Meaning, nature and elements

NUISANCE has been defined to be anything done to the hurt or annoyance of the lands,
tenements or hereditaments of another, and not amounting to a trespass.' . The word -
nuisance" is derived from the French word nuire, to do hurt, or to annoy. Blackstone
describes nuisance (nocumentum) as something that "worketh hurt, inconvenience, or
damage." . •

A nuisance may be caused by negligence, and there may be cases in which the same act or
omission will support an action of either kind, hut, generally speak-ing, these two classes of
actions are distinct, and the evidence necessary to support •them is different.' Nuisance is no
branch of the law of negligence, 3nd. it is no . defence that all reasonable care to prevent it is
taken.' '

The essence of nuisance is a condition or activity which unduly interferes with the use or
enjoyment of land. In common parlance, stenches and smoke and a variety of different things
may amount to a nuisance in fact but whether they are actionable as the tort of nuisance will
depend upon a variety of considerations and, a balancing of conflicting interests' An
actionable nuisance is incapable of exact definition,' and it may overlap with some other
heading of liability in tort such as negligence or the rule in Rylands v. Fletcher.' Nuisance is
an act or omission which is an interference with, disturbance of or annoyance to, a person in
the exercise or enjoyment of (a) a right belonging to him as a member of the public. when it
is a public nuisance, or (h) his ownership or occupation of land or of some easement. profit,
or other right used or enjoyed in connection with land, when it is a private nuisance.

Distiontion between, nuisance and trespass

Nuisance should he distinguished from trespass. Trespass is (i) a duet physical interference.
(ii) with the plaintiff's possession of land. tin) thr•iigh some materials or tangible object.
Both nuisance and trespass are similar in so far as in either case the plaintiff has to show his
possession of land. The two may even coincide, some kincid of nuisance being also
continuing trespasses! The points of distinction. between the two are as follows :

1
If interference is direct, the wrong is trespass, if it is consequential it amounts to
nuisance. Plantiny- a tree on another's land is trespass. But when a person plants a tree over
his own land and the roots or brandies project into or over the land of another person that is
nuisance. To throw stones upon one's neighbour's premises is a wrong of trespass; to allow
stones from a ruinous chimney to fall upon those premises is the wron,! of nuisance.'
Trespass is interference with a person's possession of land. In nuisance there is interference
with a person's use or enjoyment of land. Such interference with the use or enjoyment could
be there without any interfetence with the possession. For example, a person by creating
offensive smell or noise on his own land could cause nuisance to his neighbour. Moreover, in
trespass interference is always throug.h some material or tangible objects. Nuisance can be
committed through the medium of in-tangible objects also like vibrations, gas, noise, smell,
electricity or stroke. Apart from that, a trespass is actionable per see but in an action for
nuisance special damage has got to be proved.

There are three types of nuisance: public, private and statutory. Although the same conduct
hr the defendant may give rise to liability in any of these, the attachment of the word
nuisance to public nuisance is confusing as it originates in criminal law. Public nuisance is
primarily a criminal offence but may give rise to an action in tort where the plaintiff has
suffered special damage. The commonest example is probab!y interferences with the
highway. Private nuisance is a tort which deals witn disputes between adjacent landowners.
It involves drawing a balance between the right of one person to use his land in whatever
v.'ay he wishes and the right of his neighbour not to he interfered with.

PUBLIC NUISANCE

Public nuisance is an act affecting the public at large, or some considerable por-tion of it;
and it must interfere with rights which m•inbers of the community might otherwise enjoy.
Acts which seriously interfere with the health, safety, comfort or convenience of the public
generally or which tend to degrade public morals have always been considered publ ic
nuisance, e.g. carrying on trades which cause offensive smells.' or intolerable noises' keeping
an inflammable substance I ike gunpowder in large quantities;9 drawing water in a can from
a filthy source .1°They are dealt with by, or in the name of, the State.

2
Public nuisance is a crime whereas private nuisance is a civil wrong. Public nuisance is
interference with the right of public in general and is punishable as an offence.' Obstructing a
public way by digging a trench, or constructing structures on it are examples of public
nuisance. Although such obstruction may cause inconvenience to many persons but none can
be allowed to bring a civil action for that, otherwise there may be hun-dreds of actions for a
single act of public nuisance. To avoid multiplicity of suits the law makes public nuisance
only an offence punishable under criminal law.

In certain cases, when any person suffers some special u' particular damage, different from
what is inflicted upon public as a whole, a civil right of action is available to the person
injured. What is otherwise a public nuisance, also becomes a private nuisance so far as the
person suffering special damage is concerned. The expression "special damage" in this
context means damage caused to a party in contradistinction to the public at large.' For
example, digging trench on a public highway may cause inconvenience to public at large. No
member of the public, who is thus obstructed or has to take a diversion along with others, can
sue under civil law. But if any one of them suffers more damage than suffered by the public
at large, e.g., is severely injured by Tailing into the trench, he can sue in tort. In order to
sustain a civil action in respect of a public nuisance proof of special and particular damage is
essential.

The proof of special damage entitles the plaintiff ro bring a civil action for what may be
otherwise a public nuisance. Thus, if the standing of horses and wagons for an unreasonably
long time outside a man's house creates darkness and bad smell for the occupants of the
house and also obstructs the access of customers into it. the damage is 'particular. direct and
substantial' and entitles the occupier to maintain an action.'

In, Castle v St Augustine's Links (1922) 38 TLR 615 The plaintiff car driver was struck by a
Boll bell hit from the thirteenth lee of the celendants’ golf course as he was driving on the
highway. Balls frequently went over the highway. The siting 01 the tee amounted to a
nuisance. The class of persons affected were highway users The plaintiff had suffered special
damage. so the defendants were liable in public nuisance. One distinction between public and
private nuisance is that the plaintiff does not need to have an iiii,:rest in land to sue in public
nuisance. He must, however, have suffered special damage.

Tale & Lyle Industries Ltd v GLC 119831 2 AC 509 The defendants constructed lorry
terminals In the River Tnamps. These caused silting which obstructed the access of vessels
3
to

4
the plaintiffs' jelly. The plaintiffs had to spenc money on dredging. No action lay In private
nuisance as the jetty was not affected The plaintiffs had no private rights 01 property in the
river bed which was affected. The public right of navigation for river users had been
interfered with and the plaintiffs were able to bring an action in public nuisance for their
expenditure.

Many public nuisance cases are concerned with the highway. The usual action is concerned
with obstructing the highway. If the highway is unreasonably obstructed this will amount to
a public nuisance. The following case brings out the distinct nature of public nuisance.
Dymond v Pearce 119721 1 OB 497 Tho defendant left his lorry parked on the highway with
its parking lights on and It was visible from a distance of 200 yards. The plaintiff motor
cyclist ran Into the lorry. It was held that the defendant had committed a public nuisance but
was not liable for the plaintiffs injuries as these were caused entirely by the plaintiffs
negligence. It is also possible to cause a nuisance by creating a danger close to the highway.
Occupiers of premises adjacent to the highway sic tinder a duty to keep them in reasonable
repair.

Tarry v Ashton (1876) 1 OBD 314 A lamp on the defendant's premises fell and injured the
plaintiff. The defendant had employed a contractor to keep the lamp in good repair and
argued that this discharged his duty to highway users. It was held that the duty In such cases
was to keep the lamp in good repair and that the duty was non•delegable: the defendant was
liable.

Private nuisance

Private nuisance is the using or authorising the use of one's property, or of any-thing under
one's control, so as to injuriously affect an owner or occupier of prop-eny by physically
injuring his property or by interfering materially with his health, comfort or convenience. 23
Private nuisances include acts leading to (a) wrongful disturbances of easein ents or
servitudes, e.g. obstruction to light and air, distur-bance of right to support; or (b) wrongful
escape of deleterious substances into another's property, such as smoke, smell, fumes, gas,
noise, water, fi lth, heat, electricity, disease-germs, trees, vegetation, animals, etc.' "The
forms of this (nuisance) arc innumerable. But whatever be the type, it does not follow that
any harm constitutes a nuisance. The whole law on the subject really represents a

5
balancing of

6
conflicting interests. In fact the law repeatedly recognises that a man may use his own land
so as to injure another without committing a nuisance. It is only if such use is unreasonable
that it becomes unlawful. Reasonableness plays an important part in determining whether or
not there has been a nuisance.--’ Private nuisance is an act affecting some particular
individual or individuals as distinguished from the public at large. It cannot be made the
subject of an indict-ment, but may be the ground of a civil action for damages or an
injunction or both.

The increasing concein of central government for public h,:alth and the environment has led
to a mass of legislation concerned with noise, run-down prein ises, clean air and
accumulations. Although statutory nuisances are the most important in terms of the
environment, they are not dealt with in any derail in a tort course as they are enforced by
public bodies. From the plaintiffs point of view, the most significant point about statutory
nuisance is that enforcement is in the hands of the local authorities. This saves a person who
is affected from the time and expense of having to bring a private action. The normal method
of enforcement is (or the local authority to serve an abatement order on the offender.

The law of nuisance has a much longer history than the law of negligence,' but the more
junior tort seems in the last century or so to have eclipsed it. Indeed, some writers believe
that nuisance is now merely a form of negligence.2 Other writers, more reasonably, maintain
that parts of the law of nuisance belong in negligence but other parts constitute a separate and
important field of law.3 In essence, nuisance protects the enjoyment of land from
unreasonable interference by others. It is an environmental tort in the sense that what
interferes with the enjoyment of land is invariably an interference with the environment more
generally—noxious fumes and gases, noise, smells and vibration are common examples. But,
traditionally, to be able to sue ,in nuisance, one has had to have had an interest in land. Many
people who might have expected to be able to sue in nuisance have found that their interest
in the land was insufficient, including licensees (those who have only a contractual right to
occupy)4 and members of the owner's family.3 Although more recently there has been a
controversial decision by the Court of Appeal that it may be actionable nuisance to harass a
non-owner in her home ,3 the underlying historical justification for the tort of nuisance has
not been the protection of the environment generally but the protection of the right to enjoy
one's own private property and through the protection of that right, the protection of the
7
value of property. Many nuisance cases are neighbour disputes, in which one neighbour
accuses the

8
other of carrying on some noxious activity. Indeed, economists tend to see nuisance as the
law that regulates disputes about incompatible land uses.' Residential uses and industrial uses
of land often do not sit happily together. Nuisance law is one way (along with land use
planning) of settling disputes that arise from such incompatible uses. Moreover, civil law
systems tend to classify nuisance cases as part of property law rather than as part of tort law.
But nuisance is wider than neighbour disputes.

Although plaintiffs have to have an interest in land, defendants need not have such an
interest. A person who stands on the street outside and makes a loud noise that disturbs local
householders is just as likely to be liable in nuisance as another householder who makes the
same noise. One aspect of nuisance that does, however, set it apart from negligence and most
other torts is the remedy that most plaintiffs seek. Although most plaintiffs make a claim for
compensation for past annoyance, most are really interested in whether they can make the
defendants stop their noxious activities, activities which are continuing during the legal
action. Plaintiffs therefore almost invariably seek injunctions. In most nuisance cases, the
issue is not about how the alleged nuisance started but whether it should stop. By that time
the defendant will be fully aware” of what is happening to the plaintiff. The defendant's case
cannot be that there is no intention to harm the plaintiff or that there is no foreseeable harm.
The harm is self-evident, as is the fact that the defendant could remove the source of the
harm at any time. The issue in most nuisance t cases is therefore simply whether the
plaintiff’s interest in the enjoyment• of property should outweigh the defendant's interest in
the activity complained.about. This relative lack of importance of intention or foreseeability
in most nuisance cases means that the court's attention focuses on the coru3equenCes A of
the defendant's activities (and on what would be the consequences of, the stopping of those
activities) rather than on the behaviour of thee defendant.

To constitute the tort of nuisance the following essentials are required to be proved : I.
Unreasonable interference. 2. Interference is with the use orenjoymcnt of land. 3. Damage.
(11 l2rt 41:14eAmrrrib;Ttrier ieJ-e/Y1 Ce Interference may cause damage •to t the p ainti s
property or may cause personal discomfort to the plaintiff in the enjoyment of property.
Every interference is not a nuisance. To constitute nuisance the interference should be
unreasonable. Every person must put up with some noise, some vibrations, some smell, etc.
so that members of the. society can enjoy their own rights. If I have a house by the side of

9
road I cannot bring an action for the inconvenience which is necessarily incidental to the
traffic on the road. Nor can I sue my neighbour if his listening to the radio interferes ”) 2

with my studies. So long as the interference is not unreasonable no action can be brought. "A
balance has to be maintained between the right of the occupier to do what he likes with his
own, and the right of his neighbour not to be interfered with.”" if the interference is
unreasonable, it is no . defence to say that it was for the public good. in Reelhey Shyain v.
Cur Prasad." Gui. Prasaci Ind another filed a suit against ltadhcy Shyam and others for a
permanent injunction to restrain them from installing and running a flour mill in-their
prcmisses. It was alleged that the said mill would cause nuisance to be ?faintiffs, who were
occupying the first floor portion of the same premises in as much as the plaintiffs would !ose
their peace on account of rattling noise of the flour mill and thereby their health would also
be adversely affected. It was held that substantial addition to the noise in a noisy locality, by
the running of the iir pt'gned machines, seriously interfered with the physical carillon of the
plaintiffs and as such it amounted to nuisance. and the plaintiffs were entitled to an injunction
against the defendants. In Ushahen v. Bhagya Laxmi Chitra Mandir." the plaintiffs-appellants
sued the defendants-respondents for a permanent injunction to restrain them from exhibiting
the film "Jai Santoshi Maa". It was contended that exhibition of the film was a nuisance
because the plaintiffs religious feelings were hurt as Goddesses Saraswati, Laxmi and Parvali
were de-fined as jealous and were ridiculed. It was held that hurt to religious feelings was not
an actionable wrong. Moreover, the plaintiffs were free not to see the movie again. The
balance of convenience was considered to he in favour of the defendants and as such there
was no nuisance. It is vital to grasp at the outset that reasonableness is being used here in a
sense rather different from the law of negligence. It is a compaiatively simple proposi-tion
that you are liable for negligence if you drive a car carelessly against a pedestrian in the
street and it would be ridiculous to say that there are some circumstances in which you may
do so and others. in which you may not. In other words, our attention is concentrated on the
relative issue of the characterisation of the defendant's conduct and once we have determined
this in the plaintiffs favour we immediately progress to legal liability, treating the plaintiffs
right to personal security as absolute. Nuisance, however, generally approaches the issue
from the other end and we cannot make such a proposition as that you may not make a noise
which irritates your neighbour, for common sense tells one that such a rule would be
totally
10
unworkable. Some intrusion by noise (or smells or dust, etc.) is the inevitable price of living
in art organised society in proximity to one's neighbours, indeed "the very nuisance the one
com-plains of, as the ordinary use of his neighbour's land, he himself will create in the
ordinary use of his own and the reciprocal nuisances are of

tV

a comparatively trifling character"." Accordingly, the protection of such interests must be

approached with an attempt to balance the competing rights of neighbours, a process of
compromise, a ”rule of give and take, of live and let live".6' It is to this issue that we are
directing our attention when we talk of the "reasonableness" of the defendant's conduct rather
than to whether he took reasonable care in the negligence sense. "Reason-ableness” signifies
what is legally right between the parties taking account of all the circumstances of the case."
No precise or universal formula is possible to determine reasonable-ness in the above sense.
Whether an act constitutes a nuisance cannot be determined merely by an abstract
consideration of the act itself, but by reference to all the circumstances of the particular case;
the time and place of its commission, the se.riousness of the harm, the manner of committing
it, whether it is done maliciously or in the reasonable exercise of rights; and the effect of its
commission, that is whether it is transitory or perma-nent, occasional or continuous; so that it
is a question of fact whether or not a nuisance has been committedl'

The reasonableness test Where the interference causer sensible personal discomfort the court
will apply a reasonableness test to determine whether it amounts to a nuisance. A number of
(actors may he taken into account either in isolation or in conjunction to determine whether
the defendant's conduct was reasonable.

0 Locality

Sturges v Bridgman (1879) 1 I ChO 852 A confectioner had for more then 20 years used
industrial pestles and mortars. This caused no interference until the plaintiff doctor built an
extension consulting room In his getden,'adlacent to the confectioner's premises. At this
stage the noise and vibration were alleged to be a nuisance. The doctors action succeeded.
The court took Into account the tact that the area consisted largely of doctors' consulting
rooms and stated that that which wou!d be a nuisance In Betgrave Square would not
necessarily be so iri Bermondsey.
11
The effect of this rule is to make it difficult for those who live in industrial areas to succeed.
But for a successful case see the following.

Rushmer v Poleue & Allied Ltd (1906) 1 Ch 234 The plaintiff milkman lived in an area of
London which contained a large number of printing companies. He found it difficult to sleep
at night and sought an Iniunction for nuisance by noise. The injunction was granted although
the plaintiff was the only resident, as the noise went beyond the boundaries of what was
acceptable.

It is possible for the nature of a locality to change with time. When this happens the change
is normally dealt with by planning permission but what is the relationship between planning
laW and nuisance?

Gillingham Borough Council v Medway (Chatham) Dock Co Ltd 119931 DB 343 The
operators of a commercial dock ran It for 24 hours a day. This involved heavy lorries passing
through the adjacent residential district. Planning permission had been granted for their
activities In 1993. An application for an injunction by the local authority was rejected as
planning permission could have the effect of changing the character of a neighbourhood.

Wheeler and another v J J Saunders Ltd and others (191s) AeIER697-

STAUGHTON LJ. Dr Wheeler is a veterinary surgeon specialis:ng in pigs. He and his wife
own Kingdown Farmhouse, Priddy, near Wells on the Mendip Plateau. The farm is currently
let to J J Saunders Ltd. the first defendant. The action is brought first upon a complaint that I
Saunders Ltd had obstructed a right of way to the house over land of the farm: secondly, in
respect of various activities on the farm which are said to constitute a nuisance. Both the
farm and the house were formerly owned by the third, fifth, sixth and seventh
defendants as trustees of a pension fund. They sold the house to Dr and Mrs Wheeler by
a conveyance dated 18 March 1987. Meanwhile, part of the farm comprising 1 00 acres had
been licensed to Kingdown Farm Ltd. a company in which I I Saunders Ltd held 85% of
the shares and Dr Wheeler had 15%. Dr Wheeler was the managing director. The plan
was char Kingdown Farm Ltd would carry out pig breeding on the farm under the
management of Dr Wheeler and next to the house in which he lived. Before the pig
breeding began and before Dr and Mrs Wheeler acquired the house, they had on 23 January
1987 • obtained planning permission to convert outbuildings of Kingdown Farmhouse into
12
 hot iday cottages. This must have been

13
known to the trustees of the pension - fund. Furthermore the conveyance of Kingdown
Farmhouse to Dr and Mrs Wheeler contained in cI 4(b) a covenant by them to use the
outbuildings only for holiday accommodation, Some breeding sows were delivered to the
farm and the operation of pig breeding began. By March 1988 the parties had fallen out. Dr
Wheeler was then dismissed as managing director of Kingdown Farm Ltd and all business
connection between him and the defendants was severed. Another manager was appointed to
run the farm. In June or July 1988 I J Saunders Ltd applied for planning permission to build
a Ti‘owbridge house on the farm. That is a building containing a row of 20 pens each
capable of taking 20 pigs under a mono•pitch roof and with an opening for ventilation and
access to the front only. Part of the building 'las a slatted floor and a channel to contain the
pigs' excrement underneath it. Permission was granted by the Mendip District Council. and
the first pigs went into occupation on 15 August 1989.

An application for planning permission for a second Trowbridge house was made on 7
November 1989 and granted on 24 April 1990. By June or July the two were filled with
pig*. The second Trowbridge house was only 11 metres (36.08 feet) from the nearest point
in Kingdown Farmhouse and its outbuildings, that is to say Peacock Cottage, which was one
of the hoiiday cottages that had now been completed by Dr and Mrs Wheeler. The case for
the defendants in this appeal is that (1) the judge should not have awarded damages in the
sum of E500 and an injunction because the defendants had obstructed their right of way to
Kingdown Farmhouse and (2) the judge should not have awarded damages totalling £1,500
and an injunction in respect of nuisance in the form of smell from the pigs in the Trowbridge
houses. 1 shall a consider those rwo grounds of appeal in turn: they raise quite separate
issues.

(I) Obstructing access to the houses The house and farm were formerly in common
ownership. There were then two ways of gaining access to the house. It was situated in a
quadrant of land near a crossroads, formed by the B3371 going roughly from east to west
and a lesser c road from noHh to south. Kingdown Farmhouse is in the northwest quadrant.
The farm lies to the north and west of the house. One means of access is an entrance from
the minor road to the east of the house through a gap in a stone wall which forms the eastern
boundary. It leads between a barn and the house, then along the front of the house. That is
the east entrance. The other in the d south used to pass through a gap in the stone wall which

14
forms the southern boundary to the yard or cartilage of the house. The front of the house

15
would be facing a person entering by this route. However, the gap in the stone wall from the
south entrance was not immediately adjacent to the B337I road. It was necessary to cross a
strip of land which also served as a means of access to the farm. 1 shall call that the 'access
strip'. There were signs of a track from the south e entrance across the access strip to the
133371 road. I am prepared to accept, as the judge did, that the south entrance was used as a
means of access to the house while the house and land were in common ownership. But Mr
Small, a witness who had known the house and farm for a very long time, said that there was
a gate at the south entrance which was usually shut. The judge considered that the f south
was naturally the main entrance, and the east, as it were, the back door. That is certainly an
arguable view, but I would not for myself attach any weight to it. It would depend on the
whims and lifestyle of the owner. When Kingdown Farmhous•. was conveyed with its
outbuildings, yard and garden to Dr and Mrs Wheeler, th• access strip (as I have called it)
was retained by the trustees. The boundary of the land conveyed ran across the gap in the .9
stone wall which, with its gate, formed the south entrance. I assume that the gate was still
there, as that seems consistent with Mr Small's evidence, although I cannot see it in the
photograph. So Dr and Mrs Wheeler would need a right of way over the access strip if they
were to use the south entrance. There was no express grant of a right of way in the
conveyance. The question is whether one h was to be implied. The defendants took the view
that Dr and Mrs Wheeler were not entitled to use the south entrance and blocked it with a
wall of breeze blocks.

For my part I do not consider that the south entrance was necessary for the reasonable
enjoyment of Kingdown Farmhouse. The east entrance would do just as well. It was said to
be four inches or ten centimetres narrower than the south entrance. That was not critical. The
gate at the south entrance, which was usually shut, shows to my m ind that it was not the
main entrance and was probably only used on rare occasions. I would therefore hold,
differing from the judge. that Dr and Mrs Wheeler acquired no right of way through the
south entrance.

(21 The effect of plan ri rig permission on nuisance The ar•pument for the defendants is that,
since they obtained planning permission for the two Trowbridge houses, any smell
emanating from the pigs kept in them cannot amount to a nuisance. There can he little doubt
and it is now accepted that, apart from any effect of planning permission, there was nuisance
16
by smell. The judge described the situation in a passage in his judgment:

17
b 'The design of the Trowbridge house meant that the pigs were slurry based: that is part of
the accommodation consisted of a slatted area used by the pigs to urinate and defecate. The
slurry then ran into a channel, from which it was pumped out at weekly intervals. The pigs
were usually fed meal and water, but from November 1989 to June 1990 they were fed or c
whey as well.' There was expert evidence that this arrangement would lead to substantial
discomfort and he very unpleasant.

The effect of the planning permission for two Trowbridge houses? It was opposed by Dr and
Mrs Wheeler, but nevertheless granted. Does that mean that they have lost any right which
they had previously enjoyed to live their lives free from the smell of pigs on their doorstep?
Surprisingly, there appears to have been no direct authority on the point until recently. There
have, d however, been cases dealing with the question of whether statutory authority is a
defence to a claim in nuisance. One such was Allen v Gulf Oil Refilling Ltd [1981) .1 All
ER 353.11981 l AC 1001, where Mrs Allen complained of nuisance from an oil refinery
built with statutory authority. Lord Wilberforce said (119811 1 All ER 353 at 356.119811
AC 1001 at 1011):

'It is now well settled that where Parliament by express direction or by necessary implication
has authorised the construction and use of an undertaking or works, that carries with it an
authority to do what is authorised with immunity from any action based on nuisance.'

However, he added that the immunity was confined to harm which was the inevitable result
of what Parliament had authorised (see 11981) I All ER 353 at 358, 19811 AC 1001 at
1114). The Gulf company had to show that it was impossible to construct the refinery
without
.reating the nuisance complained of. 1 do not consider that planning permission necessarily
has the same effect as statutory authority. Parliament is sovereign and can abolish or limit the
civil rights of individuals. As Sir John May put it in the course of argument, Parliament
cannot be irrational just as the sovereign can do no wrong. The planning authority on the
other hand has only the powers delegated to it by Parliament.

It is not in my view self-evident that they include the power to abolish or limit civil rig1-.ts
in any or all circumstances. The process by which planning permission is obtained allows for
objections by those who might be adversely affected, but they have no right of appeal if their

18
objections are overruled. It is not for us to say whether the private Bill procedure in
Parliament is better or worse. It is enough that it is different.

One can readily appreciate that planning permission will, quite frequently; have unpleasant
consequences for some people. The man with a view over open fields from his window may
well be displeased if a housing estate is authorised by the planners and built in front of his
house: the character of the neighbourhood is changed. But there may be nothing which
would qualify as a nuisance and no infringement of his civil rights.

What if the development does inevitably create what would otherwise be a nuisance? Instead
of a housing estate the planners may authorize a factory. which would emit noise and smoke
to the detriment of neighbouring residents. Does that come within the first proposition of
Cumming-Bruce U. that a planning authority has no jurisdiction to authorize a nuisance? Or
is it within the second, that the authority may change the character of a neighbourhood? c
The problem arose directly in Gillingham BC v Medway (Chatham) Dock Co Ltd 11992) 3
MI ER 923, (1993) QB 343. There, planning permission had been granted for the
development as a commercial port of part of the Bulmer Road dockyard in Chatham. This
had the result that heavy goods vehicles in large numbers used roads in the neighbourhood
for 24 hours a day. much to the harm of local d residents. This was said to be an actionable
public nuisance. Buckley held that it was authorized by the grant of planning permission and
so was not actionable. His reasoning closely followed the dictum of Cumming-Bruce LI,
which I have quoted. He said ([1992) 3 All ER 923 at 934, (19931 QB 343 at 359): 'It has
been said, no doubt correctly, that planning permission is not a license to commit nuisance
and that a planning authority has no jurisdiction to authorize nuisance. However, a planning
authority can, through its development plans and decisions, alter the character of a
neighborhood.' He concluded (11992)3 All ER 923 at 935,11993] QB 343 at 3ö1): 'In short,
where planning consent is given for a development or change of use, the question of nuisance
will thereafter fall to be decided by reference to a neighbourhood with that development or
use and not as it was previously.' However, he did accept that 'it is only a nuisance inevitably
resulting from the 9 authorized works on which immunity is conferred', as in the case of
statutory authority (see [1992) 3 All ER 923 at 934, [1993) QB 343 at 360). We have been
provided in some detail with information as to how the two planning permissions were
obtained. Certain features were apparent for the members of the planning authority to see.
First it was clear that the Trowbridge h houses would be very close to the curtilage of
Kingdom Farmhouse
19
although not as close to the house itself. Secondly, the plans showed 20 pens in each
Trowbridge house, and the letter to the planning authority said that each would hold
approximately 20 piglets. Thirdly, the letter said that the slurry from the ...units went into the
slurry channel from where the slurry would be sucked out

DR. JATISH CHANDRA GHOSH

HARI SADHAN MUKHERJEE AND OTHERS.

0961) ,g SCP tS

The appellant, who was an elected member of the West Bengal Legislative Assembly, gave
notice of bi; intention to put certain questions in the Assembly and on those questions being
disallowed by the Speaker published them in a journal called Janaescs of Ghatal, his own
constituency. The first respond-ent who was then the Sub-Divisional Magistrate of Ghatal
and whose conduct was the subject-matter of some of those questions, filed a complaint
against the appellant and two others, the editor and the printer and publisher of the Janamat,
under ss. 500 and 5ox of the Indian Penal Codt. The appellant pleaded privilege and
immunity under Art. 194 of the Constitution as a bar to criminal prosecution. The trial
Magistrate as also the High Court found against him. On appeal by special leave, it was
claimed on his behalf that he had an absolute privilege under Art. 104 of the Constitution to
publish the disallowed questions and could not be prosecuted therefore.

In this Court, .it. has been contended on behalf t of the appellant that the learned Judge
below had erred; in his interpretationof the provisions of Art. 194 L0l the, Constitution and
that on a proper constructioni!of those provisions it should have been hold (I) that questions
sought to be asked by a member of a Legis-lative Assembly, even though diSalloWed by the
Speaker, formed part of the procecdingo of the House, and, as such, their publication wouid
not attract the provisions of the Indian Penal Code ; (2) the provisions of Art. 194 should be
liborally construed in favour of persons like elected members of the Assembly who are
rendering public service not only by making speeches and asking questions in the Assembly,
but also by publishing them in the public prose wir,:o a view ,to apprising the country and
particularly the consti. tuency of what had been happening in the House. In other words, it
was claimed that there W AEI an absolute privilege in favour of a member and that,
therefore, he could

20
not be prosecuted for having publi3h?.d the questions ho sought to put, but bad been
disallowed by the Speaker.

Do the provisions of Art. 194 of the Constitution lend any support to the contentions
aforesaid raised on behalf of the appellant? The first clause of Art. 194 does not call for any
comment in this case;because;nol question as regards freedom of speech in the Legisla-ture
of a State has been raised. Clause (2) of -the, Article.has, firstly, laid down a bar against any
pia.-- ceedinge, civil or criminal against any member of..a Legislature of a State in respect of
anything' said or any vote given by him in the Legislature or any Coral inittee thereof; and
secondly, that no person shalbbe liable In a civil ur criminal proceeding in respeotoftliP
publication of any report, paper, votes or proceedings' under the authority 'of a House
of such a LeglelaturN It is not contended that the; publication' complaince against in this
case was under the authority of th& Legislative Assembly. of West I3ongal. So the stiooritt
part of the second cla'use of Art. 194 cannot be Pressed in aid of the appellant's contention.
As regards ithdl first part of the second clause, can it be said that the publication, which
forms the subject-matter of the prosecution in this base; can come within the purview of "
anything said or any vote given.” by a memberbf the Legislative Assembiy . The answer must
be in the negative. It is, therefore, manifest that el. (2 .of Art. 194 is equally of no assistance
to the Opponent. If we turn to the. legal pdx3 ition in England with reference to the House of
Conirnons, it. is oleari that the inimunity.of aunember of the House of Commona is ifi
respect:of the speeches Inadat by .him in Pailiament4 but it does not extend 66
theipublicibtion of the debate outside Parliament. If a member ; of a., House •.of Coparnons
publishes. his .speech made in the Hobse separately. from the rest, of the .proceedings in thp.
House, ihe.will be liable for defamatibryif his speech contains.mattere defamatoiy ••of any
person. It is clear on a reference to the law in England in respect of the privileges and
immunities of the House of Commons that there is no absolute privilege attach-ing to the
publication of extracts from proceedings, in the House of Commons. So far as a member of
the House of Commons is concerned, he has an absolute privilege in respect of what he has
spoken within the four walls of the House,. but there is only a qualified peivilege.in his
favour even in respect of what he has himself said

21
and spread over the 680 acre farm. There was no statement that the pigs would no longer be
kept on straw, as they had been in the past. That may or may not have been obvious to the
members of the planning committee. Mr Harper submits, and I agree, that the planning
applications were at pains to emphasise that what was proposed was merely a continuation of
an existing use. Paragraph 6 of the application form describes the proposed development as
'erection of pig weaning house to rehouse existing pigs'. The Trowbridge houses were not for
weaning strictly speaking. but perhaps not very much turns on that. More importantly, a
paragraph in the letter said: 'We feel that we should point out that the units proposed arc only
replacing units previously demolished.' That was literally true. There had been some
corrugated iron sheds used for cattle where the Trowbridge houses were built. But the
impression may well have been created that nothing much was changing with regards to the
number of pigs or the conditions in which they would be kept. Clearly there was no express
statement to the contrary or that the pigs would now be nearer to Kingdown Farmhouse. I
think it very likely that the planning committee did fail to understand the situation, since it
included in an agreement with Kingdown Farm Ltd a restriction that: 'At no time shal l the
number of pigs kept within i 00 ( metres of the ‹iweltinghouse known as Kingdown Farm
enceed 2.500: That is to my mind explicable only on the basis of some misunderstanding. 1
have set nut those points as to what the planning committee was told in some detail, but in
truth I cannot see that they are of any great relevance to the point of law we have to decide.
They show only that, for one reeson or another, the c planning authority may not have had
the full picture as to the effect of its decisions, and in particular the planning authority may
reasonably have believed that any nuisance resulting from its decision would not be new but
only a continuation of what had existed and been tolerated in the past. What may matter is
whether the subsequent nuisance flowed inevitably from the activity which was authorised
by the two planning permissions. In my opinion it did. The Trowbridge houses were to
contain 800 pigs based on slurry within 36 feet of the nearest holiday cottage. There was
bound to be nuisance by smell. True the, nuisance would be greater when the pigs were fed
on whey, but there would inevitably he nuisance even if they were not. It follows that if this
were a case where the buildings were authorised by statute, there would be immunity from
any action based on nuisance. But, as I have already said, 1 consider that the case way be
different where one is concerned with planning permission rather than statute. I accept what
was said by Cumming-Bruce LJ in il;kn v Gulf Oil Refining Ltd [197913 All ER 1008 at
1020, [19501 QB 156 at 174: first, that a planning authority has. in general, no jurisdiction

22
to authorise a

23
nuisance; and second if it can do so at all, that is only by the exercise of its power to permit a
c hange in the character of a neighbourhood. To the extent that those two propositions feature
in the judgment of Buckley j in Gillingham BC v Medway (ChotSam) Dock Co Ltd, 1 agree
with his decision, but I would nor for the present go any further than that. It would in my
opinion be a misuse of language to describe what has happened in the present case as a
change in the character of a neighbourhood. It is a change of use of a very small piece of
land, a little over 350 square metres according to

the dimensions on the plan, for the benefit of the applicant and to the detriment of objectors
in the quiet enjoyment of his house. It is not a strategic planning decision affected by
considerations of public interest. Unless one is prepared to accept that any planning decision
authorises any nuisance which must inevitably come from it, the argument that the nuisance
was authorised by planning permission in this case must fail. I am not prepared to accept that
premise. It may be—I express no concluded opinion—that some planning decisions will
authorise some nuisances. But that is as far as 1 am prepared to go. There is no immunity
from liability for nuisance in the present case. I would dismiss the second part of this appeal.

Duration

Where, the claim is for damages, as distinct from an injunction the duration of the alleged
nuisance is one of the relevant factors in determin-ing whether the defendant has acted
unreasonably and is liable." All other circumstances must be taken into account and they may
on the one hand make a temporary annoyance a nuisance or, on the other, render it lawful. A
man who pulls down his house for the purpose of building another no doubt causes
considerable inconvenience to his neighbours and it may well be that he will take some
months in the process; but if he uses all reasonable skill and care to avoid annoyance, that is
not a nuisance, for life could scarcely be carried on if it were.' On the other hand, blocking up
a highway for no more than a month may well be a nuisance because circumstances will
usually make the resulting damage so much more serious.' The longer the interference
continues the more likely it is to he unreasonable. The question frequently arises in
connection with building works. The courts have laid down a principle chat provided these
are carried on with reasonable skill and care and interference is minimised. then no nuisance
is con.mitted (Andreae v Selfridge & Co 1.td 119381 Ch I). The duration principle raises
difficulties with ime-riff nuisances where there is an isolated or single escape. These occur
where there is a state of affairs on the defendant's land which causes damage on one occasion
24
to the plaintiff. 30 Spicer v Smee 119461 1 All ER 480 Defective electrical wiring was
Installed In the defendant's premises. This caused a lire which destroyed the plaintiffs
adjacent house. The defendant was held liable In nuisance. The nuisance was the stale of
affairs on the defendant's land which foreseeably exposed his neighbour's property to danger.
The cases on isolated escape illustrate a connection between nuisance and negligence. In
Bolton v Stone 1951 the isolated escape of a cricket ball from the ground was held not to he
a nuisance. Whether there is a state of affairs on the land sufficient to give rise to liability in
nuisance will depend on the frequency with which halls escape. This is also a factor in
determining negligence.

Sensitivity If the damage is due more to the sensitivity of the plaintiffs property than to the
defendant's conduct then no nuisance is committed.

Robinson v Kilvert (1889) 41 ChD 88 The plaintiff occupied the ground floor of the
defendant's premises and used Vt to store brown paper. Heat created by the defendant's
manufacturing process damaged the paper. It was held that the damage was due more to the
sensitivity of the paper than to the defendant's activities and there was no nuisance.

McKinnon Industries Ltd v Walker 119511 3 DLR 577, the defendant's factory emitted
sulphur dioxide which damaged the plaintiffs commercially grown orchids. As the
Interference would have damaged non-sensitive plants, the plaintiff was able to recover the
full extent of the loss including the damage to the sensitive orchids.

In considering what is reasonable the law does no take account of abnormal sensitivity in
either persons or property. If the only reason why a person complains of fumes is that he has
an unusually sensitive nose or that he owns an exotic flower, he cannot expect any sympathy
from the courts. In Heath v. Mayor of Brighton for example, the incumbent and trustees of a
Brighton church sought an injunction to restrain noise from the defendants' electrical power
station. There was no proof of diminution of the congregation or of any personal annoyance
to anyone except the incumbent and he was not prevented from preaching or conducting his
services; nor was the noise such as to the distract the attention of ordinary healthy persons
attending the church. An injunction was not granted...

Limits to protection

Nowadays it is probably unlikely that many people would regard as "unduly sensitive" a
plaintiff who complained that his view was ruined or his sitting room darkened or smoke
25
caused to blow back down his chimney by the erection of neighbouring premises.
Nevertheless it is well established that there is no natural right to a view or to light or to the
free passage of air though the last two at least may be acquired by prescription and may of
course be conferred by grant. The cases on the absence of a right to a view or light provided
the basis of the decision in Hunter v. Canary Wharf Ltd" in which the House of Lords held
that the defendants were not liable in nuisance for constructing a 250 metre high stainless
steel-clad tower which interfered with the plaintiffs' television reception: if a landowner has a
right, at common law, to build on his land in such a way as to block sunlight from reaching
the plaintiffs land, the same must apply to a structure which blocks television signals." It
does not, however, follow that the same is true of some activity (for example, the generation
of electricity) on the defendant's land which interferes with television signals. In Bridlington
Relay Ltd v. Yorkshire Electricity Board" EucKley J. in the 1960s doubted whether
interference with such a purely recreational amenity was an actionable nuisance,' but the
overall result of Hunter v. Canary Wharf is to leave the matter open and it is thought that in
principle receiving teievision should now be a "protected interest": telex/ision is watched by
virtually the entire population for both recreational and educational purposes and the
"ordinary usages of man-kind" must be judged by contemporary standards.

Hunter and others v Canary Wharf Ltd • (1997) 2 ALL ER 426

LORD GOFF OP CHIEVELEY. My Lords, there are before your Lordships' House appeals
in two actions, which raise fundamental questions relating to the law of private nuisance. In
the first action, Hunter v Canary Wharf Ltd. the appellants (who are the plaintiffs in the
action) claim damages in respect of interference with the television reception at their homes.
This, they claim, was caused by the construction of the Canary Wharf Tower, which was
built on land developed by the defendants. The tower is nearly 250 metres (about 800 feet)
high and over 50 metres square. The source of television transmissions in the area is a BBC
transmitter at Crystal Palace; and the plaintiffs claim that, because of its size and the metal in
its surface (it has stainless steel cladding and metallised windows), it has caused interference
with the television signals from Crystal Palace. The plaintiffs all lived at the material time in
an area on the Isle of Dogs affected by the interference, which has been called 'the shadow
area'. They claim that the interference began in 1989, during the construction of the tower. A
relay transmitter was then built to overcome the problem of interference in the shadow area.
This came into operation in April 1991, and it is claimed that the aerials at the plaintiffs'

26
homes were adjusted or replaced between July 1991 and April 1992 to achieve satisfactory
reception. The plaintiffs claim damages in respect of the interference with their television
reception during the intervening period. Their claim was framed in nuisance and in
negligence, though their claim in negligence has since been abandoned. In the second action
Hunter v London Docklands Development Corp., the respondent plaintiffs claim damages in
respect of damage caused by what they claim to be excessive amounts of dust created by the
construction by the defendants of a road 1,800 metres in length, known as the Limehouse
Link Road, which was constructed by the defendants between November 1989 and May
1993. The defendants are residents in the affected area, and they advanced their claims in
negligence and nuisance and under the rule in Ryland v Fletcher (1868), though this last head
of claim has been abandoned. In both actions Judge Fox-Andrews QC made orders for the
trial of a number of preliminary issues of law' of the issues of law in the first action, two
have survived to reach your Lordships' House, viz (1) whether interference with television
reception is capable of constituting an actionable nuisance, and (2) whether it is necessary to
have an interest in property to claim in private nuisance and, if so, what interest in property
will satisfy this requirement.

Interference with television signals

1 turn first to consider the question whether interference with television signals may give rise
to an action in private nuisance. This question was first considered over 30 years ago by
Burkley J. in Bridlington Relay Ltd v Yorkshire Electricity Board [1965] 1 All ER 264,
(1965) Ch 436. That case was concerned not with interference caused by the presence of a
building, but with electrical interference caused by the activities of the defendant electricity
board. Buckley I held that such interference did not constitute a legal nuisance, became it
was interference with a purely recreational facility, as opposed to interference with the health
or physical comfort or wellbeing of the plaintiffs. He did not however rule out the possibility
that ability to receive television signals free from interference might one day be recognised
as ‘so important a part of an ordinary householder's enjoyment of his property that such
interference should be regarded as a legal nuisance’ (see [1965) 1 All ER 264 at 271, [1965)
Ch 436 at 447). Certainly the average weekly hours for television viewing in this country,
which your Lordships were told were 24 hours per week, show that many people devote
much of their leisure time to watching television, even allowing for the fact that it is not clear
whether the relevant statistic is based more on the time when television sets are turned on,

27
rather than being actually watched. Certainly it can be asserted with force that for many
people television transcends the function of mere entertainment, and in particular that for the
aged, the lonely and the bedridden it must provide a great distraction and relief from the
circumscribed nature of their lives. That interference with such an amenity might in
appropriate circumstances be protected by the law of nuisance has been recognised in Canada
in Nor-Video Services Ltd v Ontario Hydro (1978) 84 DLR (3d) 221 at 231.

However, as I see the present case, there is a more formidable obstacle to this claim. This is
that the complaint rests simply upon the presence of the defendants' building on land in the
neighbourhood as causing the i elevant interference. The gravamen of the plaintiffs' case is
that the defendants, by building the Canary Wharf Tower, interfered with the television
signals and to caused interference with the reception on the plaintiffs' television sets; though
it should not be overlooked that such interference might be caused by a smaller b building
and moreover that, since it is no defence that the plaintiff came to the nuisance, the same
complaint could result from the sireple fact of the presence of the building which caused the
interference. In this respect the present case is to be distinguished from the Bridlington Relay
case, in which tte problem was caused not just by the presence of a neighbouring building but
by electrical interference resulting from the defendant electricity board's activities.

As a general rule, a man is entitled to build on his own land, though nowadays this right is
inevitably subject to our system of planning controls. Moreover, as a general rule, a man's
right to build on his land is not restricted by the fact that the presence of the building may of
itself interfere with his neighbour's enjoyment of his land. The building may spoil his
neighbour's view (see A-G ex Rel Gray's, Inn Society) v Doughty (1752) 2 VES Sen 453,28
ER 290 and Fishmongers' Co v East India Co (1752) 1 Dick 164, 21 BR 232); In the absence
of an easement, It may restrict the now of air onto his neighbour's land (see Bland v Moldy
(1587) 9 Co Rep 58a, cited in ALDRED Case (1610)9 Co Rep 57b. 77 ER 816; and, again in
the absence of an easement, It may take away light from his neighbour's windows (Dalton v
Henry Angus & Co, Contra of HM Works and Public Buildings v Henry Angus & Co (1881)
6 App Cas 740. nevertheless his neighbour generally cannot complain of the presence of the
building, though this may seriously detract from the enjoyment of his land. As Lindley L j./
said in Chastey v Ackland [1895] 2 Ch 389 at 402 (a case concerned with interference with
the flow of air):

28
Speaking generally, apart from long enjoyment, or some grant or agreement, no one has a
right to prevent his neighbour from building on his own land, although the consequence may
be to diminish or alter the flow of air over it on to land adjoining. So to diminish a flow of
air is not actionable as a nuisance.'

From this it follows that, in the absence of an easement, more 13 required than the mere
presence of a neighbouring building to give rise to an actionable private nuisance. Indeed, for
an action in private nuisance to lie in respect of interference with the plaintiffs enjoyment of
his land, It will generally arise from something h emanating from the defendant's land. Such
an emanation may take many forms—noise, dirt, fumes, a noxious smell, vibrations, and
suchlike. Occasionally, activities on the defendant's land are in themselves so offensive to
neighbours as to constitute an actionable nuisance, as in Thompson Schwab v Costaki [1956)
1 All BR 652, [1956) 1 WLR 335, where the sight of prostitutes and their clients entering
and leaving neighbouring premises were held to fall into that category. Such cases must,
however, be relatively rare. In one New Zealand case, Bank of New Zealand v Greenwood
(19841 1 NZLR 525, the glass roof of a verandah which deflected the 31111.3 rays so that a
dazzling glare was thrown on to neighbouring buildings was held, prima facie. to create a
nuisance; but it seems that the effect was not merely to reflect the sunlight but to deflect it at
such an angle and in such a manner as to cause the dazzling glare, too bright for the a human
ey• to bear, to shine straight into the neighbouring building. One expert witness explained
that the verandah glass diffused the light, as if from a multitude of mirrors, into what he desci
ibed as a high intensity dazzle, which was extremely difficult to look at. On that basis, such a
case can be distinguished from one concerned with the mere presence of a building on
neighbouring land.

At all events the mere fact that a building on the defendant's land gets in the way and so
prevents something from reaching the plaintiffs land is generally speaking not enough for
this purpose. In the result, I find myself to be in agreement on this point with Pill Lj, who
delivered the judgment of the Court of Appeal ([1961 I All ER 482 at 490,1996) 2 WLR 348
at 357), when he expressed the opinion that no action lay in private nuisance for interference
with television caused by the mere presence of a building. That a building may have such an
effect has to be accepted. If a large building is proposed in a neighbouring area, it will
usually be open to local people to raise the possibility of television interference with the local
planning authority at the stage of the application for planning permission. It has, however, to

29
be recognised that the problem may well not be appreciated until after the building is built,
when it will be too late for any such representations to be made. Moreover in the present
case, in which the Secretary of State had designated the relevant area as an enterprise zone
with the effect that planning permission was deemed to have been granted for any form of
development, no application for permission had to be made. But in any event, with the rapid
spread of the availability of cable television in urban areas, interference of this kind is likely
to become less and less important; and it should not be forgotten that satellite television is
also available. In the present case, the problem was solved in the end by the introduction by
the BBC of a new relay station, though not until after a substantial lapse of time.

Right to sue in private nuisance

I turn next to the question of the right to sue in private nuisance. In the two cases now under
appeal before your Lordships House, one of which relates to interference with television
signals and the other to the generation of dust from f the construction of a road, the plaintiffs
consist in each case of a substantial group of local people. Moreover, they are not restricted
to householders who have the exclusive right to possess the places where th•y live, whether
as freeholders or tenants, or even as licensees. They include people with whom householders
share their homes, for example as wives or husbands or partners, or as children or other
relatives. All of these people are claiming damages in private nuisance, c by reason of
interference with their television viewing or by reason of excessive dust.

Judge Havery held that the right to sue in private nuisance did not extend to include so wide
a class of plaintiffs. but was limited to those with a right to exclusive possession of the
relevant property. His decision on this point was. o however, reversed by the Court of
Appeal, who, in the judgment delivered by Pill LJ. held ((1996) I All ER 482 at 498,1996) 2
WLR 348 at 365):

'A substantial link between the person enjoying the use and the land on which he or she Is
enjoying it Is essential but, in Toy judgment, occupation of property, as i home, does confer
upon the occupant a capacity to sue in private nuisance:

Against that decision, the defendants in both action now appeal to your Lordships' House.
The basic position is, in my opinion, most dearly expressed in Professor Newai k's classic
article on The Boundaries of Nuisance' (1949) 65 LQR 480 at 482 when he stated that the

30
essence of nuisance was that 'it was a tort to land. Or to be more accurate it was a tort
directed against the plaintiffs enjoyment of rights over land'.

Subject to this exception, however, it has for many years been regarded as settled law that a
person who has no right in the land cannot sue to private nuisance. For this proposition, it is
usual to cite the decision of the Court of Appeal in Malone v Laskey [1907] 2 KB 141,
[1904-7J All ER Rep 304. In that case, the manager of a company resided in a house to a
licensee of the company which employed him. The plaintiff was the manager's wife who
lived with her husband in the house. She was injured when a bracket fell from a wall in the
house. She claimed damages from the defcndants in nuisance and negligence, her claim in
nuisance being founded upon an allegation, accepted by the jury, that the tall of the bracket
had been caused by vibrations from an engine operating on the defendants' adjoining
premises. The Court of Appeal held that she was unable to st,cceed in her claim in nuisance,
Gorell Barnes P said ([1907) 2 KB 141 at 151, (1904-7) All ER Rep 304 at 305-306):

'Many cases were cited in the course of the argument in which it had been held that actions
for nuisance could be maintained where a person’s rights of property had been affected by
the nuisance, but no authority was deed, nor in my opinion can any principle of law be
formulated, to the effect that a person who has no interest in property, no right of occupation
in the proper e sense of the term, can maintain an action for a nuisance arising from the
vibration caused by the working of an engine in an adjoining house. On that point, therefore,
I think that the plaintiff fails, and that she has no cause of action in respect of the alleged
nuisance.'

The decision in Malone v Laskey on nuisance has since been followed in many a cases, of
which notable examples are Cunard v Antifyre Ltd (1933) 1 KB 551, (19321 Al 1 ER Rep
558 and Oldham v Lawson (No 0 (1976) VR 654. Recently, however the Court of Appeal
departed from this line of authority in Khorasandjian v Bush (1993) 3 AU ER 669, (1993)
QB 727, a case which 1 must examine with some care. The plaintiff, a young girl who at the
time of the appeal was 18, had formed a b friendship with the defendant, then a man of 28.
After a time the friendship broke down and the plaintiff decided that she would have no more
to do with the defendant, but the defendant found this impossible to accept. There followed a
catalogue of complaints against the defendant, including assaults, threats of violence, and
pestering the plaintiff at her parents' home where she lived. As a result of the defendant's

31
threats and abusive behaviour he spent some time in c prison. An injunction was granted
restraining the defendant from various forms of activity directed at the plaintiff, and this
included an order restraining him from 'harassing, pestering or communicating with the
plaintiff. The question before the Court of Appeal was whether the judge had jurisdiction to
grant such an injunction, in relation to telephone calls made to the plaintiff at her parents'
home. The home was the property of the plaintiffs mother, and it was recognised that her
mother could complain of persistent .od unwanted telephone calls made to her. but it was
submitted that the plaintiff, as a mere licensee in her mother's house, could not invoke the tort
of private nuisance to complain of unwanted and harassing telephone calls made to her in her
mother's home. The majority of the Court of Appeal (Peter Gibson I dissenting) rejected e
this submission, relying on the decision of the Appellate Division of the Alberta Supreme
Court in Motherwell v Motherwell (1976) 73 DLR (3d) 62. In that case, the Appellate
Division not only recognised that the legal owner of property could obtain an injunction, on
the ground of private nuisance, to restrain persistent harassment by unwanted telephone calls
to his home, but also that the same f remedy was open to his wife who had no interest in the
property. In the Court of Appeal Peter Gibson I dissented on the ground that it was wrong in
principle that a mere licensee or someone without any interest in, or right to occupy the
relevant land should be able to sue in private nuisance.

But I must go further. If a p!aintiff. such as the daughter of the householder in

Khoeasasuijian v Busk, is harassed by abusive telephone calls, use gravamen of the
ccinplaint lies in the harassment which is just as much an abuse, or indeed an invasion of her
privacy, whether she is pestered in this way in her mother's or her husband's house, or she is
staying with a friend, or is at her place of work, or even in her car with a mobile phone. In
truth, what the Court of Appeal appears to have been doing was to exploit the law of private
nuisance in order to create by the back door a tort of harassment which was only partially
effective in that it was artificially limited to harassment which takes place in her home. I
myself do not consider that this is a satisfactory manner in which to develop the law,
especially when, as in the case in question, the step so taken was inconsistent with another
decision of the Court of Appeal. viz Malone v Laskey (190'] 2 KB 141, [1904-7] All ER. Rep
304, by which the court was bound. In any event, a tort of harassment has now received
statutory recognition (see the Protection From Harassment Act f 1997). We are therefore no
longer troubled with the question whether the common law should be developed to provide
such a remedy Poe these reasons, I do not

32
consider that any assistance can be derived from Khorasandnan v Bush by the plaintiffs in the
present appeals.

It follows that, on the authorities as they stand, an section in private nuisance will only lie at
the suit of a person who has a right to the land affected. Ordinarily, a such a person can only
sue if he has the right to exclusive possession of the land, such as freeholder or tenant in
possession, or even a licenser with exclusive possession. Exceptionally however, as Foster v
Warblington UDC shows, this category may include a person in actual possession who has
no right to be there: and in any event a revisioner can sue in so far his reversionary interest is
h affected. But a mere licensee on the land has no right to sue.

The question therefore arises whether your Lordships should be persuaded to depart from
established principle, and recognise such a right in others who are no more than mere
licensees on the land. At the heart of this question lies a more fundamental question, which
relates to the scope of the law of private nuisance. Here, I wish to draw attention tG the fact
that although, in the past. damages for personal injury have been recovered at least in actions
of public nuisance, there is now developing a school of thought that the appropriate remedy
for such claims as these should lie in our now fully developed law of negligence, and that
personal Injury claims should be altogether excluded from the domain of nuisance. The most
forthright proponent of this approach has been Professor.

In any event, it is right for present purposes to regard the typical cases of private nuisance as
being those concerned b with interference with the enjoyment of land and, as such, generally
actionable only by a person with a right in the land. Characteristic examples of cases of this
kind are those concerned with noise, vibrations, noxious smells and the like. The two appeals
with which your Lordships are here concerned arise from actions of this character.

For private nuisances of this kind, the primary remedy is in most cases an injunction, which
is sought to bring the nuisance to an end, and in most cases should swiftly achieve that
objective. The right to bring such proceedings is as the law stands, ordinarily vested in the
person who has exclusive possession of the land. He or she is the person who will sue, if its
necessary to do so. Moreover he or she can, if thought appropriate, reach an agreement with
the person creating the nuisance, either that it may continue for a certain period of time,
possibly on the payment of a sum of money, or that in shall cease, again perhaps on certain
terms including the time within which the cessation will take place. The former may well
occur when an agreement is reached between neighbours about the circumstances in which

33
one of them may carry out major repairs to his house which may affect the other's enjoyment
of his property. An agreement of e this kind was expressly contemplated by Fletcher
Moulton
1.4 in his judgment in Malone v Laskey [19071 2 KB 141 at 153, (1904-7] All ER Rep 304 at
306. But the efficacy of arrangements such as these depends upon the existence of an
identifiable person with whom the creator of the nuisance can deal for this purpose. If
anybody who lived in the relevant property as a home had the right f to sue, sensible
arrangements such as these might in some cases no longer be practicable.

Moreover, any such departure from the established law on this subject, such as that adopted
by the Court of Appeal in the present case, faces the problem of defining :he category of
persons—ii who would have the right to sue. The Court of Appeal adopted the not easily
identifiable category of those who have a g 'substantial link' with the land, regarding a person
who occupied the premises 'as a home' as having a sufficient link for this purpose. But who is
to be included in this category? It was plainly intended to include husbands and wives, or
partners and their children, and even other relatives living with them. But is the category also
to include the lodger upstairs, or the au pair girl or resident nurse caring for h art invalid who
makes her home in the house while she works there? if the latter, it seems strange that the
category should not extend to include places where people work as well as places where they
live, where nuisances such as noise can be just as unpleasant or distracting. In any event, the
extension of the tort in this way would transform it from a tort to land into a tort to the
person, in which damages could be recovered in respect of something less serious than
personal injury and the criteria for liability were founded not upon negligence but upon
striking a balance between the interests of neighbours in the use of their land. This is. in my
opinion, not an acceptable way in which to develop the law. For all these reasons, I can see
no good reason to depart from the law on this topic as established in the authorities. I would
therefore hold that khorasandijan v Bush must be overruled in so far as it holds that a mere
licensee can sue in private nuisance, and I would allow the appeal or cross-appeal of the
defendants in both b actions and restore the order of Judge Havery on this issue.

Public utility

Can the defendant advance the argument that although his activity may be causing damage to
the defendant, it is in the public interest that he he allowed to continue? The traditional view
is that public interest is irrelevant to the question of private rights and will he ignored. This is

34
dramatically illustrated by a case where Ireland's only cement factory was closed down for

35
causing a nuisance at a time when building was an urgent public necessity (Bellew v Cement
Co LTD(1948) IR 61). The modem view would appear to turn on what remedy is being
sought. In deciding whether or not to grant an injunction the court may take into account
public utility.

A Miller v Jackson (1977) QB 966 Cricket balls frequently entered the plaintiffs garden from
the adjacent cricket club despite the attempts of the club to prevent this. The Court of Appeal
held by 2-1 that a nuisance had been committed but refused by 2-1 to grant art injunction on
the grounds of public utility. The court tell that the utility of the club to the community
outweighed the plaintiffs Interest.

Malice

The bad motive or malice of the defendant may make what would otherwise have been
reasonable conduct unreasonable and a iiuisancc.

Christie v Davey 11 8931 l Ch 318 The plaintiff and defendant lived in adjoining houses.
The plaintiff gave music lessons in the house. This annoyed the defendant who responded by
banging trays on the wall and shouting while the lessons were in progress. The plaintiff was
held entitled to an injunction. The defendants malice made his conduct unreasonable end a
nuisance.

Hollywood Sliver Fox Farm v Emmett 119381 2 KB 488 The plaintiff bred sllver foxes. The
defendant, after an argument, ordered guns to be fired on his own land but close to the
plaintiffs land. His Intention was that the noise would prevent the foxes from breeding. An
Injunction was granted to restrain the defendant. What would otherwise have been a
reasonable act was a nuisance because of his malice.

INTERFERENCE WITH THE USE OR ENJOYMENT OF LAND

A distinction is traditionally drawn in the cases between two kinds of harm sufficient to
found an action of nuisance. It may consist either in (1) some interference with the beneficial
use of the premises occupied by the plaintiff, or (2) some physical injury to those premises,
or to the property of the plaintiff situated thereon. Thus smells emanating from a pig-farm,"
or noise causing deprivation of sleep's might come within the former category. Indeed any
substantial interference with the comfort or convenience of persons occupying or using the
premises is a sufficient interference with the beneficial use of them within the meaning of
this
36
rule. Damage to the land by causing sewage" or flood -water to collect upon it," or vibrations
from powerful engines causing structural dam-age's might come within the latter category.
The line thus drawn between two types of harm is not, however, free from difficulty.' Indeed
it may sometimes be very artificial. Thus land or buildings subjected to noise or smells, on a
recurring basis, are unlikely to prove attractive to purchasers if placed on the market, and
their owners will accordingly suffer loss through the consequent reduction in value.
Nevertheless, provided the distinction is used t4exibly, and not permitted to degenerate into a
rigid classification likely to cause anomaly in borderline cases, it is useful and promotes
clarity. A plaintiff who wishes to establish a nuisance to personal comfort has a heavier
burden of proof to discharge than one who seeks to show a nuisance to property'

1) Interference with beneficial use

Substantial interference with the comfort and convenience in using the premises is actionable
as a nuisance. A mere trifling or fanciful inconvenience is not enough. The rule is De
minimis non curat lex, that means that the law does not take account of very trifling matters.
There should be "a serious inconvenience and interference with the comfort of the occupiers
of the dwelling-house according to notions prex'alent among reasonable English men and
woman..."" The standard of comfort varies from time to time and place to place.”
Inconvenience and discomfort from the point of view of a particular plaintiff is not the test of
nuisance but the test is how an average man residing in the same area would take it. The
plaintiff may be oversensitive. The governing principle here is expressed in some constantly
cited words of Knight Bruce V.-C. in Walter v. Selfie "Ought this inconvenience to be
considered in fact as more than fanciful, more than one of were delicacy or fastidiousness, as
an inconvenience materially interfering with the ordinary comfort physically of human
existence, not merely according to elegant or dainty modes and habits of living, but accord
ing to plain and • . sober and simple notions among the English people?"

The standard of comfortable living which is thus to he taken as the test of a nuisance is not a
single universal standard for all times and places, but a variable standard differing in
different localities. The question in every case is not whether the individual plaintiff suffers
what he regards as substantial discomfort or inconvenience, but whether the reasonable man
who resides in that locality would take the same view of the matter. The reasonable man
connotes a person whose notions and standards of behaviour and responsibility correspond
37
with those

38
generally obtained among ordinary people in our society at the present time, who seldom
allows his emotions to overbear his reason and whose habits are moderate and whose
disposition is equable. He is not necessarily the same as the average man—a term which
implies an amalgamation of counter-balancing extremes. The result is that he who dislikes
the noise of traffic must not set up his abode in the heart of a great city. He who loves peace
and quiet must not live in a locality devoted to heavy industry. Thus in Sturges v.
Bridgman," Thesiger L.J. said: "What would be a nuisance in Belgrave Square would not
necessarily be so in Bermondsey".

The following will illustrate the point further;

BAMFORD vs TURNLEY (1862) 3B& S 66

The plaintiff complained of the smoke and smell arising from the burning of bricks by the
defendant on his land not far from the plaintiffs house. At the trial, Lord Cockburn C.J.
directed the jury, on the authority of Hole v. Barlow (1858) 4 C.B.(N.s.) 334; 140 E.R. 1113,
that if they thought, at the spot was convenient and proper, and the burning of bricks was,
under the circumstances, a reasGnable use by the defendant of his own land, the defendant
would be entitled to a verdict, independently of the small matter of whether there was an
interference with the plaintiffs comfort thereby. The jury accordingly found a verdict for to
defendant. T he plaintiff moved for a rule calling upon the defendant to show cause why a
verdict should not be entered for the plaintiff for 40s., but the Court of Queen's Bench
(Cockburn C.J., Wightman, Hill and Blackburn JJ.) refused the rule. The plaintiff appealed
to the Court of Exchequer Chamber, who allowed the appeal and entered judgment for the
plaintiff, Pollock C.B. dissenting.

Williams J.: ... if the true doctrine is, that whenever, taking all the circumstances into
consideration, including the nature and extent of the plaintiffs enjoyment before the acts
complained of, the annoyance is sufficiently great to amount to a nuisance according to the
ordinary rule of law, an action will lie, whatever the locality may be, then surely the jury
cannot properly be asked whether the causing of the nuisance was a reasonable ise of the
land. If such a question is proper for their consideration in an action such as the present, for
a nuisance by emitting corrupted air into the plaintiff house, we can see no reason why a
similar question should not be submitted to the jury in actions for other violations of the

39
ordinary rights of property; e.g. the, transmission by a neighbour of water in a polluted
condition. But certainly it would be difficult to maintain, as the law now stands, that the jury,
in such an action, ought to be told to find for the defendant if they thought that the
manufactory which caused the impurity of the water was built on a proper and convenient
spot, and that the working of it was a reasonable use by the • defendant of his own land.
Again, where an casement has been gained in addition to the ordinary rights of property, e.g.
where a right has been gained to the lateral passage of light and air, no one has ever
suggested that the jury might he told, in an action for obstructing t.:e free passage of the light
and air, to find for the defendant if they were of opinion -Mat the building which caused the
obstruction was erected in a proper and convenient place, and in the reasonable enjoyment by
the defendant of his own land. And yet, on principle, it is di fficult to see why such questions
should not be left to the jury if Hole v. Barlow was well decided.

We are, however, of opinion that the decision in that case was wrong. ...

Pollock C.B. (dissenting): The question in this case is, whether the direction of the Lord
Chief Justice, professing to be founded on the decision of that Court of Common Pleas in
Hole v. Barlow, was right, and in my judgment substantially it was right, viz., taking it to
have been as stated in the case, viz., "that it the jury thought that the spot was convenient and
proper, and the burning cf the bricks was, under the circumstances, a reasonable use by the
defendant of his own land, the defendant would be entitled to a verdict." I do not think that
the nuisance for which an action will lie is capable of any legal definition which will be
applicable to all cases and useful in deciding them. The question so entirely depends on the
surrounding circumstances--the place where, the time when, the alleged nuisance, what, the
mode of committing it, how, and the duration of it, whether temporary or permanent,
occasional or continual—as to make it impossible to lay down any ruie of law applicable to
every case, and which will also be useful in assisting a jury to come to a satisfactory
conclusion: it must at all times be a question of fact .°vith reference to all the circumstances
of the case.

Most certainly in my judgment it cannot)e laid down as a legal proposition or doctrine, that
anything which, under any circumstances, lessens the comfort or endangers the health or
safety of a neighbour, must necessarily be an actionable nuisance. That may be a nuisance in
Grosvenor Square which would be none in Smithfield Market, that may be a nuisance at
midday which would not be so at midnight, that may be a nuisance which is permanent and

40
continual which would be no nuisance if temporary or occasional only. A clock striking the
hour, or a bell ringing for some domestic purpose, may be a nuisance, if unreasonably loud
and discordant, of which the jury alone must judge; but although not unreasonably loud, if
the owner, from some whim or caprice, made the clock strike the hour every 10 minutes, or
the bell ring continually, I think a jury would be justified in considering it to be a very great
nuisance. In general, a kitchen chimney, suitable to the establishment to which it belonged,
could not be deemed a nuisance, but if built in an inconvenient place or manner, on purpose
to annoy the neighbours, it might, I think, very properly be treated as one. The compromises
that belong to social life, and upon which the peace and comfort of it mainly depend, furnish
an indefinite number of examples where some apparent natura! right is invaded, or some
enjoyment abridged, to provide for the more general convenience or necessities of the whole
community; and I think the more the details of the question are examined the more clearly it
will appear that all the law can do is to lay down some general and vague proposition which
will be no guide to the jury in each particular case that may conic before them.

I think the word "reasonable" cannot be an improper word, and too vague to be used on this
occasion ... If the act complained of be done in a convenient manner, so as to give no
unnecessary annoyance, and be a reasonable exercise cf some apparent right, or a reasonable
use of the land, house or property of the party under all the circumstances, in which I include
the degree of inconvenience it will produce, then I think no action can be sustained, if the
jury find that it was reasonable—as the jury must be taken to have *ound that it was
reasonable that the defendant should be allowed to do what he did, and reasonable that the
plaintiff should submit to the inconvenience occasioned by what was done.

... in my opinion the judgment of the court below ought to be

affirmed. Bramwell B.: I am of opinion that this judgment should be

reversed.

The plaintiff has a prima facie case. The defendant has infringed the maxim sic utere trio ut
alienum non laedas. Then, what principle or rule of law can he rely on to defenci himself? It
is clear to my mind that there is some exception to the general application of the maxim
mentioned. The instances put during the argument, of burning weeds, emptying cesspools,
making noises during repairs, and other instances which would be nuisances if done
wantonly or maliciously, nevertheless may be lawfully done. lt cannot be said that such acts
are not nuisances, because, by the hypothesis, they are; and it cannot be doubted that, if a
91
person maliciously and without cause made close to a dwell ing-house the same offence
smells as

91
may be made in emptying a cesspool, an action would lie. Nor can these cases he got rid of
as extreme cases, because such cases properly test a principle. ... There must be, then, some
principle on which such cases must be excepted. It seems to me that that principle may be
deduced from the character of these cases, and is this, viz., that those acts necessary for the
common and ordinary use and occupation of land and houses may be done, if conveniently
done, without subjecting those who do them to an action. This principle would comprehend
all the cases I have mentioned, but would not comprehend the present, where what has been
done was not the using of land in a common and ordinary way, but in an exceptional manner
—not unnatural nor unusual, but not the common and ordinary use of land. There is an
obvious necessity for such a principle as 1 have mentioned. It is as much for the advantage of
one owner as of another; for the very nuisance the one complains of, as the result of the
ordinary use of his neighbour's land, he himself will create in the ordinary use of his own, and
the reciprocal nuisances are of a comparatively trifling character. The convenience of such a
rule may be indicated by calling it a rule of give and take, live and let live.

(2) Interference with property

Tb.e rule that the standard is determined by the locality where the nuisance is created is
limited to those cases where the nuisance complained of is productive of sensible personal
discomfort. A different principle applies where the nuisance causes a material injury to
property, or sensibly reduces its value. The distinction was drawn in the classic judgment of
Lord Westbury L.C. in SI. Helens Smelting Co. v. Tipping.”

ST. HE LEN'S SMELTING CO. v. TIPPING(I 865) II .HL Cas 642

The plaintiff bOUght a Valuable estate in June 1860. In September 1860 the defendant began
very extensive smelting operations on land a mile and a half away. Its use prior to that time
was uncertain, but the vapours now emanating from the defendant's works were destroying
the plaintiffs shrubs and trees.

At the trial, Mellor J. laid down the law to the jury in the following terms: "That every man is
bound to use his own property in such a manner as not to injure the property of his
neighbour, unless, by the lapse of a certain period of time, he has acquired a prescriptive i
ight to do so. But the law does not regard trifling inconveniences; everything must be looked
at from a reasonable point of _ view; and, therefore, in an action for nuisance to property

92
by noxious

92
vapours arising on the land of another, the injury to be actionable must be such as visibly
to diminish the value of the property and the comfort and enjoyment of it. That, in
determining that question the tints, locality, and all the circumstances should be taken into
consideration; that in counties where great works have been erected and carried on, which
are the means of developing the national wealth, persons must not stand on extreme rights
and bring actions in respect of every matter of annoyance, as, if that were so, business could
not be carried on in those places.”

The jury found a verdict for the plaintiff, damages £361 l8s. 4'/2d. The defendant sought a
new trial on the ground of misdirection, but was unsuccessful in the Queen's Bench (1863) 4
B. & S. 608, 122 E.R. 588, in the Court of Exchequer Chamber (1864) 4 B. & S. 616, 122
E.R. 591, and finally in the House of Lords.

Lord Westbury L.C.: ... My Lords, in matters of this description it appears to me that it is a
very desirable thing to mark the difference between an action brought for a nuisance upon
the ground that the alleged nuisance produces material injury to the property, and an action
brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of
sensible personal discomfort. With regard to the latter, namely, the personal inconvenience
and interference with one's enjoyment, one's quiet, one's personal freedom, anything that
discomposes or injuriously affects the senses or the nerves, whether that may or may not be
denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place
where the thing complained of actually occurs. If a man lives in a town, it is necessary that
he should subject himself to the consequences of those operations of trade which may be
carried on in his immediate locality, which are actually necessary for trade and commerce,
and also for the enjoyment of property, and for the benefit of the inhabitants of the town and
of the public at large. If a man lives in a street where there are numerous shops, and a shop is
opened next door to him, which is carried on in a fair and reasonable way, he has no ground
for complaint, because to himself individually there may arise much discomfort from the
trade carried on in that shop. But when an occupation is carried on by one person in the
neighbourhood of another, and the result of that trade, or occupation, or business, is a
material injury to property, then there unquestionably arises a very different consideration. I
think, my Lords, that in a case of that description, the submission which is required from
persons living in society to that amount uf discomfort which may be necessary for the

93
legitimate and free exercise of the trade of their neighbours, would not apply to
circumstances the immediate result of which is sensible injury to the value of the property.

Now, in the present case, it appears that the plaintiff purchased a very valuable estate, which
lies within a mile-and-a-half from certain large smelting works. What the occupation of these
copper smelting premises was anterior to the year 1860 does not clearly appear. The plaintiff
became the proprietor of an estate of great value in the month of June 1860. In the month of
September 1860 very extensive smelting operations began on the property of the present
appellants, in their works at St. Helen's. Of the effect of the vapours exhaling from those
works upon the plaintiffs property, and the injury done to his trees and shrubs, there is
abundance of evidence in the case.

My Lords, the action has been brought upon that, and the jurors have found the existence of
the injury; and the only ground upon which your Lordships are asked to set aside that verdict,
and to direct a new trial, is this, that the whole neighbourhood where these copper smelting
works were carried on, is a neighbourhood more or less devoted to manufacturing purposes
of a similar kind, and there it is said, that inasmuch as this copper smelting is carried on in
what the appellant contends is a fit place, it may be carried on with impunity, although the
result may be the utter destruction, or the very considerable diminution, of the value of the
plaintiffs property. My Lords, I apprehend that that is not the meaning of the word "suitable,"
or the meaning of the word - "convenien*," which has been used as applicable to the subject.
The word "suitable" unquestionably cannot carry with it this consequence. that a trade may
be carried on in a particular locality, the consequence of which trade may be injury and
destruction to the neighbouring property. Of course, my Lords, I except cases where any
prescriptive right has been acquired by a lengthened user of the place.

As has already been pointed out, however, the borderline between these two classes has not
been clearly drawn: noise and smoke may not only interfere with personal comfort but also
make the premises uninhabitable for the purpose of the business carried on there and so cause
"sensible injury to the value of the property. Further, not every injury to the value of the
property is an actionable loss. There is no right not to have one's property overlooked by that
of one's neighbour. I he temporary nature of the inconvenience or discomfort is a fact to be
taken into account in judging whether it is sufficiently substantial to amount to a nuisance."
But if it is otherwise substantial, it is nonetheless a nuisance because it is merely temporary,

94
evanescent, fleeting or occasional." It is not time but the effect on the plaintiff which is
significant.

c) DAMAGES

Unlike trespass, which is actionable per se, actual damage is required to be proved in an
action for nuisance." In the cosy of public nuisance, the plaintiff can bring an action in tort
only when he proves a special damage to him. In private nuisance, although damage is one of
the essentials, the law will often presume it.

NUISANCE ON HIGHWAY

"Nuisance may be defined, with reference to highways, as any wrongful act or omission
upon or near a highway, whereby the public are prevented from freely, safely, and
conveniently passing along the high.

Which obstructions are actionable

Every obstacle on the highway does not constitute an actionable nuisance, for the highway
would he scarcely usable if it were. The law requires of users of the highway a certain
amount of "give and take" and each person is deemed to assume the normal risks of passage
along the highway by way of inconvenience and even clanger." It is only when the defendant
creates a risk which in the circuinstances is unreasonable that it becomes actionable. For this
reason, the repair of the water, gas and electric mains which run un.der the street, of the
surface of the street itself, and the building and alteration of the houses bordering on it, all
constitute lawful occasions, either under statutory powers or by the comm on law, for
temporary interference with its free passage and its amenities. And if shops and houses are to
get any supplies, vehicles and persons must pause on the highway to deliver them. A
temporary obstruction, provided it is reasonable in amount and duration, is permÎSSÎble."
Whether it is so is a question of fact varying with the circumstances of each particular case.
Nor is every permanent obstruction a nuisance."

Access to and from highway

It is clear that the right oi passage along the highway is a public right” and that interference
with it is remediable by an action for public, not private, nuisance. As we have seen,' this
means that the plaintiff can only sue if he has suffered damage over and above that suffered
by the rest of the public. However, the owner of property adjoining the highway has a

95
common law right of access to the highway' which is a private right remediable by an action
of private nuisance, so that anything which prevents his access (as opposed to making it less
convenient for his purposes') enables the recovery of at least nominal damages.' The private
right of access is subject to the public right of passage, which is the higher right,' but the right
of passage of the public is also subject to the private right of access to the highway and is
liable to be temporarily interrupted by the adjoining owner.' The conflict of these two rights
is resolved on the ordinary principle that a reasonable exercise of both must he allowed.' In
some cases the gist of the plaintiffs complaint has been not so much that his access to and
from the highway has been impeded but that the obstruction has prevented other people
coming on to his premises and doing business with him. It seems that such a state of affairs is
both a private and a public nuisance, though as far as the latter is concerned the loss of trade
will amount to special damage.' Problems have also arisen with queues. A queue as such is
not unlawful even if its occupation of the pavement makes foot-passengers deviate or access
to shops difficult. It is only when it is unreasonable that the proprietors of the establishment
which causes it are liable for nuisance; for example where the queue was at times five deep,
extended far beyond the theatre itself and remained there for very considerable portions of
time, it was held to be a nuisance to the plaintiffs, whose premises were adjacent to the
theatre.' The defendant is not liable if, although the queue was one of prospective customers
at his shop, he was not responsible for it because other circumstances (for example shortage
of supplies in con-sequence of war) were the plaintiff can prove damage." But the defendant
is liable if the obstruction by means of the queue is due to an unusual method of conducting
business; for example by the sale of ice-cream from a window of the shop instead of inside
the shop."

Damage on the highway from premises adjoining the highway

This area deserves special mention because the law is to soine extent unsettled. It is clear that
the mere fact that something (for example a tree, a clock, a sign, an awning or a corbel)
projects over the highway from land or a building adjacent to it does not per se constitute an
actionable nuisance. This must be so, for no conceivable damage is done to anyone and there
is scarcely a garden or a building on the ease of the highway which would not have to be
altered if the law were otherwise." The rule is different where the projection is over private
properly because the rights of the proprietor of it are much wider than the limited right of the
user of a highway.'^ If damage is done owing tc the collapse of the projection on the
highway
96
or by some other mischief traceable to it, the occupier of the premises on which it stood is
liable if he knew of the defect or ought, on investigation, to have known of it. At any rate that
is the rule with respect to a thing that is naturally on the premises, for example a tree. In
Noble vs. Harrison a branch of a beech tree growing on X's land overhung the highway and
in fine weather suddenly broke and fell upon Y's vehicle passing along the highway. Neither
X nor his servants knew that the branch was dangerous and the fracture was due to a latent
defect (indiscoverable by any reasonably careful inspection, and for this reason Y's action
against X in nuisance failed ” In Caminer v. Northern and London Investment Trust Ltd" the
defendants in an action for ( 1 ) negligence or (2) nuisance were held not liable nor either.
They were lessees of land from which a tree t‘ell on to a car driven by C, the plaintiff, on the
highway. The fall of the tree was due to a disease of its roots of which there was no
indication above ground. Evidence was also given that, if the tree had been trimmed or
topped, it was unlikely that it would have fallen, but it did not appear to be dangerous tc any
of the witnesses called. On these facts, it was held by the House of Lords that the plaintiff
had failed to prove that the defendants, as ordinary careful laymen (i.e. not experts), knew, or
ought to have known that the tree was dangerous and therefore they were not liable.

With respect to artificial things (for example a lamp) which project and do damage there is a
conflict of judicial opinion as to the precise nature of the liability for it. According to one
view the duty is no greater than that with respect to natural projections,2 whilst according to
another view it is a strict one analogous to that formulated in Rylands v. Fletcher which
would make the occupier of the premises liable even in the absence of negligence.'

Condition of the highway

At common law a highway authority could not be liable for injury suffered by a user of the
highway and resulting from the authority's failure to discharge its duty to keep the highway
in repair. This immunity did not extend to misfeasance on the highway nor to acts of repair
improperly performed. The distinction between misfeasance and nonfeasance and the rule of
immunity were criticised and eventually the latter was abrogated by section 1 of the
Highways (Miscellaneous Provisions) Act 1961 which came into force on August 3, 1964.
The law is now to he found in the Highways Act 1980. In any action against a highway
authority for damage resulting from its failure to maintain a highway's maintainable at the
public expense, it shall be a defence (without prejudice to any other defence such as
voluntary acceptance of risk and contributory negligence) to prove that the authority had

97
taken such care as in all the circumstances was reasonably required to secure that the part of
the highway to which the action relates was not dangeious for traffic. For the purpose of such
a defence the court shall in particular have regard to:

1. the character of the highway, and the traffic which was reasonably to be expected to
use it;

2. the standard of maintenance appropriate for a highway of that character and used by
such traffic;

3. the state of repair in which a reasonable person would have expected to find the
highway;

4. whether the highway authority knew, or could reasonably have been expected to
.know, that the condition of the part of the highway to which the action relates was likely to
cause danger to users of the highway;

5. where the highway authority could not reasonably have been expected to repair that
part of the highway before the cause of action arose, what warning notice of‘ its condition
had been displayed.

WHO CAN BE SUED

Both. occupier and non occupier can be held liable for the nuisance. The position for this
regard can be appreciated thus

A) OCCUPIERS

Speaking generally, the occupier of premises is liable for all nuisances which exist upon
them during the period of his occupancy. His duty is not merely to refrain from positive acts
of misfeasance which cause harm to his neighbours, but also to take care that such harm is
not caused by his omission or by third parties or by nature, and to abate it if it does. "I have
the control and management", said Sir Charles Abbott C.J.," "of all that belongs to my land
or my house, and it is my fault if I do not so exercise my authority as to prevent injury to
another." Hence an occupier may be responsible for what is done, not only by his servants or
(in some cases) independent contractors,' but also by his invitees or licensees.”' The reason is
that an owner of private property, if he likes to take the necessary measures, can prevent
people coming on his land and causing harm, because he can shut everyone out if he so
wishes."
98
Similarly, an occupier is liable even for a continuing nuisance which already existed on the
premises when he first entered into possession of them.

Nature of liability

When the harm flows from a state of affairs which has been created by the defendant himself
or by someone for whom he is responsible, it is usually no defence that all possible care and
skill have been taken to prevent the operation becoming a nuisance.'3 But when the harm
flows from the act of a trespasser, or otherwise without the act, authority, or permission of
the occupier, the occupier is not responsible for that harm unless, with knowledge or means
of knowledge of the existence of the state of affairs causing the harm, he suffers it to
continue without taking reasonably prompt and efficient means for its abatement."

Five Different Cases.

The problems may arise in five different ways.

(i) The harm may he due to the act of a trespasser or stranger, or to natural causes

In Sedleigh-Denfield's case's a trespasser laid a pipe and grating in the defendants' ditch in so
inefficient a manner that the grating became choked with leaves, and water overflowed onto
the plaintiffs premises. The defendants knew of the existence of the pipe, which drained their
own land, and ought to have recognised the possibility of a flood occurring, but (despite the
lapse of nearly three years) did nothing to remedy the obstruction. "In my opinion", said
Lord Maugham,” "an occupier of land 'continues' a nuisance if with knowledge or presumed
knowledge of its existence he fails to take any reasonable steps to bring it to an end though
with ample time to do so. He adopts' it if he makes any use of the erections, building, bank or
artificial contrivance which constitutes the nuisance". The defendants were held liable
because they had both continued and adopted the nuisance. It has since been held that there
is no difference between such a hazard created by a human agency, such as a trespasser and
one arising from natural causes or act of God.

(ii) The occupier may have taken over the nuisance when he acquired the property Instances
of this are the cases of a tenant of a house which obstructs the plaintiffs lights," and the
purchaser of land on which a nuisance exists."

(iii) The nuisance may be due to a latent defect here the occupier is not liable if he did
not know and could not by the exercise of reasonable care have known of the existence of

59
the

59
nuisance. It has been said that "the occupier or owner is not an insurer". So in Noble v.
Harrison” the occupier of land was held not liable when the branch of a beech tree growing
on his land and overhanging a highway suddenly broke off, owing to a latent defect not
discoverable by any reasonable careful inspection, and damaged the plaintiffs motor-coach
which was passing along the highway.

(iv) Things naturally on the land is now settled that there may be liability in nuisance for the
escape of things naturally on the land, if the occupier has failed to take reasonable care." So
the Court of Appeal has held that an occupier was liable when a steep natural hill collapsed
as a result of earth movements, as he was well aware of the hazard.” But the court, in
assessing what is reasonable, cannot disregard the fact that the occupier has had the nuisance
thrust upon him through no fault of his own, and must not expect an excessive expenditure of
time or money."

(v) Premises on highways It has sometimes been said that the principle that knowledge of the
defect must be proved has one exception. In Wringe v. Cohen" the Court of Appeal decided
that where premises on a highway became dangerous and constitute a nuisance, so,that they
collapse and injure a passer-by or an adjoining owner, the occupier or owner or the premises,
if he has undertaken the duty to repair, is answerable, xviiether he knew or ought to have
known of the danger or not.

B) NON OCCUPIERS

We must now examine in detail the liability in nuisance of non-occupiers. For although it is
generally true that the person liable is the occupier of the land on which the cause of injury
exists, it is lot invariably so. There are four categories to be considered.

(1) Liability of creator of a nuisance

He who by himself or by his servants by a positive act of misfeasance (as opposed to a mere
non-feasance, such as an omission to repair)" creates a nuisance is always liable for it, and
for any continuance of whether he be the owner, the occupier or a stranger, and
notwithstanding the fact that it exists on land which is not in his occupation, and that he has
therefore no power to put an end to it."' Thus if any building obstructs ancient lights or
interfercs with any other servitude, the builder is liable no less than the occupier of the land
on which the building stands." Moreover, this liability is a continuing one, extending not
merely to the wrongful act itself, but to the continuance of the wrongful state of things

100
which results from

100
it. It is no defence that the defendant has no power to abate or put an end to this state of
things, for he ought not to have created.

(2) Liability of one who authorises another to create or continue a nuisance

On the same principle a lessor, or licensor, of land is liable when he has expressly or
impliedly authorised his lessee, or licensee, to create or continue the nuisance, or when it is
certain to result from the purposes for which the lease or licence of the property was granted.
In Tetley v. Chitty" a local authority which leased land for the purpose of go-kart racing was
held liable for a nuisance found in the circumstances to be an ordinary an.d necessary
consequence of that activity. If, however, the purpose for which the lease is granted is not
such as necessarily to cause a nuisance,42 the landlord is not responsible merely because a
nuisance is in fact created by the manner in which the tenant chooses to conduct his
operations.

(3) Liability of lessor or licensor who lets premise.s with a nuisance on them

A further extension of this principle is that a lessor or licensor is or may be liable when the
nuisance existed at the commencement of the lease or licence, and was known or ought to
have been known by the landlord to exist." It was once Thought that a landlord could exempt
himself from liability by taking from the tenant a covenant to repair,”' but as this would
permit the easy evasion of the duty which arises from the ownership or occupation of
property, the modem tendency is to hold that an injured third pany cannot be adversely
affected by the terms of the contract between landlord and tenant.”

(4) Owner's liability for breach of covenant to repair

This is a branch of the law which has seen some developments." First, it was long ago held
in Payne v. Rogers, that the landlord is liable when the nuisance is due to a breach by him of
the covenants of the lease: for example, when the premises are allowed by him to fall into a
dangerous state of disrepair, and the duty of repair is cast upon him by the terms of the lease.

Secondly, in Wilchick v. Marks, it was held that when there was no agreement between
landlords and tenants as to repairs, but the landlords knew that there was adjoining the street
a defective shutter on premises over which they had expressly reserved the right to enter and
do repairs, they were liable to a passer-by who was injured by the defective shutter.

101
Thirdly, in Mint v. Good, the Court of Appeal also held that this principle, applied when the
landlord impliedly, as distinct from expressly, reserved the right to enter and do repairs. It
was held that such an implication will be easily made in the case of a weekly tenancy: if
nothing is said on the matter both parties will be taken to have contemplated that the
premises will be kept in a habitable state of repair and that this task will be performed by the
landlord,"'

DEFENCES TO NUISANCE

Defence to nuisance are of two types effectual and non effectual

EFFECTUAL DEFENCES

1) Prescription

The right to commit a private nuisance may in theory" be acquireo by prescription. In order
to establish such a claim the defendant must show that in doing the acts complained of he
was acting openly and to the knowledge of the owner of the servient tenement. Subject to
these conditions, after a nuisance has been continuously in existence for 20 years, a
prescriptive right to continue it is acquired as an easement appurtenant to the land on which it
exists. On the expiration of this period the nuisance becomes legalised al, initio, as if it had
been authorised in its commencement by a grant from the owner of the servient land." It is
not sufficient, however, that the operations of the defendant which now cause the nuisance
have been continued for the space of 20 years; they must have been a nuisance for that
period. The time runs, not from the day when the cause of the nuisance began, but from the
day when the nuisance began. In Sturges v. Bridgman" the defendant had for more than 20
years used certain heavy machinery in his business as a confectioner. His premises in
Wigmore Street adjoined the lower end of the garden of the plaintiff, a physician in Wirn
pole Street. Some short time before the action the plaintiff built a consulting room at the foot
of his garden, and then found that in the use of it he was seriously inconvenienced by the
noise of the defendant's machinery. The defendant pleaded a prescriptive right, but the
defence was held insufficient because there had been no actual nuisance until the erection of
the plaintiffs consulting room, and until then he had had no right of action. It follows from
the same principle that the nuisance must for 20 years have been a nuisance to the plaintiff or
his predecessors in title, and that it is not enough that it has been for that period a nuisance to
other people in the occupation of other property. The right can be acquired only against

102
specific property, not against all the world. Public nuisances cannot be legalised by
prescription."

Sturges v Bridgman (1878) 1 I Ch 853 Court of Appeal

The plaintiff, a doctor, ran .a practice from his house. Eight years altar moving in to the
house, he built a consulting-room at the end of his garden. The premises of the defendant, a
confectioner, abutted the plaintiffs garden adjar;ent to the consulting-room and they shared a
party-wall. The defendant had two large pestle and mortars used for his business for at least
the previous 26 years. The plaintiff complained that the noise and vibration. seriously
interfered with his practice and in particular listening to patients' chests and otherwise
concentrating. On the issue of the defence of prescription, the Court of Appeal held that the
right to make the noise and vibration commenced only twenty years alter they first became a
nuisance and that they did not become a nuisance until the plaintiff built his consulting-room.

Thesiger LJ.... a man cannot, as a general rule, be said to consent to or acquiesce in the
acquisition by his neighbour of an easement through an enjoyment of which he has no
knowledge, actual or constructive, or which he contests and endeavours to interrupt, or
which he temporarily licenses. It is a mere extension of the same notion . to hold,
that an enjoyment which a man cannot prevent raises no presumption of consent or
acquiescence . . until the noise became art actionable nuisance, which it did not at any
time before the consulting-room was built, the basis of the presumption of the consent,
viz. the power of prevention physically or by action, was never present.

It is said that if this principle is applied in cases like the present, and were carried out to its
logical consequences, it would result in the most serious practical Incon veniences, for a
man might go — say into the midst of the tanneries of Bermondsey, or into any other locality
devoted to a particular trade or manufacture of a noisy or unsavoury character — and, by
building a private residence upon a vacant piece of land, put a stop to such trade or
manufacture altogether. The case also is put of a blacksmith's forge built away from all
habitations, but to which, In course of time, habitations approach. We do not think that either
of these hypothetical cases presents any real difficulty. As regards the first, it may be
answered that whether anything is a nuisance or not is a question to be determined, not
merely by an abstract consideration of the thing itself, but in reference to its circumstances;

103
what would be a nuisance in Belgrave Square would not necessarily be so In Bermondsey;
and where a locality is devoted to a particular trade or manufacture carried on by the traders
or manufacturers in a particular and established manner not constituting a public nuisance,
Judges and juries would be justified In finding, and may be trusted to find, that the trade or
manufacture so carried on in that locality is not a private or actionable wrong. As regards the
blacksmith's forge, that is really an idem per idem case with the present. It would be on the
one hand in a very high degree unreasonable and undesirable that there should be a right of
action for acts which are not in the present condition of the adjoining land, and pos sibly
never will be any annoyance or inconvenience to either its owner or occupier, and it would be
on the other hand in an equally degree unjust, and, from a public point of view, Inexpedient
that the use and value of the adjoining land should, for all time and under all circumstances,
be restricted and diminished by reason of the continuance of acts Incapable of physical
interruption, and which the law gives no power to prevent. The smith In the case supposed
might protect himself by taking a sufficient curtilage to ensure wh.at he does from being at
any time an annoyance to his neighbour, but the neighbour himself would be powerless In the
matter. Individual cases of hardship may occur in the strict carrying out of the principle upon
which we found our judgment, but the negation of the principle would lead even more to
individual hardship, and would at the same time produce a prejudicial effect upon the
development of land for residential purposes ...'

2) Conduct permitted by statute"

Many alleged nuisances are caused by public authorities acting under statutory powers and
the defence of legislative authority is thus partic ularly important in this area."' Everything of
course depends on the construction of the particular statute in question and one must
therefore be wary of laying down definite propositions!' Broadly, however, the position
seems to be as follows

l- Since we are dealing with statutory powers the primary question where what is complained
of is damage arising from the exercise of the powers (as opposed to some "collateral”
damage”'? must be whether that exercise is brim vires the statute.' If it is, the plaintiff who
suffers damage is left without redress unless the statute makes some provision for
compensation.

2- Work causing substantial interference with neighbouring property will not normally be
infra vires the statute unless that interference is the ”inevitable" consequence of the work, i.e.
104
unless it must arise even though the work is carried on with reasonable care and with
approved techniques. The burden of showing inevitability is on the defendant: Where the
statute contains a "nuisance clause"," then if the authority is merely permissive there may be
liability even for the inevitable consequences of the works, but this is not so if the undertaker
is under a statutory duty to carry them out!' A more rational distinction is probably between
statutes which require works to be done in a particular place and those which give the
undertaker a wide discretion in this respect. In the former case, there is no liability provided
that the work is undertaken with reasonable care"; in the latter, the undertaker may be liable
if he chooses to carry out the works in a place where they cause a nuisance to neighbours
when he could have carried them out elsewhere without such consequences:"

INEFFECTIVE DEFENCES

A number of supposed "defences" to nuisance turn out, on analysis, to be ineffective in most

types of situation. Six categories must be considered":

Volenti non fit injuria and contributory negligence It has long been the law that it is
no defence that the plaintiff "came to the nuisance"." A person is not denied redress
for a nuisance if with full knowledge of its existence he chooses to become the o
wner or occupier of land affected by it, e.g. if he knowingly takes a house close to a
noisy factory. The maxim volenti non fit injuria is capable of rio such application. It
would be unreasonable to expect a person to refrain from buying iand merely because
it is already subject to a nuisance."' That this principle is still good law was
reaffirmed in 1977 by the Court of Appeal,"5 albeit by a majority and with some
hesitation, in a case in which damages were awarded to the occupiers of houses
newly-built adjacent to a cricket field, which' had been in use without complaint for
70 years until the proximity of the houses (which were only 102 feet from the centre
of the pitch) meant that escaping balls frequently interfered with the enjoyment of the
occupiers. Similar reasoning will normally prevent contributory negli gence being
successfully relied upon as a defence to a claim in private nuisance, although it is
available in cases of public nuisance.”

(2) Public benefit

It is no defence that the nuisance, although injurious to the individual plaintiff, is beneficial
tc the public at large. A nuisance may be the inevitable result of some manufacture or

105
other

106
operation that is of undoubted public benefit—a benefit that far outweighs the loss inflicted
upon the individual—but it is an actionable nuisance nonetheless." No consideration of
public utility can at common law be suffered to deprive an individual of his rights without
compensation." Public interest may occasionally, however, be a relevant factor leading the
court to deny the plaintiff an injunction, which if granted would have brought about the
cessation of an activity otherwise considered desirable. On this ground the Court of Appeal
refused to order the closure of a cricket field, and awarded damages instead.72

(3) Planning permission

In one case it was suggested that the grant of planning permission could indirectly remove a
cause of action in nuisance, which would otherwise have existed, by effecting a change in the
nature of the relevant locality from a residential to an industrial one." But this suggestion has
been doubted by the Court of Appeal on the ground that it is difficult to reconcile with the
law as it has long been understood: namely, that immunity from liability can only be
conferred by statutory authority and that nuisance claims are therefore "unaffected by the
permissive grant of planning permission, the developer going ahead u'ith the development at
his own risk if his activ‘ities were to cause a nuisance"." Although it is possible that this
principle may now be subject to an exception if the situation involves a "strategic planning
decision affected by considera ions of public interest"," the cases to which the exception
applies are likely to be few.

4) Care and skill

in some cases dicta can be found which say that the tendency of modern law is to assimilate
nuisance and negligence and to move away from strict liability." Bin in Cambridge Water Co
Ltd v. Eastern Counties Leather plc.” Lord Goff said that, in the law of nuisance, "if the user
is reasonable, the defendant will not he liable (or consequent harm to his neighbour's
enjoyment of his land; but if the user is not reasonable, tb.e defendant will be liable, even
though he may have exercised reasonable care and skill to avoid it". The better view' is
therefore that nuisance is not yet, and perhaps never will be, a branch of the law of
negligence."' -

(5) Contributory acts of others,

Two or more persons may jointly create or continue a nuisance and then they will be joint
tort feasors." But it is also no defence that the act of the defendant w'ould not amount
107
to a

108
nuisance unless other persons acting independently of him did the same thing at the same
time." Thus if 20 factories pour out smoke and fumes into the atmosphere, the contribution of
each may be so small and its detrimental effect so inappreciable that it does not per se
amount to a nuisance. Yet the aggregate quantity may be the cause of serious harm or
discomfort. In such a case each of the contributors is liable in nuisance and for his own
proportion of the total damage."

6) Reasonable use of property

He who causes a nuisance cannot avail himself of the defense that he is merely making a
reasonable use of his own property. No use of property is reasonable which causes
substantial discomfort to other persons or is a Source of damage to their property." "If a man
creates a nuisance, he cannot say that he is acting reasonably. The two things are self-
contradictory"." The wrongful character of the defendant's act is not to be tested, as it is in
negligence, by asking whether could have foreseen tfie damage." The proper angle of
approach to ease of alleged nuisance is rather from the standpoint of the victim of the loss or
inconvenience than from the standpoint of the alleged offender."

7) Jus tertii

In Nicholls v. Ely Beet Sugar Factory' Farwell J. held that the defendant to an action for
pollution of a private fishery could not plead this as a defence, i.e. that some third party had a
better title to the land than the plaintiff, but the learned judge left it open whether this applied
to nuisance in general. It is true that at common law jiffs tertii might.be pleaded in certain
actions for conversion of goods but it was irrelevant where the action was based upon
possession, for example trespass." Now that it is established that possession or occupation of
the land is sufficient to entitle the plaintiff to sue for nuisance it is clear that J. Sethi does not
afford a d•fence."

109