It is a general rule of our law that a landowner may not use their property in a way that causes harm to another person. This means that a landowner’s right to use the property is limited and there is an obligation on them not to act in a way that will infringe the rights of a neighbour. The test of whether the landowner’s use of their property fails to comply with this obligation is one of reasonableness and fairness. This principle of reasonableness is relevant to all forms of polluting activities.

EXAMPLE

Derrick lives on a cattle farm in a quiet rural area. His neighbour has set up a device which makes explosive noises at regular intervals during the day and night to scare baboons away from his kitchen vegetable garden. Derrick’s family cannot sleep because of the noise, and his cattle have become restless and uncontrollable.

What can he do? What rights are affected?

It is possible to see the interaction of the three branches of law that have been discussed so far:

• The Constitution (Section 24) gives Derrick the right to an environment that is not harmful to his health or well-being. This right is being infringed by noise pollution.
• The Common Law of Nuisance says that Derrick has the right to enjoy his land without his enjoyment being unreasonably infringed by another person
• The Common Law of Neighbours says that Derrick is entitled to require his neighbour not to use his property (the neighbours) in a way that will infringe Derrick’s legally protected rights

In this case it would be possible to argue that:

• Neighbour Law gives Derrick the right to have his neighbour not cause a greater noise than is reasonable for the carrying out of the neighbour’s economic activities
• The interest which the neighbour is trying to protect (growing a vegetable garden) is very limited
• The method used is not in proportion to the disturbance created by the explosive device
• Consequently the neighbour’s use of his property is not reasonable or fair to Derrick