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Last
updated: 20 February 2009
4.5 Private Nuisance
1 What is private nuisance?
Private nuisance occurs when someone substantially and unreasonably interferes
with,1 or disturbs someone else's ordinary
and reasonable use of the land they own or occupy.2 The
interference occurs without direct entry onto the affected person's land.3
The defendant must be at fault in order to be found liable for nuisance.
Fault on the part of the defendant requires the following:
the defendant knew or ought to have known of the nuisance causing
damage to the neighbour's property;
the interference and damage to the neighbour's property from the nuisance
was reasonably foreseeable and
the defendant did not take reasonable action or steps to end the nuisance.4
Private Nuisance: Practical example
The use of herbicides may result in drift onto and killing of vegetation
on neighbouring property, causing interference with the use and enjoyment
of that land.
If the user failed to take precautions to prevent drift onto neighbouring
land on a windy day and if it could be reasonably predicted
that the drift would occur unless precautions were taken, the defendant
would be liable in nuisance.
2 What does private nuisance cover?
Nuisance can be used to address some environmental concerns, including interference
with enjoyment of property caused by dust,5 noise,6 vibration,
sewerage, odours7 and light.8
The question of whether or not the interference amounts to nuisance is one
of degree and will depend on the circumstances of the case.9 In
determining whether the nuisance has occurred, the Court may consider:
The frequency, extent and nature of the interference;10
Interference with the plaintiff's enjoyment of their land must be at
a level that would substantially interfere with the ordinary, physical
comfort of a person.11 Inconvenience
to a sensitive or fussy person 12 or
interference with a sensitive use13 will
not constitute a nuisance.
Duration and timing of the nuisance will also be relevant.14 For
example, in the case of nuisance caused by noise, noise in the middle
of the night or at other quiet times will be more likely to be found
to be a nuisance.
The ordinary use of land in the area;15
The Court considers what interference ought to ordinarily be expected
to land in a certain area. For example, an emission of fumes and odour
in a residential area would be more likely to be considered an unreasonable
interference with someone's enjoyment of their land (and therefore be
a nuisance), than if the same occurred in an industrial area.16
Whether the use of the land causing the nuisance was ordinary and
reasonable.17
The "ordinary and accustomed use" of a residence within a residential
area will not be a nuisance, even if some inconvenience to a neighbour
is caused.18 On the other hand, if the
use of the land in a way that causes nuisance is malicious towards a
neighbour or reckless in relation to the neighbouring land, the Court
will usually find such conduct to be a nuisance.19
3 Can I fix the problem myself?
Where a plaintiff has a cause of action in nuisance, that person may be
able to enter the defendant's property to stop (or "abate") the source of
the nuisance.20 This, however, is only encouraged
where an immediate remedy is required 21 and
may be inappropriate where the action required to abate the nuisance is disproportionate
with the damage suffered.22
If the plaintiff proposes to abate a nuisance, they should always notify
the defendant before entering the land, unless there is an immediate threat
to life and health. Notice is not required where the nuisance can be abated
without entering the defendant's land. The plaintiff must be careful not
to cause unnecessary damage to the defendant's property when they take action
to stop the nuisance.23 In addition, if a
person takes too long to take action to abate the nuisance, the right to
abate may be lost.24
Abatement is an alternative to legal action.25 Therefore,
if the plaintiff takes action that is successful in preventing damage caused
by the nuisance, the plaintiff is not also entitled to damages or other remedy
in Court for the nuisance.
Plaintiffs should always be careful about taking any action themselves,
because if a Court later finds that the plaintiff did not have a cause of
action against the defendant, the defendant may then have a cause of action
against the plaintiff in trespass.
4 Defences to private nuisance
The following might be defences to a plaintiff's cause of action in private
nuisance:
If the plaintiff voluntarily assumed the risk 26 or
consented 27 to the nuisance. For example,
where the plaintiff, knowing there would be a danger to their property
showed a willingness to accept the danger.
The defence of 'an act of God' may be available where the act committing
the nuisance could not have been reasonably predicted.28
Where a nuisance was created by a third party and the defendant had
no knowledge of it, it may be possible to use the defence of 'an act
of third party'.29 For example, the occupier
of a property may not be liable for a nuisance created by an independent
contractor.
A defendant that has gained a right, for example, in the form of an
easement to cause a nuisance may be able to argue 'prescription'.
Where the nuisance was created in order to avoid a real and imminent
harm, it may be possible to argue the defence of 'necessity'.30
It is also a defence to nuisance that a person has "statutory authority" to
carry out an activity which causes a nuisance if the nuisance is an
inevitable result of the carrying out that activity. 31 For
example, if the damage caused to a plaintiff's property is an inevitable
result of an activity which is authorised under an Act, the defence
of statutory authority may apply and the damage will not be actionable
in nuisance. However, if the damage is not inevitable, but merely a
consequence of the way the person or body decided to carry out its activities,
the defence of statutory authority would generally not apply.
5 Public nuisance
Case study: Public nuisance - Ball v
Consolidated Rutile Ltd (1991) Qd R 524
In Ball v Consolidated Rutile Ltd,34 a
mining company allowed earth and slurry to enter a watercourse, interfering
with fish stocks.
A group of commercial fishing operators took action against the mining
company in public nuisance. The court refused the claim on the basis
that the watercourse was open to all members of the public to fish;
therefore the commercial fishing operators suffered no special loss.
In addition to claims which may be brought in private nuisance, claims may
be brought in public nuisance. "Public nuisance" occurs when a person causes
a nuisance which endangers the health, property or comfort of the public
generally or obstructs the public in the exercise of their rights.33
Actions in public nuisance may be brought on behalf of the community by
the Attorney-General. Actions can also be brought on behalf of affected members
of the community by any person who suffers damage to an extent over and above
that suffered by those members of that section of the community.
Often the grounds on which public nuisance arise are very similar to private
nuisance. The main difference between the two causes of action is that in
the case of public nuisance anyone affected can complain, whereas private
nuisance can only be used to protect private, proprietary interests.
6 How to bring a claim in nuisance?
A claim in nuisance is commenced by filing a Statement of Claim in the appropriate
Court. If you are seeking damages, and the claim is for an amount up to $10,000
it should be filed in the Local Court. For amounts above this and lower than
$750,000, the appropriate Court is the District Court of NSW. For claims
above $750,000 the appropriate Court is the Supreme Court of NSW.
In the District Court and the Supreme Court you can also seek an injunction,
which is an order requiring the defendant to stop the activity creating the
nuisance. Injunctions can be in addition to or instead of an award of damages.
However, the District Court can only issue injunctions in certain circumstances
and they will usually only be temporary so if you are only seeking an injunction
you should probably commence your proceedings in the Supreme Court.
7 Nuisance caused by trees in NSW
In NSW, the Trees (Disputes between Neighbours) Act 2006 provides
for disputes that arise from trees, including branches and roots causing
interference to neighbouring properties, to be dealt with relatively quickly
and cheaply in the Land and Environment Court. The Act states that people
cannot bring an action in nuisance for interference caused by trees covered
in that Act, which is trees on urban zoned land and land not owned by Council.35
Grand Central Car Park Pty Ltd v Tivoli Freeholders[1969]
VR 62 at 72 per
McInerney J (public nuisance).
The appropriate remedy for direct interference with the use and enjoyment
of land owned or occupied by someone (ie when entry onto the land is
involved) is trespass.
Robson v Leischke [2008] NSWLEC 152 per Preston CJ
Thompson v Sydney Municipal Council (1938) 14 LGR (NSW) 32,
SC(NSW)
Halsey v Esso Petroleum Co Ltd[1961]
2 All ER 145 ; Baulkham Hills Shire Council v AV Walsh Pty
Ltd [1968] 3 NSWR 138 (offal plant); Bone v Seale [1975]
1 All ER 787
