Nuisance

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Published May 11, 2020

What is Nuisance?

The tort of nuisance is a civil wrong that involves a person or persons causing indirect, unwarranted and/or unreasonable interference with the interests of others. However, nuisance does not centre around the conduct of the defendant, but rather is concerned with the nature of the particular interest that has been invaded or interfered with. The cause of action of nuisance can be categorised into either private or public nuisance.

What is Private Nuisance?

Private nuisance is the unlawful interference with a person’s use or enjoyment of land or some right over or in connection with it.¹ Private nuisances can occur in two ways:

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

This refers to the act of a defendant causing a direct interference with a plaintiff’s enjoyment of their land (e.g. one neighbour causing air pollution, excessive noise or excessive light that directly affects a neighbour’s enjoyment of their property). To be actionable, the interference with the enjoyment of land must be substantial and unreasonable.³ This means that not all interferences will constitute a nuisance.

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:

Noise⁴
Light⁵
Dust⁶
Fumes⁷
Escaping bullets⁸
Flooding⁹
Encroaching tree roots¹⁰
Smell¹¹
Smoke¹²

The above list is not exhaustive.

Who can sue for Private Nuisance?

Any person who owns or occupies land can sue for private nuisance. If the occupier is not the owner, both the owner and the occupier can sue, although damages will be assessed differently based on the nature of the interest, and the extent to which the parties have suffered loss and damage.¹³ The case of Oldham v Lawson (No 1) [1976] VR 654 is an example of a person being required to have a right in or over property in order to successfully sue for nuisance. In that case, the plaintiffs were a husband and wife who claimed damages for nuisance from noise from the adjoining house. The Court stated that:

“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?

Public nuisance occurs when there is an inference that affects the rights of the public.¹⁴ Example of a public nuisance would be the obstruction of a highway or footpath, or a defendant interfering with the general public’s enjoyment of a public place, such as a park, by acting in a disorderly, offensive, threatening or violent way. Public nuisance involves interferences that affect a wider area, or even an entire community. Public nuisance claims can be actionable without proof of damage and may constitute a criminal offence at statute and in common law.

What are the elements of Public Nuisance?

In order to establish a claim for public nuisance, the following factors will generally need to be established:

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

In determining whether conduct amounts to nuisance, the Court will consider other factors as well, such as issues of locality and the defendant’s conduct generally.

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:

Statutory Authority

It is a defence to show that the act causing the nuisance has been authorised by legislation (i.e. noise or air pollution caused by an activity that has been allowed by Parliament, such as the construction of a railway or other infrastructure). However, it is important to note that it is not just the actual activity engaged in that must be authorised by statute – if the activity was engaged in an unreasonable or unwarranted manner, the act may still constitute nuisance.¹⁸

Reasonable Use

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

Consent

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:

Compensatory Damages

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.

Injunction

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.

References

[1] Gartner v Kidman (1962) 108 CLR 12 at 22; Michael Vincent Baker Superannuation Fund Pty Ltd v Aurizon Operations Ltd [2017] QSC 26.

[2] Corbett v Pallas [1995] Aust Torts Reports 81-329.

[3] Clarey v Principal and Council of the Women’s College (1953) 90 CLR 170.

[4] Haddon v Lynch [1911] VLR 231; McKenzie v Powley [1916] SALR 1; Daily Telegraph Co Ltd v Stuart (1928) 28 SR (NSW) 291.

[5] Bank of New Zealand v Greenwood [1984] 1 NZLR 525.

[6] Kidman v Page [1959] Qd R 53; Aldridge v JO Clough & Son Pty Ltd (unreported).

[7] Field v Soccer Association (SA) [1953] SASR 224.

[8] Evans v Finn (1904) 4 SR (NSW) 297.

[9] Travis v Vanderloos (1984) 54 LGRA 268; Corbett v Pallas (1995) 86 LGERA 312.

[10] Young v Wheeler [1987] Aust Tort Report 80-126 (NSWCR); Barton v Chhibber [1988] Aust Torts Reports (VSC).

[11] West v Nicholas (1915) 17 WALR 49 (FC).

[12] Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482.

[13] Alamdo Holdings Pty Ltd v Bankstown City Council [2003] NSWSC 1074; Michael Vincent Baker Superannuation Fund Pty Ltd v Aurizon Operations Ltd [2017] QSC 026.

[14] AG v PYA Quarries Ltd [1957] 2 QB 169.

[15] AG v PYA Quarries Ltd [1957] 2 QB 169.

[16] Benjamin v Storr (1874) LR 9 CP 400.

[17] Walsh v Ervin [1952] VLR 361.

[18] Foxlee v Proserpine Shire River Improvement Trust [1990] 1 Qd R 111.

[19] Corbett v Pallas [1995] ATR 81-329.

[20] Pwllbach Colliery Co Ltd v Woodman [1915] AC 63; Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476.

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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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