Topic 2

Private nuisance is commonly said to be an interference with the use or enjoyment of land. 1
For many years it was regarded as settled law that only a person with a proprietary interest
could sue in private nuisance.2 This was based on the fact that nuisance is a tort against land;
therefore a plaintiff must have an interest in the land affected by the nuisance to sue. 3 The
cases of Motherwell v Motherwell4 and Khorasandjian v Bush5 challenged this view,
suggesting that the right to sue for private nuisance should be extended. However, the later
case of Hunter v Canary Wharf6 (Hunter) overruled these decisions, endorsing the view that
private nuisance is a tort to land, and only those with a proprietary interest may sue. Gillard J
affirmed this principle in the Australian case of Stockwell v Victoria.7
To date, there remains uncertainty, as the High Court of Australia is yet to consider
this issue. This paper examines whether Australian law should confine the right to sue for
private nuisance to those with proprietary interests and licensees with exclusive possession or
if this right should be extended to those living in a home, without a proprietary interest.
Section I examines the relevant case law and outlines the policy reasons supporting the
current approach adopted Australia. Section II discusses whether Australian law should extend
the right to sue for private nuisance, outlines the cases which have adopted this position, and
examines the policy reasons which support this position. Ultimately, this paper will conclude
that Australian law should confine the right to sue for private nuisance to those with
proprietary interests and licensees with exclusive possession.
Section I: The right to sue in private nuisance should be confined.
The current position adopted by Australian law is that only a person in actual possession of
the land affected, either as a freeholder or tenant of the land in question or as a licensee with
exclusive possession of the land8 can sue in private nuisance. This was first established in
Malone v Laskey,9 where the Court of Appeal held that the plaintiff, as the spouse of a
licensee, had no right of action in private nuisance. Fletcher Moulton LJ stated that, a person
who is merely present in the house cannot complain of a [private] nuisance. 10 The Australian
1 Hunter v Canary Wharf Ltd [1997] AC 655.
2 Malone v Laskey [1907] 2 KB 141.
3 Hunter v Canary Wharf Ltd [1997] AC 655, 702.
4 (1976) 73 DLR (3d) 62.
5 [1993] QB 727.
6 [1997] AC 655.
7 [2001] VSC 497.
8 Stockwell v Victoria [2001] VSC 497 [241].
9 [1907] 2 K.B. 141.
10 Ibid, 149.
1

case of Oldham v Lawson11 affirmed this principle. The plaintiffs, husband and wife, sued for
nuisance, and it was held that the wife as owner had title to sue, but the husband, who was a
mere licensee, did not. After Oldham v Lawson12 there were decisions that permitted spouses
and children who reside in the premises but do not have the right to exclusive possession to
sue.13 However, the majority in Hunter overruled these decisions.14 One of the issues in
Hunter was whether it is necessary to have an interest in property to claim in private nuisance
and, if so, what interest in property was sufficient to satisfy this requirement. 15 By a majority
of 4:1 the House of Lords held that the right to sue should be confined to those with exclusive
possession.16 This paper now turns to consider the policy considerations that would influence
Australia to adopt this outcome.
As a matter of policy, it is undesirable to open the floodgates to an undefinable class
of persons to sue in private nuisance. Without the requirement of a proprietary interest, what
would be the rational basis for restricting standing to sue in private nuisance? It is unclear
whether extending the right to sue to all who live in the home is intended to apply to
immediate family only or whether it might be extended to include persons beyond the
immediate family also sharing the home. It has been suggested that the right to sue should be
extended to the spouse17 and children.18 However, the logical basis for stopping at family
members is unclear.
The reasoning in Khorasandjian v Bush19 was that the plaintiff could sue because she
lived at that place. She has an interest in the quiet enjoyment of the property. By this
reasoning, a non-relative living permanently at the same property could equally be the victim
of a private nuisance.20 The question then is where to draw the line. In Hunter, Lord Goff
questioned whether extending the right to sue would include the lodger upstairs, or the au
pair girl or resident nurse caring for an invalid who makes her home in the house while she
works there.21 Indeed, these are all people who live in the home and there does not appear
11 [1976] VR 654.
12 Ibid.
13 Khorasadjian v Bush [1993] QB 727; Motherwell v Motherwell (1976) 73 DLR (3d) 62.
14 [1997] AC 655, 702.
15 Ibid, 684.
16 Ibid, 724.
17 Motherwell v Motherwell (1976) 73 DLR (3d) 62.
18 Khorasadjian v Bush [1993] QB 727.
19 Ibid.
20 Ryszard Piotrowicz, Private lives and private nuisance in English law: Khorasandjian v Bush (1993) 1 Torts
Law Journal 207, 209.
21 [1997] AC 655, 693.

to be any reason to exclude them. Further Lord Goff argued that the right to sue should not be
extended, as courts and litigants deserved clear guidance as to the categories of plaintiffs
permitted to sue and this would not be provided if the right to sue was extended to people
occupying the premises as a home.22
Another policy consideration in favour of confining the right to sue in private nuisance
is to keep the original function of this tort. In Hunter Lord Lloyd states that extending the
right to sue would be to change the whole basisof the cause of action. 23 Private nuisance is a
tort to land; the essence of private nuisance is interference with land or the enjoyment of
land.24 Nuisance is concerned with injury to land, not to the person.25 The majority in Hunter
argued that extending title to sue to individuals without a proprietary interest or exclusive
possession would transform the tort of nuisance from a tort to land into a tort to the person. 26
Further, Blay suggests that once common law permits nuisance to operate outside its
proprietary confinesthere may well be a good case to abolish it as a separate tort and to
subsume it under the broader remedy of negligence. Therefore, the right to sue in private
nuisance should be confined so the tort does not lose its function or worse yet get abolished
altogether.
In many cases there is no practical need to extend the right to sue in private nuisance, as the
injured party may be able to sue in negligence. Where a party suffers personal injury as a
result of the action of the defendant in instances, which may otherwise provide a basis for
action in nuisance if there was a proprietary interest, the party, still retains the option to sue
and recover damages in negligence, like anybody else.27
Section II: The right to sue in private nuisance should be extended.
The accepted position that a proprietary interest is necessary for the right to sue in private
nuisance was challenged in the Canadian case of Motherwell v Motherwell28. The Court held
that a spouse with no proprietary interest was entitled to sue in nuisance. This case was relied
on in the English case, Khorasandjian v Bush29 where the plaintiff, a child living at home with
her parents, with no proprietary interest, was entitled to sue in nuisance. The Queensland
22 Ibid, 693.
23 Ibid, 698.
24 Ibid, 696.
25 Sam Blay, The House of Lords and the Lord of the House: Making New Sense of Nuisance (1999) 73
Australian Law Journal 275, 286.
26 [1997] AC 655; Geoff, McKlay The once and future law of nuisance? (1997) New Zealand Law Journal
222, 224.
27 Blay, above n 25.
28 (1976) 73 DLR (3d) 62.
29 [1993] QB 727.

Court of Appeal in Deasy Investments Pty Ltd v Monrest Pty Ltd 30 subsequently held that the
decision in Khorasandjian v Bush31 should be followed.32 These cases appeared to extend the
ambit of title to sue in private nuisance.
These cases were overruled in Hunter and for many years it has been regarded as
settled law that a person who has no right in land cannot sue in private nuisance. 33 However,
the question is whether Australian law must continue to cling to this position. Lord Cooke
suggests that deciding which position to adopt is a question of the policy of the law. 34 There
are several policy reasons which suggest Australia should deviate from this position and
extend the right to sue in private nuisance.
Cheer suggests the right to sue in private nuisance should be extended, as a matter of
policy, because forcing occupants without a proprietary interest to rely on others for a remedy
is arbitrary and unfair.35 In Hunter Lord Goff stated that if a nuisance were to occur, although
a non-owning spouse would be unable to bring an action, the spouse who has an interest in
the property can bring the necessary proceedings to bring the nuisanceto an end. 36 This idea
can be extended, so that occupants without a proprietary interest can rely on those with the
appropriate proprietary interest for a remedy to nuisance.
In theory this seems workable. However, in practice, there are several issues. First,
having to rely on another person for a remedy diminishes personal autonomy. Second,
individuals may have differing views, so what affects one may not affect the other.37 Only one
party may want to sue, and if that party does not have the sufficient proprietary right, there is
no guarantee a remedy will be sought. 38 Third, where the occupant is not a spouse or family
member, and instead a mere licensee, the issues of right to sue and the distribution of
damages are complicated because cooperation may not prevail to the extent it would in a
household.39

30 Deasy Investments Pty Ltd v Monrest Pty Ltd [1996] QCA 466.
31 [1993] QB 727.
32 Deasy Investments Pty Ltd v Monrest Pty Ltd [1996] QCA 466.
33 [1997] AC 655, 689.
34 Ibid, 711.
35 Ursula Cheer, Private nuisance clarified? (1997) 5 Tort Law Journal 141, 152.
36 [1997] AC 655, 694.
37 Cheer, above n 34.
38 Ibid.
39 John Wightman, Nuisance the environmental tort? Hunter v Canary Wharf in the House of Lords (1998)
61(6) Modern Law Review 870, 878.

Anderson suggests that the right to sue in private nuisance should be extended, as
limiting it to those with proprietary interests is discriminatory.40 Imposing a proprietary
requirement is discriminatory to those who are less able to acquire property. Anderson states
by confining the right to sue to those with proprietary interests women, children, disabled,
ethnic minorities, the unemployed, as well as others who have not yet managed to get their
feet firmly on the property holding ladder 41 will be discriminated again. According to
Anderson, women in particular face discrimination. Due to unequal access to employment,
inequality in pay and taking time out of their careers for child rearing 42 it may be more
difficult for women to acquire proprietary interests compared to their male counterparts.
Accordingly, the right to sue in private nuisance should be extend to all those who occupy the
property as their home as it may be discriminatory to confine this right to those with
proprietary interests, as this is likely to exclude women more often than men for the reasons
mentioned.
Motherwell, Khorasandjian and Lord Cookes judgement in Hunter all favour
extending the right to sue in private nuisance, placing emphasis on the concept of a persons
home. In Khorasandjian, through Motherwell, the concept of home is tied to the assertion
that the plaintiff had a right to live on the land. In Hunter, Lord Cooke favoured extending
title to sue to family members because it gives better effect to widespread conceptions
concerning home and family.43 Lord Cooke considered that occupation of the property as a
home was an acceptable criterion to extend the right to sue in private nuisance to because it
was consistent with the traditional concern for the sanctity of family life.44
To determine which position Australian law should adopt, it is essential to return to the
fact that private nuisance is concerned with protecting the use and enjoyment of land. It is not
a tort concerned with injury to the person. Those without a proprietary interest would sue in
private nuisance not for damage to land, but for the discomfort they have suffered due to the
nuisance.45 This would alter the fundamental nature of private nuisance and risk nuisance
being subsumed by negligence. There is an alternative option for these individuals to sue in
negligence. Therefore it is not necessary for the law to modify an existing tort to
40 Ingrid Anderson, Hunter and Others v Canary Wharf Ltd. The tort of nuisance not for women and
children? (1998) 10(2) Child and Family Law Quarterly 201, 208.
41 Ibid.
42 Ibid.
43 [1997] AC 655, 717.
44 Ibid, 718.
45 Timothy Michael FitzPatrick, Should family members have title to sue in nuisance (1998) 6 Torts Law
Journal 1, 1.

accommodate a new, undefined category of plaintiffs. In order to maintain a tort of private

nuisance, Australian law must adopt the approach taken by the majority in Hunter and confine
the right to sue for private nuisance to those with proprietary interests and licensees with
exclusive possession.
BIBLIOGRAPHY
A Articles/Books/Reports
Anderson, Ingrid, Hunter and Others v Canary Wharf Ltd. The tort of nuisance not for
women and children? (1998) 10(2) Child and Family Law Quarterly 201
Blay, Sam, The House of Lords and the Lord of the House: Making New Sense of Nuisance
(1999) 73 Australian Law Journal 275
Cheer, Ursula, Private nuisance clarified? (1997) 5 Tort Law Journal 141
FitzPatrick, Timothy Michael Should family members have title to sue in nuisance (1998) 6
Torts Law Journal 1
McKlay, Geoff, The once and future law of nuisance? (1997) New Zealand Law Journal 222
Piotrowicz, Ryszard, Private lives and private nuisance in English law: Khorasandjian v
Bush (1993) 1 Torts Law Journal 207
Wightman, John, Nuisance the environmental tort? Hunter v Canary Wharf in the House of
Lords (1998) 61(6) Modern Law Review 870
B Cases
Deasy Investments Pty Ltd v Monrest Pty Ltd [1996] QCA 466
Hunter v Canary Wharf Ltd [1997] AC 655
Khorasadjian v Bush [1993] QB 727
Malone v Laskey [1907] 2 KB 141
Motherwell v Motherwell (1976) 73 DLR (3d) 62
Oldham v Lawson [1976] VR 654
Stockwell v Victoria [2001] VSC 497 [241]