AuthorPhilip H. Osborne
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.
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).
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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT