NUISANCE TEST FOR REASONABLENESS

Criteria relating to the seriousness of the harm $ $ $ $ $ $ Extent or seriousness of the interference The locality of the land The duration of the interference The time the interference took place Avoidance or mitigation of harm The sensitivity of the complainant

Criteria relating to the usefulness of the harmful conduct $ $ $ The social utility of the defendant=s conduct The motive of the defendant Practicability of preventing harm

De Charmoy v Day Star Hatchery (Pty) Ltd 1 !" #$% SA 1&& #'%
MILLER !"#$%& The difficulty in cases of this nature lies in determining the level at 'hich a disturbance 'hich results from the contiguity of t'o properties( each of 'hich is a potential source of disturbance to the other( ceases to be a Ato)be) expected)in)the)circumstances@ interference 'ith rights of en*oyment of property and becomes an un'arranted and actionable interference+ This is largely a ,uestion of fact and of *udgment and opinion( but there are guiding considerations 'hich should be borne in mind in the interests of fairness to both parties( many of 'hich considerations have fre,uently been stated in -outh African decisions( borro'ing freely from *udgments in the English .ourts+ + + +

De Charmoy v Day Star Hatchery (Pty) Ltd 1 !" #$% SA 1&& #'%
MILLER !"#$%& + + + The factors 'hich have been regarded as material in determining 'hether the disturbance is of a degree 'hich renders it actionable( include /'here the disturbance consists in noise0 the type of noise( the degree of its persistence( the locality involved and the times 'hen the noise is heard+ The test( moreover( is an ob*ective one in the sense that not the individual reaction of a delicate or highly sensitive person 'ho truthfully complains that he finds the noise to be intolerable is to be decisive( but the reaction of Athe reasonable man@ ) one 'ho( according to ordinary standards of comfort and convenience( and 'ithout any peculiar sensitivity to the particular noise( 'ould find it( if not ,uite intolerable( a serious impediment to the ordinary and reasonable en*oyment of his property+1

Las() * Sho+,one CC -.." #-% SA $& #C%

2I33-)4AR5 A !$6%& The respondent contends that the applicants are not entitled to complain because the premises no' occupied by 7n) 2road'ay had been used for the best part of 68 years as 9a place of night)time entertainment: at 'hich music had been played( one assumes at comparable volumes to that experienced by the applicants today( and because they had 9come to the nuisance:+ The contention proceeds that there are many restaurants and bars in the area and that having regard to the established character pf the area the business of 7n)2road'ay 9is being appropriately carried on at ;; -hortmarket -treet( and in the circumstances constitutes the reasonable and natural use of those premises:( 'hereas the applicants: use of <6 Loop -treet for residential purposes 9is inappropriate to its locality:+

Las() * Sho+,one CC -.." #-% SA $& #C% 2I33-)4AR5 A !$=%& A person setting up home in the inner city cannot expect the tran,uillity of life in the leafy suburbs( but in the context of the realities of an urban environment( including the phenomenon of a concentration of places of night time entertainment that is part and parcel of the $6)hour living city concept( such a person is still entitled to expect that his or her neighbour( 'hatever its character( 'ill use its property in such a manner so as not unreasonably to intrude on the ordinary amenities of the inner)city resident+ 4hile established noise levels are certainly a consideration in assessing 'hat the ne' class of inner)city apartment d'ellers might reasonably be expected to tolerate( it cannot be an absolute ans'er for somebody responsible for creating a level of noise 'hich exceeds 'hat the inner)city resident should reasonably be expected to tolerate at night to say simply( 9I 'as making this noise before you moved in and therefore if you 'ish to love here you 'ill *ust have to put up 'ith it( or find a home else'here:+ If an area is suitable for residential occupation( or has been popularly adopted for that use( other users of property in the area must be accommodating of the rights of such residents to the reasonable amenities of life+

Allaclas Investments (Pty) Ltd v Milnerton Golf Club -..& #/% SA 1/$ #SCA%
>ARLAM A !"?%& The passages !from Regal v African Superslate (Pty) Ltd "#=@ /"0 -A "8$ /A0% on 'hich Mr Binns-Ward relied are to be found at "8=A)"8<2( "8<E)B and ""8>)A and read /in my translation0 as follo's&
"+ !"8=A)"8<2% 4e are concerned here in the main 'ith 'hat can be called neighbour la'+ As a general principle everyone can do 'hat he 'ishes 'ith his property( even if it tends to be to the pre*udice or irritation of another but as concerns ad*acent immovable property it almost goes 'ithout saying that there is less room for unlimited exercise of rights+ The la' must provide regulation of the conflicting proprietary and en*oyment interests of neighbours and it does this by limiting proprietary rights and imposing obligations on the o'ners to'ards each other+ -ome of the limitations arise directly from the fact that an o'nerCs rights of o'nership end on his boundaries /5ernburg System " par+ "=$0+ Although it is not a rigid rule it is not permitted for him to perform an action 'hich causes something to come on to his neighbourCs land or has a direct result thereon+ Ae acts for example 'rongfully if he breaks stones on his property in such a 'ay that chips fall on his neighbourCs land /Dig ;+?+;+?0 + + + +

Allaclas Investments (Pty) Ltd v Milnerton Golf Club -..& #/% SA 1/$ #SCA%
$+ !"8<E)B% The usual disturbance by smoke one has to endure from the other( but not excessively /Dig ;+?+;+? and =0+ -o also the normal dampness caused by a bath against a common 'all( but not constant moisture 'hich arises from all too fre,uent use thereof /Dig ;+$+"#0+ It is obvious that the same principle 'ould be able to find application as regards other disturbances such as noises or smells+ /.f .hristenaeus( In Leg Mec!l "6+$#D "6+@$ and @@D "6+6@0+ In Mal!er"e v #eres Municipality( "#?" /60 -+A+ ?88 /A+5+0 at p ?"<( it is accepted Cthat the conse,uences of the usual use of a piece of ground by its o'ners cannot be regarded as an unla'ful interference of his neighbourCs landC+

Allaclas Investments (Pty) Ltd v Milnerton Golf Club -..& #/% SA 1/$ #SCA%
>ARLAM A !$"%& I accept that the first respondentCs use of its land for a golf course does not constitute unusual use+ It is also correct( as Mr Binns-Ward readily conceded( that it 'ould be reasonable for the appellants Cto tolerate some ingress of badly hit golf ballsC+ /.f De #!arm$y v Day Star %atc!ery (Pty) Ltd "#=< /60 -A ";; /50 "#$A ) 2+0 2ut 'hat they have had to endure clearly goes substantially further than 'hat a neighbour is obliged to put up 'ith on the application of the principle of Cgive and take( live and let liveC( 'hich forms the basis of our la' on this point& see It is true( as pointed out by Traverso 5 P( that the land in ,uestion has been used as a golf course since "#$? and that the first appellant kne' at the time that the property 'as purchased that it 'as ad*acent to a golf course and 'ould be susceptible to being hit by golf balls+ 2ut even if that is relevant( 'hich I am prepared to assume for present purposes( it is clear that the appellants did not kno' that the hole 'as badly designed and gave rise to the safety concerns expressed by Mr 4eller and not disputed by Mr acobs+

Allaclas Investments (Pty) Ltd v Milnerton Golf Club -..& #/% SA 1/$ #SCA%
>ARLAM A !"#%& I do not agree 'ith that statement+ It 'ill be recalled that from August $88@ a 6(< metre high net has been in position around the 'estern and southern aspect of the property+ It follo's that at least since August $88@ every golf ball that has come onto the property must have been struck over this net+ It follo's further that all these balls must have come there in circumstances 'here they 'ere likely to cause damage to any property they came into contact 'ith or any person 'ho 'as in their path of travel+ In fact( according to the respondentCs o'n records of golf ball strikes on the first appellantCs property from 3ovember $886 to anuary $88?( $" of the ?< strikes counted by the first respondentCs ball counters 'ere observed going into the s'imming pool+ The papers contain a photograph of the effect of a golf ball strike on the pool cover fitted for child protection( 'hich provides graphic illustration of 'hat the second appellant and his family have been sub*ected to+