2) Interference with Enjoyment and Comfort of Land

A landholder is required to be much more tolerant of occasional interference in her comfort and enjoyment of land. The courts take a fairly robust approach to the extent of give and take that is required, particularly in an urban environment. All citizens must tolerate a certain level of noise, odour, and pollution. In order to prove a private nuisance, the plaintiff must show an interference that in all the circumstances of the case is unreasonable to the ordinary person. No protection is given to fastidious or delicate sensibilities. [Note 8: Walter v. Selfe (1851), 4 De G. & Sm. 315, 64 E.R. 849 at 852.] The circumstances relevant to deciding if the interference is unreasonable include the character of the neighbourhood, the intensity of the interference, the duration of the interference, the time of day and the day of the week of the interference, the zoning designation of the area, the utility of the defendant's activity, the nature of the defendant's conduct, and the sensitivity of the plaintiff. None of these factors is conclusive but they do deserve some further comment.

a) The Character of the Neighbourhood

Nuisance is a relative concept dependent to a large extent on the kind of neighbourhood where the activity takes place. There is a famous distinction drawn in an old English case between Belgrave Square, a quiet residential area of London, and the industrial area of Bermondsey. The Court observed that "what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey." [Note 9: 1 Sturges v. Bridgman (1879), 11 Ch.D. 852 at 865.] Every city has its Belgrave Squares and its Bermondseys and the noise and smells that are tolerable in an industrial and commercial area may be excessive in a residential neighbourhood. The standard of tolerance may also be different in a rural area compared with that of an urban environment. The smells of some agricultural operations that may be reasonable in a rural environment may be intolerable in an urban residential area, and a reasonable level of noise in the city may be too much for a rural area. Those who live in a remote cottage area may have a reasonable expectation of even greater peace and quiet.

b) The Intensity of the Interference

There is no liability for the occasional loud noise, the transient bad smell, the periodic barking of a dog, or the smoke from a barbecue. The interference must be of sufficient intensity to be intolerable to the ordinary Canadian citizen. The kinds of smells that amount to nuisances have, for example, been described as "nauseating," sickening," "very offensive," and "absolutely horrible." [Note 10: 1 See, for example, Appleby v. Erie Tobacco Co. (1910), 22 O.L.R. 533 (C.A.).] More scientific evidence can now be brought in respect of noise. The decibels may be counted and`public health standards may be used as a guide to tolerable limits. Those limits are not, however, conclusive of the issue. In Murdoch v. Glacier Metal Co., [Note 11: [1998] Env. L.R. 732 (C.A.).] the English Court of Appeal held that noise from the defendant's industrial business at night was not a private nuisance even though it was marginally above the World Health Organization recommended level for restorative sleep. Consideration was also given to the proximity of a busy highway to the plaintiff's residence and the absence of complaints from the plaintiff's neighbours.

c) The Duration of the Interference

Reasonable people are tolerant of quite a significant interference with their enjoyment of land if the interference is temporary and short-lived. The occasional loud party next door, the noise and dust from a construction site, and the repair of residential roads are normally in the realm of the tolerable. When the interference is persistent and long-term, the tolerable may become intolerable. Many of the cases where private nuisance has been established deal with long-lasting incompatible land uses.

d) The Time of Day and the Day of the Week

The time of day when the interference takes place is particularly relevant to the acceptable level of noise. In a residential area it is reasonable to expect less noise at night than during the day. Most people work during the day and sleep at night. Noise in the early hours of the morning leading to broken sleep patterns is a particular concern. [Note 12: See, for example, Walker v. Pioneer Construction Co. (1967) Ltd. (1975), 8 O.R. (2d) 35 (H.C.J.), where the noise from the defendant's asphalt plant was held to be a nuisance at night but not during the day.] Those who work nights are out of step with conventional patterns and they cannot demand the same degree of quiet for their sleep. The day of the week has also been regarded as a relevant factor. Courts have taken judicial notice of the fact that many people like to sleep late on weekends and early morning noise on those days, even the ringing of church bells, [Note 13: See the Australian decision in Haddon v. Lynch, [1911] V.L.R. 5 (S.C.), aff'd [1911] V.L.R. 230 (F.C.), where an injunction was awarded to restrain the ringing of church bells until after 9 a.m. on Sundays. ] may be regarded as a nuisance.

e) Zoning Designation

The twentieth century witnessed a massive growth in the governmental control of land use by means of municipal zoning, building regulations, environmental legislation, and other land use and public health legislation and regulations. This has diminished the importance of private nuisance in adjusting and resolving land-use conflict. Canadian courts have not, however, recognized compliance with zoning by-laws or other rules or regulations controlling land use as a defence to an action in private nuisance. It is a factor in determining both the character of the neighbourhood and the standard of tolerable interference but it is not conclusive of the issue. This is a wise policy. Compliance with zoning regulations does not guarantee that the defendant's use of land is not an unreasonable interference with that of a neighbour.

f) The Utility of the Defendant's Conduct

A defendant may not defend an action in private nuisance on the basis that the defendant's use of land is generally beneficial to the public. Nevertheless, the utility of the activity is likely to have some bearing on the standards of tolerance of reasonable persons and, where liability is imposed, it may have an influence on the ultimate remedy. Trains, planes, and automobiles, industrial and commercial activities, emergency vehicles, the construction and repair of infrastructure, and agricultural operations are all productive of some level of interference with the enjoyment of land. They are also indispensable activities in a modern society and courts are acutely aware of the need to avoid decisions that are disruptive of, or incompatible with, essential operations and beneficial societal activities. Courts have, for example, been particularly cautious in respect of agricultural operations such as hog farming and other animal husbandry that carry an unavoidable odour and industries upon which many persons depend for their livelihood. Conversely, a stricter view may be taken towards purely recreational and sporting activities with less vital social benefit. A court may, for example, be less favourably inclined to rock concerts, loud music in residential areas, all-night revelry, and the continual intrusion of golf balls from a neighbouring golf course.

g) The Nature of the Defendant's Conduct

The primary focus in a private nuisance action is the impact of the defendant's activities on the plaintiff's enjoyment of property. Nevertheless, the nature of the defendant's conduct is not ignored. Decision making in private nuisance is influenced to some degree by the comparative assessment of the reasonableness of the conduct of the parties. The courts are, for example, less likely to protect the land use of a defendant who acts unreasonably and is motivated by a desire to cause annoyance, discomfort, and inconvenience to the plaintiff than one that is conducted prudently for a laudable purpose. Christie v. Davey [Note 14: [1893] 1 Ch. 316.] is an illustrative case. The plaintiff, a music teacher, lived in a semi-detached house next to the defendant. The defendant objected to the sound of the music coming from the plaintiff's premises. He protested by hammering and banging trays on the common wall between the two residences. This was done maliciously to annoy the plaintiff and interfere with his vocation. An injunction was issued to prohibit it. The judge observed that he might have taken a different view of the matter if both litigants were entirely innocent.

h) The Sensitivity of the Plaintiff

There is no liability if the plaintiff is abnormally sensitive to the defendant's land use. The standard is that of the reasonable and ordinary resident in the geographic area and the rule in Robinson v. Kilvert [Note 15: 1 Above note 5.] applies equally to interference with the enjoyment and comfort of land. No protection is given to abnormally light sleepers or those who suffer from allergies. There is also no protection available for abnormally sensitive commercial activities such as a special illuminated advertising sign that was adversely affected by flood lighting of the defendant's property. [Note 16: Noyes v. Huron & Erie Mortgage Corp., [1932] O.R. 426 (H.C.J.).] Once a nuisance is established, however, the defendant must take the plaintiff as he finds him and will probably be liable for the full extent of his loss.

3) Non-intrusive Nuisances

The most common form of private nuisance is one that emanates from the defendant's land, crosses the plaintiff's boundary, and intrudes onto the plaintiff's land, causing material damage or a loss of enjoyment or comfort to the plaintiff. Nuisance by noise, smoke, water, fumes, chemicals, and odour take this form. Not all nuisances are of this kind. An unreasonable interference with land may occur without any intrusion onto the plaintiff's land. The usual principles of private nuisance are applicable in these cases, but courts are more reluctant to intervene when there is no tangible or intangible invasion of the plaintiff's property.

There are few circumstances where physical damage to property can be inflicted without some intrusion. The best example is the decision in Pugliese v. Canada (National Capital Commission). [Note 17: (1977), 17 O.R. (2d) 129 (C.A.), varied [1979] 2 S.C.R. 104.] In that case, the defendant's construction of a sewer collector lowered the water table under the plaintiffs' land. This caused the plaintiffs' land to subside, which, in turn, resulted in damage to their houses. The defendant was held liable in private nuisance even though the damage was caused by the removal of water rather than the invasion of some substance onto the property. This case is consistent with the strong protection provided by private nuisance in respect of physical damage.

There is much greater reluctance to impose liability for non-intrusive conduct that interferes with the enjoyment and comfort of land. These cases pose a much greater threat to the defendant's freedom of land use. There is, for example, generally no liability for blocking the plaintiff's view or for preventing the entry of sunlight onto the plaintiff's land. There is also no liability for blocking or changing the circulation of air to the plaintiff's property. [Note 18: Any significant future reliance on the sun or the wind to generate energy may lead to a reconsideration of the absence of a right to sunlight and airflow.] No protection is given to aesthetics. A neighbour's property may be extremely ugly either because of general disrepair and untidiness or because of the architecture, the vivid colour of the paintwork, or the assortment of statues, garden gnomes, and flamingoes in the yard. The courts have wisely avoided becoming art critics and the arbiters of good taste. Nuisance has also seldom been used to provide protection against non-intrusive breaches of privacy. Liability has been imposed for large numbers of intrusive harassing telephone calls, [Note 19: Motherwell v. Motherwell (1976), 1 A.R. 47 (S.C.A.D.).] but there was no liability for spying on the plaintiff's horse-racing track in order to provide radio broadcasts of the races, [Note 20: Victoria Park Racing and Recreation Grounds Co. v. Taylor (1937), 58 C.L.R. 479 (H.C. Austl.).] and an initiative in England to use private nuisance to protect a person from stalking near her home proved to be unsuccessful. [Note 21: Hunter v. Canary Wharf Ltd., [1997] A.C. 655 (H.L.), disapproving Khorasandjian v. Bush, [1993] Q.B. 727 (C.A.).] A court has also refused to give a remedy to plaintiffs who were fearful of their safety and their property values when an isolation hospital was constructed in their neighbourhood. [Note 22: Shuttleworth v. Vancouver General Hospital (1927), 38 B.C.R. 300 (S.C.).] A similar response is likely to those who object to a properly run group home for the mentally ill, juvenile offenders, or prisoners in a pre-release program.

Some non-intrusive interferences with the comfort and enjoyment of land are actionable. The use of a residential house for prostitution, which gave rise to an increase in both vehicular traffic and the number of undesirable persons in the area, has been held to be a nuisance even though there was no intrusive interference with the plaintiff's property. [Note 23: Thompson-Schwab v. Costaki, [1956] 1 W.L.R. 335 (C.A.).] A non- intrusive nuisance may also be found in respect of "spite fences" where a defendant, for no reason other than to cause distress and annoyance to a neighbour, builds a high fence to block sunlight, a view, or the circulation of air. The issue has not arisen in Canada, possibly because of municipal regulations controlling the height of fences, but in the United States courts have been willing to treat such non-intrusive conduct as a nuisance. A similar issue arose in the context of a public nuisance in Manitoba (A.G.) v. Campbell. [Note 24: (1983), 24 Man. R. (2d) 70 (Q.B.), varied [1985] 4 W.W.R. 334 (Man. C.A.).] In that case an injunction was issued to force a farmer to dismantle a seventy-four-foot steel tower on his own property that was in line with the runway of an adjoining airport. The tower served no purpose other than to maliciously disrupt night landings at the airport. The tower was erected on the day before the effective date of a planning order that was designed to control the height of adjacent structures so that flight paths were not interfered with.

Liability was also imposed in Nor-Video Services Ltd. v. Ontario Hydro, [Note 25: (1978), 19 O.R. (2d) 107 (H.C.J.).] where the operations of the defendant's electrical power installations disrupted the reception and transmission of television signals of the plaintiff cable television company. The plaintiff's case was strengthened by the defendant's earlier assurances that there would be no interference with the signals, by its failure to take reasonable steps that would have avoided the interference, and by its failure to honour a promise to attend promptly to any interference that might arise. The case provides a nice contrast to the House of Lords decision in Hunter v. Canary Wharf Ltd. [Note 26: Above note 21.] It arose out of the construction of Canary Tower, an 830-foot high-rise, in London. The building interfered with the television reception of householders in the area for a period of three years before the problem was resolved. They sued for damages, claiming that the enjoyment of their property had been impaired. The Court concluded that the building was not a private nuisance. The defendant had a right to build on his land in accordance with land-planning regulations, and the blocking of television signals was analogous with the blocking of light, air, or view. It was felt that freedom of land use would be unduly hampered by recognizing the plaintiffs' claim.

It is perhaps no coincidence that in the three cases of non-intrusive interference that have been referred to - Thompson, Campbell, and Nor- Video - the defendant's conduct, in addition to causing an unreasonable interference with the enjoyment of plaintiffs' land, was, respectively, illegal, malicious, and negligent. Furthermore, in Canary there was judicial speculation that the result might have been different if the construction of the Tower was in contravention of land-use control legislation. It may be reasonable to conclude that the motive and the nature of the conduct of the defendant have special relevance to the issue of non-intrusive interferences with the enjoyment and comfortable use of land. [Note 27: See also Ontario (A.G.) v. Dieleman (1994), 20 O.R. (3d) 229 (Gen. Div.), additional reasons (1995), 22 O.R. (3d) 785 (Gen. Div.).]

4) Malice

The role of malice on the part of the defendant has already been referred to. It is a factor to be taken into account in deciding if there is a nuisance and it may tip the balance in favour of the plaintiff where the competing land uses are, apart from that factor, evenly balanced. Some reference must, however, be made in this context to the famous case of Bradford Corporation v. Pickles. [Note 28: [1895] A.C. 587 (H.L.).] In that case, the defendant extracted subterranean water that would otherwise have flowed to the use and advantage of the plaintiff municipality. The defendant's conduct was held to be malicious. It was motivated by a desire to force the plaintiff to buy his land at an extravagant sum. Nevertheless, the House of Lords held that the defendant had an absolute legal right to the water and the presence of a bad motive could not make the exercise of that legal right unlawful. It declined to recognize any general principle that rights are given for beneficial and appropriate purposes and that the abuse of rights for antisocial purposes is actionable. It is not easy to integrate Bradford into the modern law of private nuisance. One explanation is that Bradford dealt solely with the defendant's proprietary right to extract water in circumstances where the plaintiff had no competing right to the continuing flow of underground water from above. Since the plaintiff had no protected interest in the water, there was no need to qualify or balance the defendant's exercise of his right of extraction with any right of the plaintiff. Nuisance law does, however, recognize rights of neighbours in respect of most other kinds of interference such as by noise and smells, and in those situations malice becomes relevant in balancing the competing rights. Another factor that may have been of some influence was that Bradford was a case of a non-intrusive nuisance.

5) Coming to the Nuisance

In the landmark case of Sturges v. Bridgman, [Note 29: Above note 9. ] the noise and vibrations of the defendant's commercial operation caused no undue interference with his neighbours until the plaintiff physician built consulting rooms near the boundary of their two properties. The plaintiff argued that there was an unreasonable interference with his use of land. The defendant claimed that his land use was first in time, that it had caused no problem for many years, and that the plaintiff was the author of his own misfortune by coming to the nuisance. The Court refused to give priority to the defendant's first land use and issued an injunction. The principle taken from the decision, that it is no defence that the plaintiff came to the nuisance, is sometimes questioned and sometimes creates unfairness. [Note 30: See Miller v. Jackson, [1977] Q.B. 966 (C.A.), where Denning M.R. expressed unhappiness with the rule and refused to apply it where a cricket ground was transformed into a nuisance when residential houses were built too close to the ground. The two other judges did not share his view on this point.] Nevertheless, it is probably good policy. Society and land use are always in a state of change and flux and it is reasonable to demand some degree of readjustment and accommodation of existing land use to a changing neighbourhood. It does not seem wise to protect pockets of ancient land use that have become incompatible with a changing neighbourhood or modern land-use patterns.

6) Standing

Careful consideration must be given to two questions: Who may be sued in private nuisance and who may sue in private nuisance? Centuries of judicial attention have not, unfortunately, achieved the degree of certainty that one might have anticipated. This is in large part due to the modern trend in nuisance law to extend both the range of persons who may be liable for a private nuisance and the range of plaintiffs eligible to sue in private nuisance. Consequently, the rules about who may be sued and who may sue are in some flux.

a) Defendants

The creator of a nuisance is always liable for it. In most nuisance cases the creator of the nuisance is the possessor of land on which the nuisance arises. Liability may, however, also be imposed on a person who creates a nuisance on the land of another or on public property.

A possessor of land may, in addition to nuisances arising from her own positive conduct, be responsible for nuisances on her land created by a stranger, a predecessor in title, or an act of nature. But liability for the failure to abate or remove such a nuisance depends upon a finding of negligence. The intrusion of fault into this situation is consistent with the normal judicial caution exhibited in situations of nonfeasance. The courts are sensitive to the fact that a nuisance created by a trespasser or an act of nature is thrust upon the defendant and strict liability may impose too heavy a burden on her. The leading case is Sedleigh- Denfield v. O'Callaghan. [Note 31: [1940] A.C. 880 (H.L.) [Sedleigh-Denfield].] In that case, a nuisance was created on the defendant's land by a trespasser. The House of Lords held that, where a possessor knows or ought to know of the nuisance, he must take reasonable steps to abate it. In Sedleigh- Denfield the defendant had known of the unauthorized drainage work on his land for three years but had failed to take an elementary step to prevent the flooding that damaged the plaintiff.

The principle in Sedleigh-Denfield was extended to nuisances arising naturally on the land of the defendant in Goldman v. Hargrave. [Note 32: [1967] 1 A.C. 645 (P.C.).] Prior to that case, landholders enjoyed an immunity from liability when the natural condition of their land damaged their neighbours. This was central to the decision in Rylands v. Fletcher, where the House of Lords distinguished the escape of a non-natural collection of water in a reservoir, for which there was a strict liability, from the natural run-off of water for which there was no liability at all. In Goldman, a gum tree standing on the defendant's property in Western Australia burst into flames when it was struck by lightning. The defendant felled the tree and left it to burn itself out. Before the fire died out, the weather conditions changed and an increase in both the temperature and the wind revived the fire. It spread to the plaintiffs' properties where it caused damage. The defendant sought to distinguish Sedleigh-Denfield on the ground that it dealt with a man-made hazard. The Privy Council, however, held that there was no difference in principle between a natural hazard and an artificial hazard. If the defendant knows or ought to know of a natural or man-made hazard not of his making arising on his land, he is under a duty to take reasonable care to remove it or abate it. The Court also held that, since the duty was one of affirmative action in the face of a hazard not of the defendant's making, a modified objective standard of care was appropriate. The defendant is required to take only those steps that are reasonable in the light of the defendant's physical and material resources and personal circumstances. The defendant was held liable for failing to extinguish the fire. [Note 33: The principle in Sedleigh-Denfield has on occasion been extended unduly and applied in circumstances where the defendant created the nuisance. See L.N. Klar, Tort Law, 2d ed. (Scarborough, Ont.: Carswell, 1996) at 540-41. For a discussion of the responsibilities of landlord and tenant in respect of a nuisance arising from the disrepair of the leased premises and for a nuisance created by the tenant, see A.M. Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997) at 543-44.]

b) Plaintiffs

The conventional view is that private nuisance is a tort to land and is actionable only by those who enjoy proprietary rights or an interest in land. Those with proprietary rights sufficient to sue in private nuisance include an owner in possession, a tenant, an owner out of possession if the nuisance causes permanent damage that would affect his reversionary interest, and, possibly, a licensee with exclusive possession of the land. It does not include mere licensees or permanent occupants of residential premises such as the family members of the owner or tenant, lodgers, or live-in nannies. The restriction of the action in private nuisance to those with proprietary rights creates few problems in respect of actual property damage but it does cause difficulty in respect of both interference with the comfort and enjoyment of the land and personal injuries that may be suffered by permanent occupants who do not have proprietary rights.

Canadian courts have begun to liberalize these rules so that private nuisance provides a broader protection to family members and other permanent occupants without proprietary rights. In Motherwell v. Motherwell [Note 34: Above note 19.] an injunction was issued to protect the spouse of the owner of the family home who was harassed by constant telephone calls, and in MacNeill v. Devon Lumber Co. [Note 35: (1987), 82 N.B.R. (2d) 319 (S.C.A.D.).] the New Brunswick Court of Appeal upheld an award of damages to the children of the joint owners of the family home in respect of the annoyance and discomfort of dust from the defendant's mill. These cases extend private nuisance beyond its traditional focus on property rights to a more general and personal protection of the enjoyment of life of the permanent occupiers of homes and apartments.

This issue arose before the House of Lords in Hunter v. Canary Wharf Ltd. [Note 36: Above note 21.] The action for the disruption of television signals was brought not only by owners and tenants of residential dwellings but also by their spouses, partners, children, and other relatives who shared the home but had no rights to the property. The Court rejected the Canadian position and held that, even if the disruption of television signals was a nuisance, only those with proprietary rights could sue.