Nuisance

• Author: Philip H. Osborne
• Pages: 342-366

342

1 (1868), L.R. 3 H.L. 330, aff’g (sub nom. Fletcher v. Rylands) (1866), L.R. 1 Ex.

265 (Ex. Ch.).

A. Introduction

There are two torts of nuisance: private nuisance and public nuisance.

Other than their name, they do not have a great deal in common. Pri-

vate nuisance protects people from interference with the use, enjoy-

ment, and comfort of their land. Public nuisance primarily protects the

public in the exercise of rights that are common to all citizens, such as

the right of passage on public highways and navigable rivers. A com-

mon trait of each tort is the elusive nature of the term “nuisance” and

the difficulty in defining the limits of its application.

B. Private Nuisance

A person’s interest in the integrity, security, enjoyment, and use of land

is protected by the torts of trespass to land, the rule in Rylands v. Fletch-

er, negligence, and private nuisance. Trespass to land is available in

respect of any direct and physical intrusion onto land that is in the pos-

session of the plaintiff. It is actionable without proof of damage. The

rule in Rylands v. Fletcher1provides a remedy for damage caused by the

Nuisance

chapter 6

escape of something likely to do mischief from a neighbour’s non-nat-

ural use of land. Negligence is available in respect of all physical dam-

age to land caused by a failure to take care. Private nuisance is

applicable to indirect physical or intangible interference with property

and all direct interference that is not physical.2Private nuisance is most

frequently used to deal with noise, odour, fumes, dust, and smoke that

emanate from the defendant’s land and interfere with the plaintiff’s use,

enjoyment, and comfort of land. Private nuisance is not actionable

unless the interference is unreasonable and the plaintiff has suffered

some damage.

The primary function of private nuisance is to draw an appropriate

balance between the defendant’s interest in using land as he pleases and

the plaintiff’s interest in the use and enjoyment of land. Although some

fault concepts have crept into the private nuisance action, it is still, in

the main, a tort of strict liability. Liability does not depend upon the

nature of the defendant’s conduct or on any proof of intention or neg-

ligence. It depends, primarily, upon the nature and extent of the inter-

ference caused to the plaintiff.

Not every interference with the comfort and enjoyment of proper-

ty is a nuisance. In both urban and rural areas there must be a good deal

of give and take between neighbours and a degree of tolerance of the

reasonable and beneficial activities of others. The limits of tolerance are

reached when the defendant’s activity causes an unreasonable interfer-

ence with the plaintiff’s use, enjoyment, and comfort of land. This dis-

cretionary concept allows courts to tailor their decisions sensitively to

the particular circumstances of the case. The advantage of a high degree

of fact sensitivity and flexibility is, however, offset by a related degree

of uncertainty and unpredictability, leading some commentators to

despair of finding a workable and predictable guide to decision mak-

ing.3One useful starting point is to distinguish between conduct that

causes physical and material damage to the plaintiff’s land and conduct

that interferes with the plaintiff’s enjoyment and comfort of land.

Nuisance 343

2 In some situations private nuisance may provide a remedy for a series of direct

physical intrusions, such as the continual intrusion of golf balls from a neigh-

bouring golf course. See Carley v. Willow Park Golf Course Ltd., [2002] A.J. No.

1174 (Q.B.).

3 William Prosser described the law of nuisance as an “impenetrable jungle”: see

W.P. Keeton, ed., Prosser and Keeton on the Law of Torts, 5th ed. (St. Paul, Minn.:

West, 1984) at 616.