8i NUISANCE

NO ELEMENTS LAW CASES FACTS OF THE

CASE
Plaintiff suffers no special s.8(1) Govt • Koperasi
damage Proceedings Pasaraya
Act 1956 Malaysia Bhd v
(Revised Uda Holdings Sdn
1988): Bhd & 41 Ors
- need to [2002]
obtain The written consent is
written mandatory except a
consent from relator action brought
Attorney by local authority.
General Absent that, the
lawsuit failed.

Plaintiff suffers special Pacific Engineering v.

damage: Haji Ahmad Rice Mill
1. Does need to [1966]
prove interest in - No need to obtain
land. written consent from
2. Suffer ‘special AG if plaintiff has
damage’ (serious suffered special
damage like damage.
personal injury,
damage to
property + damage
is direct
consequence &
substancial)

PRIVATE NUISANCE
A) Substantial
interference:

1. Physical damage Goh Chat Ngee & ors The defendant,

to claimant’s land v. Toh Yan & Others who had a
mining licence,
continued to
mine on his
property. The
plaintiff, whose
land was
adjacent to the
defendant's,
claimed that
the defendants
had engaged in
negligence and
nuisance
 through their
mining
activities. The
plaintiff's land
was flooded
after water
escaped and
flooded the
plaintiff's land,
causing it to
crumble and
sink, resulting
in flooding,
erosion, and
settlement.

The court
concluded that
under s44(1)(b)
of the National
Land Code
1965, a
landowner has
a common law
obligation not
to interfere
with the
support
structure of his
neighbor's
land. The
defendant was
also liable in
nuisance for
interfering with
his neighbor's
use and
enjoyment of
his land in an
unreasonable,
unlawful, and
substantial
manner.
Hotel Continental The hotel's
Sdn Bhd v owner, the
Cheong Fatt Tze appellant, was
Mansion Sdn Bhd planning to
build a 20-story
addition. The
respondent,
who owned
 nearby land,
claimed that
the appellants'
piling work
caused major
cracks in his
heritage
building. Their
application for
an injunction
was granted
because it was
determined
that their
building's
safety and
structural
stability would
be jeopardised
until an
alternative
piling system
was
implemented.
2. Interference with Lack of sleep due
the use, comfort to excessive
and enjoyment of noise: Andrea v
the land Selfridge & Co
Ltd [1937]
-P must prove that he
cannot enjoy the comfort
of his land as a
consequence of
defendant’s activity.
Using premises
for prostitution:
Thomson –
Schwab v
Costaki [1956]

Persistent
telephone calls:
Khorasandjian
v Bush [1993]

Emission of toxic
fumes: Dato’ Dr
Harnam Singh v
Renal Link KL
[1996]

Tunku Norella Ps are house

Suriani Bt owners/
Tunku Yusoff & residents. 1st D
Anor V is the
Kumpulan developer,
Sierramas (M) Sierramas
Sdn Bhd & Anor West; 2nd D
[2011] house owner at
Sierramas
West. Ps’ home
are in close
proximity to
the 2nd D’s
house.

-Issues &
findings by the
court:
-Issue 1:
whether the
2nd D had
conducted
noxious
activities on his
property,
including but
not limited to,
undertaking
regular and
frequent open
burning of
offering

-Held: Emission
of smokes/
noxious
substances has
amounted to
nuisance and
interference
with the Ps'
quiet
enjoyment of
their land and
inevitably
reduces the
amenity value
of their land
was
established.

Issue 2: The
2nd D
appeared to
have allowed
his premise
used for
purpose other
than for single
family
residential
purpose
Held: No direct
evidence from
the plaintiff to
establish the
claim. His
parents will
occasionally
come and
stayed with
him, that does
not mean the
defendant has
breached the
agreement.

Issue 3: 2nd D
allowed
number of
vehicles to be
parked at or
around the
Common
facility Area in
such a manner
as to impede
or obstruct the
free movement
of vehicles of
some of the
house owners
and/or
residents,
including the Ps
herein.
Held: Ps'
witness could
not gave the
particulars or
the vehicle
number that
was alleged to
 be parked at
the Common
Facility Area. Ps
has failed to
prove on the
balance of
probabilities
that the 2nd D
had allowed
vehicle to be
parked
indiscriminately
and thereby
obstruction or
impending the
free flow of
traffic.

Issue 4: Had
constructed
prayer altar in
an obtrusive
location.
Held: D had
failed to
comply with
the condition
of building
prayer altars
and its distance
as required by
the developer.

B) Unreasonableness
:
(i) Extent of damage & St. Helen’s
nature of locality Smelting Co v
Tipping (House
A claimant who lives in a of Lords)
highly industrialised or
urbanised neighbourhood
must accept higher level of
noise or air pollution than
those living in rural areas.

Sedleigh-
Denfield v
O’Callaghan [1
940]

Syarikat
Perniagaan
 Selangor Sdn
Bhd v Fahro
Rozi, Mohdi &
Ors (1981)
(ii) Duration and intensity Delaware
of interference Mansions Ltd v
Westminster
Substantial interference City Council
occurs continuously and [2001]
persistently
Matania v
National
Provincial Bank
Ltd and
Elevenist
Syndicate Ltd
[1936]

(Temporary
noise and dust
was nuisance)

Spicer v. Smee
[1946]

(Isolated
incident can
also constitute
a nuisance if it
is due to
dangerous
state of affairs
on defendant’s
premises)

(iii) Abnormal sensitivity Heath v. Mayor

of plaintiff of Brighton
(1908)
No place for extraordinary
sensitivity in either persons
or property

law recognises sensitivity

only once unreasonable
and substantial
interference is established.
Sensitivity will not deprive
plaintiff from obtaining a
remedy.
Robinson v
Kilvert [1889]

McKinnon
 Industries Ltd v
Walker [1951]

Bridlington
Relay v
Yorkshire
Electricity
Board [1965]

(iv) Public benefit of Adams v. Ursell

defendant’s activities [1913]

-An injurious activity for

societal benefits will only
be tolerated up to a
certain point

-would constitute
nuisance if the activity
causes damage to the
claimant’s enjoyment of
his property/ livelihood.

-Court will not simply

accept the argument that
leave the plaintiff to carry
the burden alone of an
activity from which many
others will benefit
Perbadanan
Pengurusan
Taman Bukit
Jambul v
Kerajaan
Malaysia [2000]

(v) Temporary
interference and isolated
incident