Nuisance in New South Wales
Under the civil law in New South Wales, there are two types of nuisance, private and public nuisance. For a problem to amount to a nuisance it must be substantial and unreasonable. This article outlines nuisance law in NSW.
Private nuisance occurs when someone interferes with another person’s use of the land they own or in which they reside. The interference needs to be something which is substantial and unreasonable. The person causing the interference causes it without entering the land of the person who is affected by it. Some examples include:
- Loud noise;
- Waste or sewage;
- Light; or
- Oppressive smells.
The law about nuisance in New South Wales is based on the common law rather than legislation. In order to bring a case against someone, a claimant would need to demonstrate the following to prove that the interference was, in fact, a nuisance according to law:
- That the claimant has an interest in the affected land, e.g. that they own the land or are a tenant on it;
- That the person against whom the claim is brought has caused interference to claimant’s use and enjoyment of the land;
- That the interference was unreasonable and substantial.
Determining whether the interference was unreasonable and substantial will depend on the individual facts of each case. It is unlikely the inference would be considered unreasonable and substantial if:
- the interference is something which an ordinary person residing in the neighbourhood can tolerate and reasonably expect; and
- the defendant is causing interference while using his or her land for an ordinary purpose.
In determining whether an interference constitutes a nuisance, a court can consider:
- how often the interference occurs;
- the degree of the interference;
- the type of interference;
- how long the interference lasts for; and
- the time or times at which the interference takes place.
What the ordinary use of the land is in the area is also relevant to determining whether an interference is a nuisance. Loud industrial noise in an industrial area is less likely to be considered a nuisance than if the loud industrial noise was in a residential area. What the party causing the interference is using his or her land for is also relevant. If the interference is caused by an ordinary use of the land, it is less likely to be considered a nuisance than if it were being caused by a malicious or reckless use of the land.
Once a nuisance is established, for an action to be successful against a defendant, a claimant must prove that the defendant was liable for causing the nuisance. To be liable, the defendant must be at fault.
The following needs to be shown to prove the defendant was at fault:
- The defendant ought to have known or did, in fact, know about the nuisance;
- The damage caused was reasonably foreseeable; and
- The defendant did not take reasonable steps to prevent or end the nuisance.
Where to bring a claim for nuisance
A party can bring a claim in the Supreme Court of New South Wales.
The time limit
There is a six-year period from the date the nuisance commenced to bring legal action.
A person bringing an action can request the following relief:
- An injunction (court order) to stop the behaviour; and/or
- Damages (compensation) for the harm or loss caused.
Alternative Dispute Resolution
Before commencing a court action, it may be wise to try to resolve the dispute in other ways. If possible, it may be useful to speak directly with the party causing the problem. If this is unsuccessful, there are alternative dispute resolution methods for resolving disputes such as mediation.
In mediation, an independent person will work with you and the party causing the nuisance to resolve the dispute. They will do this by ensuring that each person has a chance to present their point of view, ensuring the conversation stays on topic and assisting parties in coming to an agreement if possible. This method will only be possible if the other party is willing to participate in the process. In New South Wales, there are Community Justice Centres that offer free mediation services to help people resolve disputes, so they do not have to proceed to court.
A public nuisance is something that substantially and unreasonably interferes with the common rights of the public at large. A civil action can be taken on behalf of the public by the Attorney-General or by a private citizen affected by the public nuisance.
Public nuisance is also a criminal offence.
Trees and overhanging branches
Trees often cause problems and disputes between neighbours. In New South Wales, there is a piece of legislation that is dedicated to resolving these disputes called Trees (Disputes Between Neighbours) Act 2006. If this Act applies to a situation, an action for nuisance can not be pursued in relation to it. Instead, the law contained in the legislation must be used to resolve the dispute.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.
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