SPICER V SMEE [1946] 1 ALL ER 489
A fire broke out on the defendant’s property caused by faulty wiring. The fire spread to neighbouring
property owned by the claimant. The claimant’s action for nuisance succeeded. The faulty wiring was
classed as a continuing state of affairs.
iv) Extraordinary sensitivity.
-If the plaintiff / his property has extraordinary sensitivity, the court will not allow the disturbance to
be brought against the defendant.
ROBINSON V KILVERT (1889) 41 CH D 88 COURT OF APPEAL
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:
The defendant was not liable. The damage was due to the special sensitivity of the paper.
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."
iv) Defendant's intentions
If the malice is proved behind the defendant's actions, the defendant's harassment will be considered
a nuisance even if the harassment is reasonable.
CHRISTIE V DAVEY (1893) 1 CH 316
The claimant was a music teacher. She gave private lessons at her home and her family also enjoyed
playing music. She lived in a semi-detached house which adjoined the defendant’s property. The

defendant had complained of the noise on many occasions to no avail. He took to banging on the walls
and beating trays and shouting in retaliation.
Held:
The defendant’s actions were motivated by malice and therefore did constitute a nuisance. An
injunction was granted to restrain his actions.
HOLLYWOOD SILVER FOX FARM V EMMETT [1936] 2 KB 468
The claimant bred silver foxes for their fur. Silver foxes are particularly timid and if disturbed when
pregnant they are prone to miscarry. If alarmed when they have young they may devour them. The
defendant was the claimant’s neighbour. He objected to the fox farm and fired a gun on his own land
close to the breeding pens with the intention to scare the foxes and impede breeding. The claimant
brought an action in nuisance.
Held:
The defendant was liable despite the abnormal sensitivity of the foxes because he was motivated by
malice.
WHO IS ENTITLED TO A LAWSUIT?
Because the purpose of the law is to protect the interests of a person on his land, whether in the use
/ enjoyment of his land, the person who can sue is the one who has an ownership interest / interest
in another form such as possession (ownership) -Malone Case cistern
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 a proprietary interest in the house. Her husband was a mere
licensee through his employment as a manager.
KHORASANDJIAN V BUSH [1993] 3 WLR 476
The claimant was an 18 year old woman who was being harassed by the defendant a 23 year
old man. He had threatened her with violence, behaved aggressively when he saw her,
shouted abuse at her, he would pester her with phone calls at her parents and grandparents
house. He had spent time in prison for threatening to kill her. She obtained an injunction in
civil law against him to prevent him “using violence to, harassing, pestering or
communicating” with her. The defendant appealed against the injunction on the ground that
the judge had no jurisdiction to grant such an injunction as harassing, pestering or
communicating did not constitute any tort known to law. Whilst the persistent telephone calls
were capable of constituting the tort of nuisance, the claimant did not have an interest in the
land and therefore had no cause of action in tort law.
Held:

His appeal was dismissed.
Dillon LJ:
“To my mind, it is ridiculous if in this present age the law is that the making of deliberately
harassing and pestering telephone calls to a person is only actionable in the civil courts if the
recipient of the calls happens to have the freehold or a leasehold proprietary interest in the
premises in which he or she has received the calls.”
RoseLJ & Dillon LJ:
To my mind, it is ridiculous if in this present age the law is that the making of deliberately harassing
and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the
calls happens to have the freehold or a leasehold proprietary interest in the premises in which he or
she has received the calls… The court has at times to consider earlier decisions in the light of changed
social conditions… If the wife of the owner is entitled to sue in respect of harassing telephone calls,
then I do not see why that should not also apply to a child living at home with her parents.
Dissenting judgment
Gibson LJ: I know of no authority which would allow a person with no interest in land or right to occupy
land to sue in private nuisance. Given that the purpose of an action in nuisance is to protect the right
to use and enjoyment of land, it seems to me to be wrong in principle if a mere licensee or someone
without such right could sue in private nuisance.
HUNTER V CANARY WHARF [1998] 1 WLR 434 House of Lords
690 claims were made against Canary Wharf ltd. The claimants lived in the Isle of Dogs and complained
that the erection of the Canary Wharf Tower interfered with their television reception. In addition, a
second action against London Docklands Development Corporation involved 513 claims for damages
in respect of excessive amounts of dust created during the construction of the tower. Some of the
claimants were owners or tenants of properties, but many of the claimants had no proprietary interest
in lane at all. Some were children living with parents, some were relations or lodgers with use of a
room and some were spouses of the tenant or owner of the property. The two issues the House of
Lords were required to consider were:
1. Whether interference with television reception was capable of giving rise to an actionable
nuisance
2. Whether an interest in property was required to bring an action in
Held:
1. There is no right of action in nuisance for interference with the television reception.

2. An interest in property is required to bring an action in nuisance. Khorasanjian v
Bush overruled in so far as it holds that a mere licensee can sue in private nuisance.
Lord Hoffman:
“In this case, however, the defendants say that the type of interference alleged, namely by the
erection of a building between the plaintiffs' homes and the Crystal Palace transmitter, cannot as a
matter of law constitute an actionable nuisance. This is not by virtue of anything peculiar to television.
It applies equally to interference with the passage of light or air or radio signals or to the obstruction
of a view. The general principle is that at common law anyone may build whatever he likes upon his
land. If the effect is to interfere with the light, air or view of his neighbour, that is his misfortune. The
owner's right to build can be restrained only by covenant or the acquisition (by grant or prescription)
of an easement of light or air for the benefit of windows or apertures on adjoining land.”
In relation to planning permission:
"In a case such as this, where the development is likely to have an impact upon many people over a
large area, the planning system is, I think, a far more appropriate form of control, from the point of
view of both the developer and the public, than enlarging the right to bring actions for nuisance at
common law. It enables the issues to be debated before an expert forum at a planning inquiry and
gives the developer the advantage of certainty as to what he is entitled to build."
WHO CAN CLAIM?
1) THE PERSON WHO CREATED THE NUISANCE
The person causing the disorder is not necessarily:
i) the occupants
ii) landlord or
iii) have an interest in the land
MARCIC v THAMES WATER UTILITIES LTD (2002) 2 All ER 55
2)DEFENDANT'S COMPANY RESPONSIBLE FOR WASTE DISPOSAL WHERE PLAINTIFF RESIDES IS
RESPONSIBLE FOR DAMAGE TO PLAINTIFF'S HOME CAUSED BY DEFENDANT'S DISTURBANCE.
Residents are responsible for the disturbance they cause and the disturbance caused by:
A. WORKERS - BASED ON THE PRINCIPLE OF DEPENDENCY SHIFTING
B. INDEPENDENT CONTRACTOR- BASED ON THE PRINCIPLE IN THE CASE OF BOWER V PEATE &
MATANIA V THE NATIONAL PROVINCIAL BANK LTD.

BOWER V PEATE (1876) 1 QBD 321
Cockburn CJ: A man orders work to be executed from which in the natural course of things injurious
consequences to his neighbour must be expected to arise unless means are adopted by which such
consequences may be prevented, is bound to see to the doing of that which will prevent the mischief
and cannot relieve himself of his responsibility by employing someone else. Whether it be the
contractor employed to do the work from which the danger arises, or some other independent person
to do what is necessary to prevent the act he ordered to be done from becoming wrongful.
MATANIA V THE NATIONAL PROVINCIAL BANK LTD. (1936) 2 ALL ER 633
In this case, the occupier rented out his property to a professor of singing for the purposes of carrying
on his profession on the demised premises. The occupier allowed another tenant, under the terms of
his lease, to carry out various works in the building which made it impossible for the C to carry on his
profession for few months.
Held: Action was successful. The occupier could be held liable for an independent contractor if the
nuisance was foreseeable.
C. A TRESPASSER
If the resident knows / should have known about the nuisance created by the intruder but did not take
reasonable steps to eliminate the disturbance. If the occupants do not have knowledge of the nuisance
created by the intruder, the occupier will not be liable.
SEDLEIGH DENDIELD V O’CALLAGHAN (1940) 3 ALL ER 349
Defendants are liable for the nuisance created by the intruder because they have knowledge of the
nuisance.
Lord Wright: The liability for a nuisance is not, at least in modern law, a strict or absolute liability… it
has, I think, been rightly established in the Court of Appeal that an occupier is not prima facie
responsible for a nuisance created without his knowledge or consent. If he is to be liable, further
condition is necessary, namely that he had knowledge, or means of knowledge, that he knew or should
have known of the nuisance in time to correct it and obviate its mischievous effects.

D. LICENSEE- THE PRINCIPLE IS THE SAME AS THE LIABILITY FOR THE DISORDER CREATED BY THE
TRESPASSER.
LIPPIATT v SOUTH GLOUCESTESHIRE COUNCIL (1999) 4 ALL ER 149
Residents are liable for any disturbance created by the licensee because they have knowledge of its
existence. The defendant had failed to remove travellers who had encamped on its land and caused
nuisances against neighbouring farmers.
Held: The court refused to strike out a claim in nuisance by neighbouring land owners. It was arguable
that a land owner can be liable for repeated acts constituting nuisance committed from its land by
those it knew were in occupation, and where no steps were taken to evict them. It was its own land
from which a continuing nuisance emanated.
E. NATURAL CAUSES- PRINSIP YG SAMA TERPAKAI DGN KACAU GANGGU YG DISEBABKAN OLEH
TRESPASSER / LICENSEE
GOLDMAN V HARGRAVE [1967] Ch 645 Privy Council
A 100 foot red gum tree on the defendant’s land was struck by lightning and caught fire. The
following morning the defendant contacted a tree feller to cut down the tree saw it into
sections. The wood was still smouldering and the defendant failed to douse it with water to
eliminate the risk of fire. Over the next few days the weather became very hot and reignited
the fire which spread to neighbouring property.
Held:
The defendant was liable for the naturally occurring danger that arose on his land as he was
aware of the danger and failed to act with reasonable prudence to remove the hazard.
NOBLE V HARRISON (1926) 2 KB 332
A tree shed a limb onto a passer-by, causing personal injury. The Court of Appeal reversed the original
finding in favour of the claimant because the defect could not have been discovered by inspection. A
land-owner may become liable for a naturally occuring danger arising on his land if he fails to remedy
it within a reasonable time of being made aware of it, or from when he ought to have been aware of
it. Rowlatt J said: ‘a person is liable for a nuisance constituted by the state of his property: (1) if he
causes it; (2) if by neglect of some duty he allowed it to arise; and (3) if, when it has arisen without his
own act or default, he omits to remedy it within a reasonable time after he did or ought to have
become aware of it’. However: ‘I see no ground for holding that the owner is to become an insurer of

nature, or that default is to be imputed to him until it appears, or would appear upon proper
inspection, that nature can no longer be relied upon . .’
F. DISTURBANCE CAUSED BY PREVIOUS OCCUPANTS- IT ALSO DEPENDS ON THE KNOWLEDGE
POSSESSED BY THE OCCUPANTS.
ST.ANNE’S WELL BREWERY CO. V ROBERTS (1920) 140 LT 1
Scrutton LJ: It appears to me that the cardinal thing which would have to be prove to establish any
what would any liablity against anybody would be knowledge of the defect which ultimately resulted
in the fall or failure.
To use reasonable care to ascertain what he should have ascertained.
3) LAND OWNER
- Landlords who have given up their position and control over others cannot be held responsible for
the nuisance that exists on the premises.
-There are situations where the landlord will be liable:
A. IF HE JUSTIFIES THE DISTURBANCE. THE LANDLORD IS CONSIDERED TO ALLOW THE NUISANCE IF
THE INCIDENT IS A NATURAL ONE DUE TO THE LEASE OF THE LAND.
- If the tenant creates a nuisance by breaking the agreement with the landlord, the landlord will not
be liable.
SMITH V SCOTT (1973) 1 CH 314
Lewisham Borough Council acquired property next door to the claimants’ home in order to
house homeless families. The Council placed a troublesome family in the property who
committed several acts of nuisance against the claimants. The council knew the family were
troublesome although the terms of the tenancy agreement prohibited acts of nuisance by the
tenants.
Held:
The Council were not liable for the acts of the tenants. Whilst they were aware that the family
might commit acts of nuisance, they had not authorised the nuisance.
Vice-Chancellor:
"In general, a landlord is not liable for nuisance committed by his tenant, but to this rule there
is, so far as now in point, one recognised exception, namely, that the landlord is liable if he
has authorised his tenant to commit the nuisance… The exception is not based on cause and

probable result, apart from express or implied authority. In the present case, the corporation
let No. 25, Walpole Road to the Scotts as a dwelling house on conditions of tenancy which
expressly prohibited the committing of a nuisance, and, notwithstanding that the corporation
knew the Scotts were likely to cause a nuisance, I do not think it is legitimate to say that the
corporation impliedly authorised the nuisance."
PAGE MOTORS LTD. V EPSOM & EWELL BOROUGH COUNCIL (1982) LGR 337
The claimant ran a car sales business. There was open land adjacent to their business
premises, which was owned by the defendant Council. Gypsies moved onto the land and
caused nuisance to the claimant in various forms including the burning of rubber, failure to
control dogs, obstructing access and damaging the fences.
Held:
The council were liable as they had an immediate right of possession of the land. The council
had adopted and continued the nuisance as their motive for not enforcing a possession order
was the possibility of the gypsies moving to another site within the borough.
Ackner LJ:
"It is of course common ground that the council owned the land upon which the gypsies
created the nuisance. They had an immediate right to possession of that land and were in a
position in law, and indeed in fact to control the property. The responsibility, if any, which
attaches to them in these circumstances is by virtue of their being the occupiers of that land.
..In my judgment the judge was wholly correct in concluding that the council adopted and
continued the nuisance constituted by the activities of the gypsies on the Nonsuch Estate. He
stated that a ´primary motive' for not enforcing the possession order was the possibility that
the gypsies might have moved to another site within the borough. That was making use of
the gypsy encampment on the Nonsuch Estate, even though the motive may merely have
been to buy time to enable a solution to be found. He rejected, rightly in my judgment, the
submission of Mr. Schiemann, for the council, that a defendant cannot be held to have
´adopted' a nuisance unless there is proved a positive desire on his part to use for his own
benefit that which is causing a nuisance to the plaintiff. He concluded that by not taking steps
to remove the gypsies from the Nonsuch Estate the council were enabled to contain the
borough council's gypsy problem during the five-year period described above and which
elapsed before the solution was found. That they were allowing the site to be used as an
unsupervised caravan site pending a decision as to the removal of the gypsies is clear from
the evidence of Mr. Schofield, the only officer of the council to give evidence. He confirmed
that a water supply was made available to the gypsies by the provision of a standpipe, and
skips were put on the site, presumably at convenient points, for the disposal of their refuse.
Moreover so far as sewage disposal was concerned, there were disposal points for the
contents of elsans and these were dealt with from time to time by the council."

TETLEY V CHITTY (1986) 1 ALL ER 663
The Medway Borough Council dikenakan tanggungan bagi kebisingan akibat aktiviti go-kart yg
diwujudkan oleh penyewa kerana kebisingan itu merupakan sesuatu yg biasa @ semulajadi yg
disebabkan aktiviti go-kart di atas premis itu dan tuan punya tanah telah memberikan kebenaran sama
ada secara nyata/tersirat ke atas kacau ganggu yg berlaku.
B. JIKA TUAN PUNYA TANAH MENGETAHUI/SEPATUTNYA MENGETAHUI TENTANG KEWUJUDAN
KACAU GANGGU SEBELUM PENYEWAAN.
BREW BROTHERS LTD. V SNAX (ROSS) LTD. (1970) 1 QB 612
The court considered the extent to which the nature of a building affected the duty to repair under a
lease.
Sachs LJ said: ‘It seems to me that the correct approach is to look at the particular building, to look at
the state which it is in at the date of the lease, to look at the precise terms of the lease, and then come
to a conclusion as to whether, on a fair interpretation of those terms in relation that that state, the
requisite work can fairly be termed repair. However large the covenant it must not be looked at in
vacuo.’
C. IF THE LANDLORD HAS AGREED TO REPAIR / HAVE THE RIGHT TO ENTER THE PREMISES TO MAKE
REPAIRS
-Look at the degree of control that the landlord has.
If the landlord does not have the right to enter a rented premises to inspect the condition of the
premises, then he or she will not be liable for any disturbance.
But if the landlord has the right to enter premises for the purpose of maintenance / repair, he shall be
liable even if he did not know about the damage OR nuisance that has arisen.
In the event that the landlord has taken responsibility for the repairs of the premises @ still have the
right to enter the premises for the purpose of repairs, the tenant will also be liable as tenant.

DEFENCES
1. Prescription / acquiesence / acceptance.
This defence was applied in England where a disturbance has taken place for 20 years and the plaintiff
has not taken action against the defendant.
STURGES V BRIDGMAN (1879) 11 CH D 852
The defendant ran a confectionary shop which operated a noisy pestle and mortar. It had
done so for over 20 years but had no neighbouring property so there were no complaints as
to its use. The claimant then built a consulting room for his practice as a physician adjacent
to the defendant’s noisy shop. The claimant brought an action in nuisance to obtain an
injunction to prevent the continuance of the noise. The defendant, relying on the Prescription
Act, argued that he had obtained the right to be noisy by operating the noisy pestle for over
twenty years.
Held:
The use of land prior to the construction of the consulting room was not preventable or
actionable and therefore it was not capable of founding a prescription right.
2. Statutory power
- if the defendant does an activity under the power given by the statute, the defendant will not be
liable even if the activity caused a disturbance.
-But the defendant must prove that the interference was inevitable.
-Testing: Is it possible to avoid the disturbance if reasonable steps were taken?
GOH CHAT NGEE & 3 ORS V TOH YAN & ANOR(1991) 2 CLJ 1163
Defendants must prove that the disturbance was unavoidable even if reasonable precautions were
taken.
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.

TORT II [nuisance notes]

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TORT II [nuisance notes]