Contractual provisions designed to protect the parties to a contract as the result of an unforeseeable or unavoidable event.
Table of Contents
What is Nuisance?
What is Private Nuisance?
Material physical damage to land or property
This refers to an act of the defendant (i.e. the defendant’s interference) causing material damage to the plaintiff’s property which then affects the plaintiff’s use and enjoyment of the property (e.g. one neighbour causing flooding, fire, ground vibrations or encroachment of some sort on another neighbour’s land).2
Interference with enjoyment of land or a disturbance of the comfort, health and convenience caused
What are the Elements of Private Nuisance?
In order to establish a claim for private nuisance, the plaintiff will typically have to establish the following elements:
- The plaintiff owns the property interfered with, or otherwise has the right to possess the property interfered with;
- The interference with the plaintiff’s enjoyment or use of their property was caused by an act, or acts, of the defendant; and
- The interference caused by the defendant was substantial and unreasonable.
What constitutes an “interference” in a nuisance claim?
For a cause of action in nuisance to be enforceable, the ostensible interference with the enjoyment of land must be substantial and unreasonable.
The following are examples of interferences that may be actionable depending on the severity of the interference:
- Escaping bullets8
- Encroaching tree roots10
The above list is not exhaustive.
Who can sue for Private Nuisance?
“Where husband and wife reside in the same house and it is the wife who is the owner, the husband is legally speaking only a licensee and cannot sue in Nuisance in the absence of some particular circumstances which alter his status. Circumstances such as the payment of money due by the owner on the house and the payment of rates (as in this case) …would be insufficient to alter the status.”As a result, only the wife was awarded damages.
What is Public Nuisance?
What are the elements of Public Nuisance?
- The defendant acted in a disorderly, offensive, threatening or violent way;
- The defendant’s behaviour interfered with the public’s enjoyment of, or peaceful passage through, a public place;
- The annoyance or discomfort was substantial and reasonable;15
- The plaintiff(s) suffered particular harm or damage as a result of the defendant’s act(s)16; and
- The particular harm or damage suffered was over and above that suffered by the public in general.17
Defences to Nuisance Claims
If you have been accused of private of public nuisance, there are several defences that may be available to you depending on the circumstances of the claim against you. Some examples of defences to nuisance claims include:
It is a defence to show that the defendant was reasonable in his or her action or behaviour. However, the onus is on the defendant to show that the act causing the interference was reasonable.19
It is a defence to show that the act engaged in that caused the interference was engaged in with the plaintiff’s consent. Consent can either be express or implied.20
The above list is not exhaustive, and other defences may be available depending on the circumstances of each individual matter. Accordingly, if you have been accused of nuisance, you should seek immediate legal advice to explore your legal options in order to limit any liability you might have.
Remedies for Nuisance
If you have been the victim of nuisance, there are several remedies that may be available to you depending on the circumstances of your claim:
The primary remedy for nuisance are damages. A plaintiff will usually seek damages where the interference caused physical harm or where there has been an interference with lateral support (i.e. where land has been adversely affected, such as the underground structure being weakened). Damages are also awarded for non-material interferences. Damages can be awarded for actual loss suffered up to the date of judgement, but not for prospective loss.
An injunction is a Court order preventing a party from doing something. Injunctions are discretionary remedies, which means that they may or may not be granted depending on a variety of factors, including whether damages would be an adequate remedy.
Abatement (also known as Self Help)
A person may be entitled to enter the land of another or take other self-help measures, upon giving of due notice, to abate a nuisance which substantially interferes with the enjoyment of one’s land (e.g. a person may lawfully retake goods which have been wrongfully taken out of the person’s possession).
For when you need Assistance
If your property rights are being interfered with in any way, or you have been accused of interfering with another person’s interest that has caused them to bring a nuisance claim against you, our solicitors are here to help.
Contact Gibbs Wright Litigation Lawyers today about a nuisance matter for a free and confidential consultation regarding your legal rights and options.
 Gartner v Kidman (1962) 108 CLR 12 at 22; Michael Vincent Baker Superannuation Fund Pty Ltd v Aurizon Operations Ltd  QSC 26.
 Corbett v Pallas  Aust Torts Reports 81-329.
 Clarey v Principal and Council of the Women’s College (1953) 90 CLR 170.
 Haddon v Lynch  VLR 231; McKenzie v Powley  SALR 1; Daily Telegraph Co Ltd v Stuart (1928) 28 SR (NSW) 291.
 Bank of New Zealand v Greenwood  1 NZLR 525.
 Kidman v Page  Qd R 53; Aldridge v JO Clough & Son Pty Ltd (unreported).
 Field v Soccer Association (SA)  SASR 224.
 Evans v Finn (1904) 4 SR (NSW) 297.
 Travis v Vanderloos (1984) 54 LGRA 268; Corbett v Pallas (1995) 86 LGERA 312.
 Young v Wheeler  Aust Tort Report 80-126 (NSWCR); Barton v Chhibber  Aust Torts Reports (VSC).
 West v Nicholas (1915) 17 WALR 49 (FC).
 Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482.
 Alamdo Holdings Pty Ltd v Bankstown City Council  NSWSC 1074; Michael Vincent Baker Superannuation Fund Pty Ltd v Aurizon Operations Ltd  QSC 026.
 AG v PYA Quarries Ltd  2 QB 169.
 AG v PYA Quarries Ltd  2 QB 169.
 Benjamin v Storr (1874) LR 9 CP 400.
 Walsh v Ervin  VLR 361.
 Foxlee v Proserpine Shire River Improvement Trust  1 Qd R 111.
 Corbett v Pallas  ATR 81-329.
 Pwllbach Colliery Co Ltd v Woodman  AC 63; Lyttelton Times Co Ltd v Warners Ltd  AC 476.
The content of this publication is intended as general commentary only and may not be suitable or applicable to your personal circumstances. It is not intended to replace independent legal advice. You can contact us at our Brisbane Office for a free consultation on a range of litigation matters on (07) 3088 6364.
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