Lecture notes
Obligations Law - Lecture 6 - Nuisance
- Module
- Obligations 2 (LAW08119)
- Institution
- Edinburgh Napier University (ENU)
Lecture notes for the Obligations 2 (Delict) module. Author achieved a first-class grade for the module.
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Lecture 6 – NuisanceCommon Law – Introduction
• Essentially the courts will protect the pursuer’s enjoyment of the land he occupies from
unreasonable interference by others.
• According to Smith, a nuisance comprises an operation on the part of the defender which,
taking into account the natural rights of his neighbours, is unreasonable or extraordinary on
account of being unnatural, dangerous or offensive; and such operation must have caused
material injury.
T B Smith, Short Commentary on the Law of Scotland (1962) p1132.
• The law recognises the individual’s right to enjoy his/her land by imposing a reciprocal duty
on one’s neighbours not to interfere with such enjoyment. Fleming v Hislop (1882) 13 R (HL)
43.
Competing Rights
• The law of nuisance is concerned with striking a balance between competing rights of
proprietors of land.
• The balancing concept is encapsulated in the Latin maxim sic utere tuo ut alienum non laedas:
use your own property so as to not harm another’s.
• Your right to do what you want with your own property must be balanced against your
neighbour’s right not to be disturbed in the enjoyment of his/her property.
• This potential conflict is pragmatically resolved by the courts imposing a duty on each not to
use his land in such an unreasonable way that the pursuers (occupier of the land) enjoyment
of his land is adversely affected.
Test
The test for nuisance involves balancing one party’s right to use their own property against another’s
right to enjoy the use of their own.
The dividing line is drawn where the disturbance becomes greater than the neighbour can reasonably
be expected to tolerate. When that line is crossed, nuisance is established. This is known as the plus
quam tolerabile test.
Watt v Jamieson
• The law was succinctly summarised by Lord President Cooper in Watt v Jamieson 1954 SC56
at 58 where is stated:
• “The balance in all such cases has to be held between the freedom of a proprietor to use his
property as he pleases and the duty on the proprietor not to inflict material loss or
inconvenience on adjoining property; and in every case to answer depends on consideration
of fact and degree… The critical question is whether what he is exposed to was plus quam
, tolerabile [“more than tolerable”] when due weight has been given to all the surrounding
circumstances of the offensive conduct and its effects.”
• “If that is satisfied, I do not consider that our law accepts as a defence that the nature of the
user complained of was usual, familiar and normal. Any type of use which in the sense
indicated above subjects adjoining proprietors to substantial annoyance, or causes material
damage to their property, is prima facie not a reasonable user.”
• Lord President went on to state that in deciding whether a nuisance existed, the proper angle
of approach was from the standpoint of the victim as opposed to that of the alleged offender.
Factors causing nuisance
• In order to ascertain if a nuisance exists the courts take into account a number of factors.
• None of the factors are conclusive by themselves.
• The list of factors may not be exhaustive and the courts, furthermore, do not give one factor
prominence over another in determining whether any given state of affairs constitutes a
nuisance.
• For example, Fleming v Hislop
The court simply focused on the intensity of the smell which emanated from the offending
accumulation of mineral refuse situated on the defendant’s premises. It is difficult, therefore,
to predict in advance what factors will determine the outcome of the case.
Invasion of interest of land
• P requires to prove that D has invaded legal interest of P
• Kennedy v Glenbelle Ltd 1996 SCLR 411
• Lord Kennedy says culpa arises in following situations:
1. defender deliberately damages pursuer’s property (malice);
2. defender knew his act or omission would damage the pursuer’s property
(knowledge);
3. defender did not care whether his act or omission would damage the
pursuer’s property (recklessness);
4. defender’s conduct was so hazardous that he must have known there would
be damage to pursuer’s property (presumption);
5. defender’s actions were carried out carelessly (negligence)
Types of Harm?
• In Hunter v Canary Wharf Ltd [1997] AC 655, pursuer claimed damages for interference with
television reception at their homes allegedly caused by construction of Canary Wharf Tower.
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