Nuisance

• Author: Philip H. Osborne
• Pages: 399-426

399

CHA PTER 6

NUISANCE

A. INTRODUC TION

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 pr imarily protects the

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

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

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

the diff‌iculty in def‌i ning the limits of its application.

B. PRI VATE NUISANCE

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

land is protected by the torts of trespass to land, the r ule in Rylan ds v

Fletcher, negligence, and private nuisance. Trespass to la nd is available

in respect of any direct and physica l intrusion onto land that is in t he

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

rule in Rylands v Fletcher1 provides a remedy for damage caused by the

escape of something li kely to do mischief from a neighbour’s non-natural

use of land. Negligence is available in respect of all physical damage to

1 (1868), LR 3 HL 330, aff’g (sub nom Fletcher v Rylands) (1866), LR 1 Ex 265 (Ex Ch).

THE LAW OF TORTS400

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

indirect physical or intang ible interference with property and all direct

interference that is not physical.2 Private nuis ance is most frequently

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

from the defendant’s land and interfere with t he plaintiff’s use, enjoy-

ment, and comfort of land. Private nuisance i s not actionable unless

the interference is substantial and unreasonable and the pla intiff 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. A lthough

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 negligence.3 It depends, prim arily, upon the nature and extent of the

interference caused to the plaint iff.

Not every interference with the comfort and enjoyment of property

is a nuisance. In both urba n and rural areas there must be a good deal of

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

sonable and benef‌icial activities of others. The conventional view was

that the limits of tolerance were reached when the defendant’s activ-

ity caused an unreasonable interference with the use, enjoyment, and

comfort of land. In 2013, however, in Antrim Truck Centre Ltd v Ontario

Transportation,4 the Supreme Court modif‌ied that test, holding there

are two distinct elements of t he tort that must be analy zed sequentially.

It must f‌irst be established th at the interference with the claim ant’s

land is substantial. The second is that the substantial interference must

also be an unreasonable interference with the plaintiff’s use of his land.

This modif‌ication wil l not, however, diminish the ability of the courts

to tailor sensitively their decisions to the particula r circumstances of

the case, and it wil l not diminish a related degree of uncert ainty and

unpredictability of decision mak ing that have led some commentators

to despair of f‌inding a rel iable and workable guide to decision making.5

Each one of the elements does, however, require further consideration.

2 In some situation s, private nuisance may provid e a remedy for a series of direct

physical intr usions, such as the conti nual intrusion of golf bal ls from a neighbour-

ing golf course. Se e Carley v Willow Park Golf Course Ltd, [2002] AJ No 1174 (QB).

3 Foreseeabilit y of harm is not an element of private nui sance, see Huang v Fraser

Hillary’s Ltd, [2018] OJ No 3014 (CA).

4 2013 SCC 13 [Antrim].

5 William P rosser described t he law of nuisance as an “imp enetrable jungle”: see

WP Keeton, ed, Prosser an d Keeton on the Law of Torts, 5th ed (St Paul, MN: West,

1984) at 616.