St Helen’s Smelting Co v Tipping [1865] 11 HLC 642

• Defendant’s smelting operation harmed the trees, etc. on Plaintiff’s estate.

• HL held that Defendant’s operation was nuisance. 

Lord Westbury LC

• There is a distinction between alleged nuisances:

  • (1) that cause material injury to the property and

  • (2) those which cause “sensible personal discomfort,” e.g. noise, etc.

• Regarding (2), including things that affect one’s quiet, enjoyment, personal freedom, the nerves or the senses, the circumstances of the place where it occurs determine whether it is a nuisance.

  • E.g. in a town, the processes of business, if carried on in a “fair and reasonable” way, are not nuisances.

• The point is not to classify as nuisances that which is “necessary for the legitimate and free exercise of trade”.

• However in (1) the threshold for something being classified as a nuisance is lower. Here it is a nuisance.

• He doesn’t say what the test is for cases of material injury to property. Tony Weir: The category of “material injury to property” should not include economic damage, since a smell would reduce the value of the property and render the distinction null and void.