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Nuisance in the ACT

There are two types of civil nuisance under ACT law. These are private nuisance and public nuisance. A private nuisance is anything that interferes with a person’s right to enjoy their residence. A public nuisance affects all people or the public at large. It must be something substantial and something unreasonable.

What is a private nuisance?

For a person to successfully bring a claim of private nuisance against another person, they must prove:

  • That to a reasonable person the nuisance would be considered real and substantial;
  • That the nuisance interferes with their use and enjoyment of their residence.

What is a public nuisance?

A public nuisance affects the public at large. Some things that may be considered in deciding whether a reasonable person would find the nuisance substantial and real include:

  • The nature of the interference and extent of it;
  • The social or public interest in the action causing the interference;
  • What was decided in past cases in the area;
  • What steps the person making the claim had taken to lessen their disturbance; and
  • The harm due to the interference by the claimant.

Both public and private nuisances can include the following:

  • Loud or irritating noises;
  • Unpleasant smells;
  • Particles in the air irritating sinuses or lungs;

Environmental nuisance

In addition to the common law, the ACT has legislation that requires every person to take steps to reduce environmental harm or environmental nuisance. This legislation is the Environment Protection Act 1997. This Act provides a definition for an environmental nuisance, which is an unreasonable interference with the enjoyment of the public or a person of a place or area caused, or likely to be caused by, one of the following:

  • Dust;
  • Fumes;
  • Light;
  • Noise;
  • Odour;
  • Smoke; or
  • Pollution.

This definition will cover most private and public nuisances.

Units, apartments and townhouses

If you live in an apartment, unit or townhouse, there may be additional rules that relate to what is considered a nuisance in your residence. If you live in one of these structures, request a copy of the rules from the owners’ corporation.

What can you do?

The first thing to do if you are suffering as a result of a nuisance is to address the issue with the person causing the problem. In many cases, this may serve to resolve the issue. The person may not be aware that they are causing a problem and they may be more than happy to alter their conduct to stop or at least lessen it impact.

Alternative dispute resolution

If addressing the issue directly does not work or is not possible, you can consider engaging in an alternative dispute resolution process, such as mediation. For this to be successful, the person causing the nuisance will have to be willing to participate in the process.

In an alternative dispute resolution process, an independent person will work with you and the other person to resolve the conflict. The Australian Capital Territory recommends using the Conflict Resolution Service (www.crs.org.au), which is a not-for-profit nationally accredited mediation service.

Lodge a complaint

There are several bodies to which you may be able to make a complaint should the above two approaches fail:

  1. If it is an environmental nuisance you can make a complaint to the Environmental Protection Authority (EPA);
  2. If the problem relates to amplified noise you can make a complaint to the Australian Federal Police;
  3. If the problem relates to building and construction noise, cars or traffic, or other residential noise you can complain through Access Canberra;
  4. If the problem relates to animals you can raise your concerns with the Domestic Animal Services; or
  5. If itrelates to drones you can complain to Air Services Australia;

Make a civil application

If the above three approaches fail in resolving your nuisance issue, you may wish to proceed to lodge an application with a court or tribunal. What you are claiming will determine what court or tribunal you should lodge your complaint with.

The ACT Civil and Administrative Tribunal (ACAT) will probably be the most appropriate forum. You can apply for ACAT to make specific orders to stop the nuisance and you can also apply for monetary damages up to $25,000. If you are claiming a higher amount in compensation, you may need to lodge your application with a higher court.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Kathryn Sampias

This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

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