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The information in this fact sheet is up-to-date as of January 2011.

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4.5.1 Private Nuisance

4.5.1 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:

1. the defendant knew or ought to have known of the nuisance;
2. the interference or damage to the neighbour's property from the nuisance was reasonably foreseeable; and
3. the defendant did not take reasonable action or steps to end the nuisance.4

4.5.2 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, odours,7 light8 and the flow of water.9

The question of whether or not the interference amounts to nuisance is one of degree and will depend on the circumstances of the case.10 In determining whether the nuisance has occurred, the Court may consider:

4.5.2.1 The frequency, extent and nature of the interference:11

Interference with someone's enjoyment of their land must be at a level that would substantially interfere with the ordinary, physical comfort of a person.12 Inconvenience to a sensitive or fussy person13 or interference with a sensitive use14 will not constitute a nuisance.

Duration and timing of the nuisance will also be relevant.15 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.

4.5.2.2 The ordinary use of land in the area:16

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 a nuisance than if the same occurred in an industrial area.17

4.5.2.3 Whether the use of the land causing the nuisance was ordinary and reasonable.18

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.19 On the other hand, if the land is being used maliciously or recklessly in a way that causes nuisance to the neighbouring land, the Court will usually find such conduct to be a nuisance.20

4.5.3 Can I fix the problem myself?

Where a person has suffered a nuisance, that person may be able to enter the defendant's property to stop the source of the nuisance.21 This, however, is only encouraged where an immediate remedy is required2 and may be inappropriate where the action required to abate the nuisance is disproportionate with the damage suffered.23

If a decision is made to attempt to abate a nuisance, the defendant should be informed before entering their land, unless there is an immediate threat to life or health. Notice is not required where the nuisance can be abated without entering the defendant's land. The person seeking to abate the nuisance must be careful not to cause unnecessary damage to the defendant's property when they take action to stop the nuisance. 24 In addition, if a person takes too long to take action to abate the nuisance, the right to abate may be lost.25

Abatement is an alternative to legal action.26 Therefore, if you take action that is successful in preventing damage caused by the nuisance, you will not also be entitled to damages or another remedy in Court for the nuisance.

You should always be careful about taking any action yourself because if a Court later finds that you did not have a cause of action against the defendant (that is, there was no nuisance), the defendant may then have a cause of action against the you in trespass.

4.5.4 Defences to private nuisance

The following might be defences to a claim in private nuisance:

• If the person alleging the nuisance (the plaintiff) voluntarily assumed the risk27 or consented28 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.29
• 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'.30 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'.31
• 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.32 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.33

4.5.5 Public nuisance

In addition to claims which may be brought in private nuisance, claims may also 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.34

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.

4.5.6 How to bring a claim in nuisance?

A claim in nuisance is commenced by filing a Statement of Claim in the Supreme Court of NSW. The plaintiff can seek an injunction, which is an order requiring the defendant to stop the activity creating the nuisance, and damages for any loss caused as a result of the nuisance.

4.5.7 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

For further information about trees see Fact Sheet 5.3 – Native Vegetation.

1. Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 at 72 per McInerney J (public nuisance).
2. Sedleigh-Denfield v O'Callaghan [1940] AC 880 at 896-7 per Lord Atkin
3. 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.
4. Robson v Leischke [2008] NSWLEC 152 per Preston CJ
5. Thompson v Sydney Municipal Council (1938) 14 LGR (NSW) 32, SC(NSW)
6. Vincent v Peacock [1973] 1 NSWLR 466
7. 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
8. Raciti v Hughes (1995) 7 BPR 14,837, SC(NSW)
9. a number of cases have recognised that where water occurs naturally on one property and damage occurs through its natural flow onto another property, no liability in nuisance will lie. See: Neath RDC v Williams [1951] 1 KB 115; Rouse v Gravelworks Ltd [1940] 1 KB 489. However, where the natural drainage of water has been impeded with artificial structures such as drains or concreting, liability can arise. See: Bennetts v Honroth [1959] SASR 170; Simpson v Attorney-General [1959] NZLR 546.
10. Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145 at 151, 155 per Veale
11. Oldham v Lawson (No 1) [1976] VR 654 at 655 per Harris J
12. Walter v Selfe (1851) 4 De G & Sm 315 per Knight-Brice VC
13. Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145; [
14. Robinson v Kilvert (1889) 41 Ch D 88 per Cotton LJ
15. Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch 409 at 414 per Vaughan Williams J
16. Sturges v Bridgman (1879) 11 Ch D 852 at 865, CA
17. Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145; [1961] WLR 683
18. Bamford v Turnley (1862) (1862) 122 ER 27 at 33.
19. Clarey v The Principal and Council of the Women's College (1953) 90 CLR 170
20. Christie v Davey [1893] 1 Ch 316 at 326-7 per North J
21. Farley & Lewers Ltd v A-G 1962] SR (NSW) 814 at 817
22. Young v Wheeler (1987) Aust Torts Reports ¶80-126 at 68,970 per Wood J, SC(NSW)
23. Burton v Winters [1993] 3 All ER 847 at 852
24. Lagan Navigation Co v Lambeg Bleaching, Dyeing and Finishing Co Ltd [1927] AC 226 at 245 per Lord Atkinson
25. Burton v Winters [1993] 1 WLR 1077 at 1081-2 per Lloyd LJ, CA.
26. Young v Wheeler (1987) Aust Torts Reports ¶80-126 at 68,970 per Wood J, SC(NSW)
27. Kiddle v City Business Properties Ltd [1942] 1 KB 269 at 274-5
28. Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476 at 481
29. Sedleigh-Denfield v O'Callaghan [1940] AC 880 at 886
30. Sedleigh-Denfield v O'Callaghan [1940] AC 880 at 904
31. Southport Corp v Esso Petroleum Co Ltd [1956] AC 218
32. Managers of Metropolitan Asylum District v Hill (1881) LR 6 App Cas 193 at 212 per Lord Watson
33. Lester-Travers v City of Frankston [1970] VR 2
34. Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 at 190-1
35. For more information on proceedings under the Trees (Disputes between Neighbours) Act 2006 see the Land and Environment Court web-site at http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_tree_disputes_information