The Smelter, the Orchard and the Sleepy Village
A metal smelter, Corvan, has operated on the edge of a village for 40 years. Residents, including the Ferreira family, bought their homes after the smelter was built. Corvan's furnaces emit fine dust that settles on the Ferreira orchard, reducing fruit yields by about 30%. The dust also corrodes metal roofs in the village. Separately, Corvan runs noisy night-time loading between 11pm and 4am; noise readings at the Ferreira boundary average 62 dB, above the local guideline of 55 dB. Corvan has a permit from the regulator, but the permit does not authorise excessive dust. The Ferreiras seek an injunction and damages. Corvan argues the village 'came to the nuisance' and that the permit gives it a defence.
1. Advise the Ferreiras on a private nuisance claim. What must they establish, and how do the locality and duration factors apply?
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Private nuisance protects a person's use and enjoyment of land from unreasonable interference. The Ferreiras must show: (1) an interference with their use or enjoyment of land; (2) that is substantial and unreasonable; and (3) that the defendant is responsible for it. They have standing as occupiers of the affected land.
The reasonableness assessment weighs factors. Locality: whether the interference is unreasonable depends on the character of the neighbourhood. A smelter on the edge of a village is an industrial use, but the village is residential and agricultural. The dust corroding roofs and reducing yields is not the ordinary give-and-take of neighbourhood life; it is physical damage to property, which weighs heavily against the defendant.
Duration and intensity: 40 years of operation does not legitimise the interference, but the dust's continuous, cumulative effect strengthens the claim. The noise is intermittent but at night, when background levels are low, and exceeds the guideline by 7 dB. Night-time noise is treated more seriously because of its impact on sleep.
Malice or indifference matters: Corvan continued despite complaints and did not abate the dust. The Ferreiras are likely to establish nuisance for both the dust and the noise, subject to the remedies question.
2. Evaluate Corvan's defences: the regulator's permit and the 'coming to the nuisance' argument.
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Neither defence is likely to succeed as framed.
Statutory authority: a permit can provide a defence where the activity is authorised by statute and the defendant is acting within the terms of the authority, and where the interference is an inevitable consequence of the authorised activity. But the permit here does not authorise excessive dust, and the noise guideline is exceeded. A permit to operate is not a licence to cause unreasonable interference. At most it may show that Corvan's general activity is lawful, which is not the issue. If the permit imposes conditions and Corvan complied with them, that may be relevant to reasonableness, but compliance with a permit is not a complete defence to nuisance where the interference exceeds what the permit contemplates.
Coming to the nuisance: the fact that the Ferreiras bought after the smelter was built is not a defence. The purchaser takes the property with the existing use, but the law does not treat the later arrival as consenting to the nuisance. The character of the neighbourhood is assessed at the time of the claim, and a resident who moves near an established use can still complain if the interference is unreasonable. The 'coming to the nuisance' argument may, however, be relevant to remedies: a court may be reluctant to grant an injunction closing a long-established operation and may award damages instead.
3. What remedies are appropriate, and how does the court choose between injunction and damages?
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The Ferreiras may seek damages for diminution in the value of their land and for past loss of yield, and an injunction to restrain the nuisance. Damages compensate for the interference; they do not license future harm unless the court awards damages in lieu of an injunction.
The choice between injunction and damages is discretionary. A court considers whether the nuisance is continuing, whether the defendant's conduct is reasonable, the impact on the claimant, and the public interest in the defendant's operation. Where an injunction would shut down a major employer serving the community, the court may award damages in lieu under its statutory or equitable power, particularly if the claimant can be compensated adequately.
Here the interference is substantial and continuing, and Corvan has not abated it. The Ferreiras have a strong case for an injunction limited to abating the dust and restricting night noise, rather than closing the plant. A tailored injunction requiring filtration and quieter loading is the proportionate remedy. If the court declines an injunction, damages in lieu should reflect the diminution in value of the Ferreiras' property and the loss of yield, assessed at the date of the award.