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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
