Saving Private Nuisance
by Tan Jee Tjun ~ 13 November 2018
The title of this article only exists to satisfy the writer’s odd inclination towards rhyming titles. This short article is to examine the impact of the (not so) recent Federal Court decision of Au Kean Hoe v Persatuan Penduduk D’villa Equestrian  4 MLJ 204 FC on the law of private nuisance, particularly pertaining to the threshold of what amounts to unreasonable interference and cases decided after Au Kean Hoe.
BRIEF OVERVIEW OF THE TORT OF PRIVATE NUISANCE
A tort is a civil wrong that causes a plaintiff to suffer loss or harm resulting in legal liability for the wrongdoer. A person who suffers interference with the enjoyment of his land or property due to the actions of another person can sue the wrongdoer to put an end to the interference (in the form of an injunction) and to also claim damages against that wrongdoer. The interference can be in various forms including noise, sight, smell, vibration, fumes, smoke, ashes, dust, debris or physical invasion or obstruction. In short, if someone prevents you from enjoying your life on your property but his actions are not criminal, then your most likely mode of redress against him is to sue him under the tort of private nuisance.
For a plaintiff to successfully establish an action of under the tort of private nuisance against the defendant (i.e. the alleged wrongdoer), he would have to prove the following elements:
- that there is an interference with the enjoyment of his property;
- that such an interference was unreasonable; and
- that the interference had caused him damage.
Generally, the interference must be a result of a continuing state of affairs rather than a one-off incident. For an interference to be regarded as unreasonable, it would be that ‘goes beyond the normal bounds of acceptable behaviour’.
Generally, the interference must be a result of a continuing state of affairs rather than a one-off incident
Therefore, whether the interference amounts to a nuisance is always a question of degree – the ‘acts complained as constituting the nuisance, such as voice, smells or vibration, will usually be lawful acts which only become wrongful from the circumstances under which they are performed, such as time, place, extent or the manner of performance. In organised society everyone must put up with a certain amount of discomfort and annoyance caused by the neighbours… No precise or universal formula is possible, but a useful test is what is reasonable according to ordinary usages of mankind living in a particular society.”
(See: Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd  5 MLJ 360; Chin Lih Lih & Ors v Sunrise Alliance Sdn Bhd & Anor  MLJU 1437)
Traditionally, the Courts will take into account various factors in determining the existence of private nuisance – often, it is a matter of degree and the Courts will only allow such a claim after taking into account all the circumstances of the particularly case such as ‘the time of the commission of the act complained of; the place of its commission; the manner of committing it, that is, whether it is done wantonly or in the reasonable exercise of rights; and the effect of its commission, that is, whether those effects are transitory or permanent, occasional or continuous’.
(See: Stone v Bolton  1 All ER 237)
THE DECISION OF AU KEAN HOE IN A NUTSHELL
Au Kean Hoe concerns a case where the appellant/plaintiff is the owner of a house in a housing estate and where there were 2 boom gates in operation on the road (which is the sole entrance and exit from the housing estate) when the appellant bought the house. The respondent/defendant was the residents’ association of that housing estate and decided that residents who did not pay the monthly fee for security and maintenance charges would have to open the 2 boom gates themselves without the assistance of security guard on duty (this is quite common for most of such housing estates or housing communities). The appellant stopped paying the charges and when they had to open the 2 boom gates themselves, they were quite unhappy about it and sued the respondent for, amongst others, nuisance in creating an obstruction on the road in question and sought reliefs in the form of an injunction and an order to demolish the boom gates and the accompanying guard house.
The High Court dismissed the appellant’s claim and partly allowed the respondent’s counterclaim by issuing an injunction to restrain the appellant from harassing the respondent and the security guards. The basis for the High Court’s decision can generally be summarized as follows:
- there is nothing unreasonable to direct the guards not to assist the residents who have not paid the security charges especially when all (other) residents had agreed to adhere to that position and had paid for the charges;
- there is no real interference with the comfort or convenience of living according to the standards of the average man; and
- by having to get down from the car to open the gates, the plaintiff was inconvenienced but he was not obstructed from entering his residence.
The Court of Appeal affirmed the decision of the High Court.
The Federal Court affirmed the decisions of the High Court and the Court of Appeal and held that the appellant’s inconvenience was not an actionable nuisance (note: actionable in this context means that you can sue on it).
What is most relevant is the conclusion of the Federal Court that ‘actionable private nuisance is not available for inconvenience’ and that what amounts to actionable private nuisance ‘is a matter of degree at all times and the conduct has to be unreasonable conduct in the circumstances of the case to be actionable’. In the context of actionable private nuisance in a residential area, the Federal Court made the following observation (at paragraph 26):
 We are of the view the underlying rule is a recognition that individuals live within a community and it is always the balancing of the individuals’ inconvenience against the communities’ interest that is of paramount concern. On this point in George Philip & Ors v Subbammal & Ors AIR 1957 Tra-Co 281, the High Court in India observed as follows:
‘Every little discomfort or inconvenience cannot be brought on to the category of actionable nuisance. Consistent with the circumstances under which a person is living, he may have to put up with a certain amount of inevitable annoyance or inconvenience. But if such inconvenience or annoyance exceeds all reasonable limits, then the same would amount to actionable nuisance. The question as to what would be a reasonable limit in a given case will have to be determined on a consideration as to whether there has been a material interference with the ordinary comfort and convenience of life under normal circumstances.’”
Every little discomfort or inconvenience cannot be brought on to the category of actionable nuisance
POST-AU KEAN HOE
Au Kean Hoe seems to be consistent with the already established position that an unreasonable interference is one that ‘goes beyond the normal bounds of acceptable behaviour’ – to establish an action in private nuisance, it would be necessary to prove that the interference must go beyond discomfort or inconvenience alone that it ought to exceed ‘all reasonable limits’.
The following are some of the recent cases concerning the tort of private nuisance post-Au Kean Hoe:
(a) Ranjan Paramalingam dan satu lagi v Persatuan Penduduk Taman Bangsar Kuala Lumpur  MLJU 1347
The plaintiffs in this case are the registered owner and the tenant of the house in question. The house is situated in Bangsar and the defendant is the residents’ association. Similar to Au Kean Hoe, the defendant constructed a guard house with a boom gate along certain roads which would require persons passing by those roads to produce their IC or driving licence to the guards. This action by the defendant is part of a guarded neighbourhood scheme supported by DBKL.
The High Court allowed the defendant’s application to strike out the plaintiffs’ claim on the basis that the Plaintiffs’ claim discloses no reasonable cause of action given that the structures in question were legally constructed and part of the guarded neighbourhood scheme, and the plaintiffs have no locus standi to pursue the claim given that they had failed to establish any injury occasioned to them by the construction of the structures (guard house and boom gate) save that they were inconvenienced by it.
(Update: The plaintiffs appealed against the decision of the High Court to the Court of Appeal. On 23.3.2018, the Court of Appeal allowed the appeal in favour of the plaintiffs and ordered that the action in the High Court be transferred to another judge of the High Court. The defendants subsequently filed an application pursuant to O14A and/or O33 r2 of the Rules of Court, 2012; this application was dismissed by the High Court and on appeal, the Court of Appeal affirmed that decision. The matter is fixed for trial in April 2020.)
(b) Lai Kong Loke & Anor v Ting See Leng  7 MLJ 548
The plaintiffs and the defendant are neighbours. The dispute arose out of the defendant’s continuous conduct of always parking his vehicle in front or next to the front gate of the plaintiffs’ house, causing obstruction and inconvenience for them to exit and enter their vehicles into their house, which caused physical and mental distress to the plaintiffs. As part of the plaintiffs’ evidence, they had CCTV recording and also photographs of the nuisance. The defendant’s defence was a denial of the nuisance and that he had actually entered into an oral agreement with the plaintiffs that allowed him to park his vehicle opposite the plaintiffs’ house.
The High Court, after considering the evidence which was clearly against the defendant and also the public interest to note condone the parking of a vehicle illegally at a yellow line and too near a road junction, allowed the plaintiffs’ claim and granted, amongst others, an injunction to restrain the defendant from continuing the nuisance.
(c) Chin Moy Yen & Ors v Chai Weng Sing & Ors  MLJU 1355
The dispute herein centered on a condominium in which the plaintiffs, who are owners and residents of a condominium unit, had alleged that the 1st to 4th defendants, who are the owners of other condominium units, had carried out illegal renovation works and had rented out their units as student accommodation, thus creating nuisance and disturbance to the plaintiffs. The 5th defendant is the management corporation of the said condominium; they were sued for failing to discharge their duties and responsibilities.
The High Court considered the evidence and decided that the plaintiffs had failed to successfully establish a case of actionable nuisance against the defendants, thus dismissing the plaintiffs’ claim against the defendants. Most notable are the following findings of the Court:
- The evidence was lacking and cannot be purely bare allegations by the Plaintiffs themselves and their own oral statement as they are interested parties.
- One of the plaintiffs had installed a sound recording device but had failed to produce this vital evidence.
- The noises were caused by the tenants of the premises – in the absence of any evidence to show that the owners authorized or approved of the purported nuisance caused by the occupants (i.e. the tenants), the owners as landlord would not be liable for the nuisance caused by them.
- The plaintiffs had failed to establish that the renovation works had caused nuisance to them;
- The claim against the management corporation (the 5th defendant) also failed as they had responded satisfactorily by conducting investigations and taking a variety of steps to resolve the situation.
- The fact that the renovations or illegal partitions are against the law or regulations is of little relevance to a claim for private nuisance – it is only relevant where those matters relate to the interference with the enjoyment of the property – the propriety or legality of those actions on their own is a matter for the local authority and a civil action to enforce those laws against the defendants are erroneous and misplaced.
(d) Wah Shen Development Sdn Bhd v Success Portfolio Sdn Bhd  MLJU 987
This was an appeal against the decision of the High Court of Kuching. The plaintiff and the defendant are neighbours, being owners of parcels of land situated next to each other. The plaintiff is a property developer (having completed a mixed development project of houses and shophouses) whilst the defendant is in the business of pig rearing. The state government had announced and disclosed of its initiative to locate or relocate all pig farms in the Kuching and Samarahan areas to a designated area. The plaintiff sued the defendant under the tort of private nuisance on the basis that the smell from the defendant’s pig farm adversely affected the plaintiff’s sale of its houses and shophouses and sought, amongst others, a perpetual injunction to restrain the defendant from continuing with the nuisance. The defendant’s defence was that the smell was minimal and not unreasonable as it was licensed by the relevant governmental authorities and that it had been operating the pig farm well before the plaintiff’s bought the adjoining land (when the lands in question were originally categorized as agricultural land before the category of land use was converted).
The High Court dismissed the plaintiff’s claim on the basis that, amongst others, the pig rearing operations were licensed and the defendant had operated the pig farm there before the plaintiff bought its land.
The Court of Appeal reversed the High Court’s decision and allowed the plaintiff’s claim on the following main grounds:
- It would seem that the existence of the nuisance is clear from the facts. The High Court Judge had visited the location and made a finding that the pig farm emanated a strong stench that reached the plaintiff’s land.
- The defendant had accepted that the plaintiff is not particularly sensitive to the odour emanating from the pig farm.
- The learned High Court Judge had given undue consideration to the pre-existence of the pig farm given that there has been a conversion of the use of the land by the relevant authorities.
(*Of all the decisions referred to above, this decision is least relevant to the question of threshold (of what amounts to unreasonable interference) given that pig rearing activities would generally result in an interference by smell which would usually be beyond what is acceptable to the average person)
Au Kean Hoe and the subsequent decisions considered above do not appear to alter the general law on the tort of private nuisance as it is – this is evident when we peruse the following observation of the Federal Court (more than 30 years ago) in Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi Mohdi & Ors  2 MLJ 16 pertaining to an action where the complaint of nuisance is caused by noise from an open-air stage and discotheque operated by the defendant despite the defendant’s acquisition of a lease which did not permit for such use.
“Noise in urban society there inevitably will be. Anyone living in town must expect to have to put up with a certain volume of noise from his neighbours and he, in turn, must have the right to make a certain amount of noise in the enjoyment of his property. But it is just as clear that no one has the right to create a volume of noise of such intensity and no one should be asked to put up with such a volume which by any reasonable standard becomes a nuisance.
As Lawton L.J. says in Kennaway v Thompson  3 WLR 361, 366 at page 366:
"Now nearly all of us living in these islands have to put up with a certain amount of annoyance from our neighbours. Those living in towns may be irritated by their neighbours' noisy radios or incompetent playing of musical instruments and they in turn may be inconvenienced by the noise created by our guests slamming car doors and chattering after a late party. Even in the country the lowing of a sick cow or the early morning crowing of a farmyard cock may interfere with sleep and comfort. Intervention by injunction is only justified when the irritating noise causes inconvenience beyond what other occupiers in the neighbourhood can be expected to bear. The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way and there must be a measure of give and take, live and let live."”
I think the first take home point from Au Kean Hoe and the subsequent authorities is that generally, ‘inconvenience or discomfort ≠ actionable nuisance’ unless they go beyond the level that is normally acceptable.
Secondly, these decisions also shed light on a factor which the Court may take into account which is whether the purported nuisance corresponds with the general state of affairs or if they are contrary to any existing laws or regulations.
- In Au Kean Hoe, the Court took into account the fact that the other residents had accepted the position in the notice by the respondent and adhered to that position of paying for the security charges, failing which, they will not get the service of the security guards to open the boom gates and will have to do it themselves.
- In Lai Kong Loke, the vehicle was parked on the yellow line and near road junction.
- In Ranjan Paramalingam, the structures were not illegal and the guarded neighbourhood scheme was supported by DBKL.
- In Wah Shen Development, there was a conversion of the use of land from agriculture to mixed development.