Analysis of Private Nuisance in Tort Law: Case Study and Application

This report analyzes a case involving private nuisance in tort law, focusing on the conflict between Pete, the plaintiff, and Abe Development Pty Ltd (ADPL), the defendant. The core of the case revolves around ADPL's alleged unreasonable interference with Pete's property rights, leading to property damage and amenity damages. The assignment identifies the cause of action as private nuisance, detailing the elements required to establish it, including title to sue, unreasonable interference, and the presence of damages. It examines the relevant Australian common law, including key cases like Halsey v Esso Petroleum Co Ltd and St Helen's Smelting Co v Tipping, to define nuisance and its various forms. The application of the law to the given scenario demonstrates how ADPL's actions, such as the kitchen exhaust causing damage and the loud music disrupting Pete's enjoyment, constitute private nuisance. The report concludes that Pete has a strong case against ADPL, potentially entitling him to remedies such as an injunction or compensation for damages. The report also acknowledges the limitations in clearly defining the area of intervention from structures on land in nuisance cases.

Tort law

Table of Contents
Identification of the Parties..........................................................................................................3
Identification of particulars: alleged wrongdoings and injuries suffered....................................3
Identification of Cause of Action................................................................................................3
Identification of elements of Cause of Action.............................................................................3
Identification of the Law regulating the elements of Cause of Action........................................4
Application of the Law to the given case scenario......................................................................8
Conclusion.................................................................................................................................10
Bibliography..............................................................................................................................11

Identification of the Parties
In the present case
Pete – Plaintiff
Abe Development Pty Ltd (ADPL) – Defendant
Identification of particulars: alleged wrongdoings and injuries suffered
Injury of the Pete –
 Property damage – damages to the furniture
 Amenities damages – incapable of using and enjoying apartment
Wrongdoing by Abe Development Pty Ltd –
 The place of kitchen exhaust of Waffle assists in direct and significant damages to
furniture of Pete.
 Loud music was played by Abe Development Pty ltd during ceremonies, and it was
conducted from midday to midnight. Especially on weekends, when Pete wants to relax,
but due to loud music, he cannot enjoy his apartment.
Identification of Cause of Action
The main aspect that enables Pete to bring action against ADPL is Private Nuisance. It refers to
an illegal interference by neighbor with use or enjoyments of property.
Identification of elements of Cause of Action
 Title to Sue
 Unreasonable interference with lawfully recognized right attached to the property

 There should be a presence of damages, and it may be substantial damages or
unreasonable interference with enjoy or use of land.
Identification of the Law regulating the elements of Cause of Action
According to the common law of Australia, a person has fundamental property right. Normally,
the owner of the land has right to enjoy their property. If a person unreasonably interferes with
the right to enjoy, consisting by creating smells, pollution, sounds, or any other type of damages
that extends past the boundaries of property, then such interference refers as nuisance1. There are
two types of nuisance, such as public nuisance and private nuisance. Public nuisance refers as
unreasonable interfere with rights of public property. It consists of carrying out activities that
disrupt health of public, security, peace, or accessibility2 On the other hand, private nuisance is
referred to as illegal interference with the use or rights of property of a person, by which such
person cannot enjoy their land ( Hargrave v Goldman)3. A private nuisance consists of noise,
smoke, vibration, dust, and fragrance, any activity that results in reasonable fear for safety of
occupier, disruption in water supply, interference with wall or land, and many others4. However,
for claiming any legal action against nuisance, it is required that interference must be significant
1 Hamed R. Moftakhari,, et al. ‘Cumulative hazard: The case of nuisance flooding (2015).’ 5.2
Earth's Future 214-223.
2 Isaiah Andrews, and Mikusheva Anna. ‘Conditional inference with a functional nuisance
parameter.’(2016) 84.4 Econometrica 1571-1612.
3 Hargrave v Goldman (1936) 110 CLR 40, 49
4 Thomas T Liu., Nalci Alican, and Falahpour Maryam. ‘The global signal in fMRI: Nuisance or
Information?.’ (2017) 150 Neuroimage 213-229.

and unreasonable as in the case of Munro v Southeren Dairies Ltd (1955)5. Some of the elements
that are relevant for reasonableness are as follows –
 Nuisance is based on where happening such as residential areas, industrial areas, and
areas are disposed to noise, dust.
 Time and duration is another factor to determine unreasonableness. In the case of Wherry
v KB Hutcherson Pty Ltd, nuisance due to construction work at residential area is
considered as unreasonable6.
 Nature of operations is also considered for the ascertainment of reasonableness, whether
it is essential for community7.
 Whether the defendant can prevent nuisance by application of some other alternatives.
Another element of private nuisance is interference with interest in property capable of
protection. By possessing use and enjoyment of property is considered as an interest capable of
protection. In case of Hasley v Esso Petroleum co ltd, owner has right to occupation by the
proprietorship. In addition to this access of property is a use or luxuries of that land is also
considered as interest capable of protection by nuisance. Further, applicant’s title to use is
another aspect of private nuisance. A nuisance is related with interference with use and
enjoyment of right on property, the applicant has sufficient interest in that use to have
designation to sue. There are two types of occupation of land such as exclusive possession and
only license.
5 Munro v Southern Dairies Ltd [1955] VLR 332.
6 Wherry v KB Hutcherson Pty Ltd [1987] Aust Torts Reports 80-107
7 Hamed R Moftakhari., et al. ‘What is nuisance flooding? Defining and monitoring an emerging
challenge.’ (2018) 54.7 Water Resources Research 4218-4227.

Along with the above aspect, private nuisance also provide right by a person to raise a claim for
damages or remedies to prevent current nuisance. It is referred to as common law action in
nuisance. Along with above aspect, for making a complaint about nuisance, it is essential that
nuisance must be trivial8. For ascertainment of whether the nuisance is trivial or not, several
aspects are considered by court, such as nature of neighborhoods, impact of disruption, nature of
activity that results in nuisance, where the interference happening, time of interference, and
many others. The court tries to consider the common sense while assessing nuisance. Moreover,
court also takes into account the inconvenience or effect of interference on person on the basis of
cost.
In case of Hasley v Esso Petroleum Co Ltf (1961), Hasley resides in a living area of Fulham.
Esso possess and occupied an oil depo, which was in the opposite direction of house of Hasley. It
was claimed by Hasley that because of the acid ashes the paintwork on the car was damaged,
further it assists in spots on laundry hung in yard. It also leads to significant noice during nights,
and sometimes there is smell of oil. On the basis of this, it has been observed that it is considered
as unreasonable interference with right to use property or enjoyment of land9.
Further, in the case of St Helen’s Smelting Co v Tipping (1865), plaintiff was the owner of a
property, and this property is situated near to copper smelting factory. There is an emission of
nitrogen gas due to the activities of factory, which is regarded as normal aspect from smelting
operations. However, because of emission tress on the property of plaintiff harm, and therefore
8 Sam Porter,. ‘Do the rules of private nuisance breach the principles of environmental justice?’
(2019) 21.1 Environmental Law Review 21-37.
9 Halsey v Esso Petroleum Co ltd [1961] 2 All ER 145

he sued company. In this case, court held that it is considered as nuisance and therefore claim
was allowed. The defendant cannot say that it obtained right to property, therefore, continue to
discharge nitrogen gases. Since the smelting and emission of gases is not considered as illegal
activity, but area in which that was is to be predicted there could be no nuisance10.
Another legal case related to nuisance is Gales Holdings Pty Limited v Tweed Shire. In this case
Gales Holding possesses significant portion of undeveloped land. Before, 2000 development of
land was undertaken, and it does not set up sufficient drainage; therefore, squall water which
flawed onto land did not property exhausted, resulting ponding. In the year 2004, Gales protested
to the council of nuisance. Ultimately, land became locale for vulnerable type of frog. When the
Land and Environment Court permitted development agreement to Gales is distinct proceedings,
a situated needed it to reserve part of land as a locale for frog colony. After that, Gales carried
these proceedings for damages from 1999 forwards, looking for recover damages for the
reduction in value because of condition of development. It has been found by Supreme Court that
from 2004, council has guilty of nuisance, awarded damages11.
Application of the Law to the given case scenario
In the given case, Pete purchased apartment in the residential building. This building built as an
extension to the latest renovated ‘Waffles’. This apartment is situated on the fourth floor, and the
balcony oversees the external courtyard of the function room of waffle. The waffle activities
include hosting ceremonies of wedding, receptions, birthday parties, and several other
10 St Helen’s Smelting Co v Tipping [1865] 11 HL Case 642
11 Gales Holdings Pty Limited v Tweed Shire Council [2013] NSWCA 382

celebrations. Further, it also provides alcohol and food. All these ceremonies generally
conducted from midday to midnight and there is regular occurrence of full music and sound
played throughout these ceremonies. Due to the loud music, Pete cannot enjoy his apartment. In
addition to this, because of this music, he was not able to hear his own music and watch
television. Moreover, it has been identified by Pete that white couch of situated on his balcony
has some marks; it was only due to exhaust outlet from the kitchen of waffle. In Australia, it is
the right of person to enjoy their property12. If a person unreasonably interferes with the right to
enjoy their property, then it is considered a nuisance. On the basis of this, it has been seen that
Pete is not able to enjoy their property because of the loud music played at ceremonies. Further,
exhaust outlet of kitchen of waffle also damages the furniture of his apartment. By the
application of case Gales Holding Pty Ltd. V Tweed Shire, normally, it is expected by the owner
for reasonable standard of comfort; however because of parties, loud music, it is considered that
Abe Development Pvt. Ltd breaches this. In addition to this, there is also interference with an
interest in property, because Pete wants to particularly relax on the weekend and events of Abe
development Pty Ltd directly affect use and enjoyment of his residence. Since Pete has owner of
the property, therefore he has exclusive right of possession. By the application of case
Newington v Windeyer, if a person has exclusive possession of property, then he has right to sue.
Therefore, Pete has right to sue Abe Development Pvt. Ltd.
12 Albert C Lin., and Burger Michael. ‘State Public Nuisance Claims and Climate Change
Adaptation.’ ( 2018) 36 Pace Envtl. L. Rev. 49.

Along with the above aspect, for establishing claim for nuisance, it is mandatory that
interferences should unreasonable13. It has been observed that due to kitchen exhaust of waffle
there are stains on furniture, which is considered as material damages. By the application of case,
St Helen’s Smelting Co v Tipping (1865), it can be said that claim should be allowed as it is
considered a nuisance. Since kitchen exhaust is not considered as illegal activity, but the location
in which this was to be predicted there could be no nuisance.
In the present case, it has been identified that there is an unreasonable interference with right to
use or enjoy property. Therefore, Pete has title to sue Abe Development Pvt. Ltd. In such case,
court may order to company end nuisance or provide compensation of Pete with respect to
damages. In addition to this, court may also give order to prevent such activities that leads to
nuisance and damages to property14.
Conclusion
On the basis of the above analysis, it has been seen that Pete has sufficient title to sue the Abe
Development Pvt. Ltd., since the activities by company considered as unreasonable interference,
which assists in damages to property along with amenities damages. However, the rules and
regulations related to nuisance are not clear about the area of intervention from structure on the
land of Abe Development Pvt. Ltd which is considered as weakness.
13 Maria Lee,. ‘The public interest in private nuisance: collectives and communities in tort.’
(2015) 74.2 The Cambridge Law Journal 329-358.
14 Dan Priel,. ‘Land Use Priorities and the Law of Nuisance-The Law of Private Nuisance by
Allan Beever.’ (2015) 39 Melb. UL Rev.346.

Bibliography
Books and Journals
Andrews, Isaiah, and Anna Mikusheva. ‘Conditional inference with a functional nuisance
parameter.’ Econometrica 84.4 (2016)

Lee, Maria. "The public interest in private nuisance: collectives and communities in tort." The
Cambridge Law Journal 74.2 (2015)
Lin, Albert C., and Michael Burger. "State Public Nuisance Claims and Climate Change
Adaptation." Pace Envtl. L. Rev. 36 (2018)
Liu, Thomas T., Alican Nalci, and Maryam Falahpour. "The global signal in fMRI: Nuisance or
Information?." Neuroimage 150 (2017)
Moftakhari, Hamed R., et al. "What is nuisance flooding? Defining and monitoring an emerging
challenge." Water Resources Research 54.7 (2018)
Moftakhari, Hamed R., et al. ‘Cumulative hazard: The case of nuisance flooding.’Earth's
Future 5.2 (2017)
Porter, Sam. "Do the rules of private nuisance breach the principles of environmental
justice?." Environmental Law Review 21.1 (2019)
Priel, Dan. "Land Use Priorities and the Law of Nuisance-The Law of Private Nuisance by Allan
Beever." Melb. UL Rev. 39 (2015)
Case Laws
Gales Holdings Pty Limited v Tweed Shire Council [2013] NSWCA 382
Halsey v Esso Petroleum Co ltd [1961] 2 All ER 145
Hargrave v Goldman (1936) 110 CLR 40, 49
Munro v Southern Dairies Ltd [1955] VLR 332.
St Helen’s Smelting Co v Tipping [1865] 11 HL Cas 642

Wherry v KB Hutcherson Pty Ltd [1987] Aust Torts Reports 80-107