Private Nuisance (Qld)

People occupying land are entitled to the quiet enjoyment of that land, whether they are an owner or tenant. A legal nuisance is a substantial and unreasonable interference with that quiet enjoyment, and is categorised into either public or private nuisance. This article deals with private nuisance.

What is a private nuisance?

A private nuisance includes:

• noise;
• smells;
• flooding;
• encroachment of trees;
• smoke;
• dust;
• activity or intrusion that causes fear;
• obstruction of water supply or light;
• obstruction of right of way;
• interference with a support to land or a wall;
• deliberate surveillance.

Police and local councils can investigate and penalise some kinds of private nuisance. The Department of Environment and Science can handle complaints about contaminants released into the environment. A complaint must be made before an investigation will begin.

Court action

In some instances, a person can initiate court proceedings over the nuisance. This is called a “common law nuisance action”. The interference needs to be “substantial” and “unreasonable” for legal action to be taken, and usually the only person who can sue is the person who legally occupies the land. A claim does not require that there be physical damage to land or that there was an intention to interfere.

When deciding whether a person’s complaint constitutes private nuisance, the court will look at factors such as:

• the nature of the neighbourhood;
• where the interference happened;
• when the interference happened;
• how long the interference lasted, and whether it is ongoing;
• the impact of the interference on the complainant;
• whether the interference existed before the complainant moved to the property;
• the usefulness or necessity of the activity causing the interference;
• the cost and effect of having the responsible person modify or stop their activities;
• how a reasonable person would perceive the interference.

A person can also be held responsible for a nuisance if they know or ought to know about a nuisance on their property and they fail to act.

If the court finds a person has committed a nuisance, it can:

• grant an injunction ordering the person responsible to stop or remove the nuisance;
• order the person responsible to stop doing something likely to create a nuisance or harm someone or their property;
• order the responsible person to pay compensation to the affected party.

Examples of specific private nuisances

Private nuisance offences are many and varied. Some examples involve trees, health risks, pets and residential noise.

Trees

Encroaching trees can constitute a private nuisance if they interfere with a property occupier’s enjoyment and use of land. Damages may be available if a person can prove a nuisance tree caused damage to a property. The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 provides that tree maintenance is the responsibility of the tree keeper but that a neighbour has a right to lop branches and roots to the boundary if a tree is affecting their property.

Health risks

Examples include houses in such poor condition they are about to fall down, or infested with vermin; enclosures for keeping animals; or excessive rubbish on a property.

Pets

Barking dogs can be considered a private nuisance when the barking is consistent and continues to the point it disrupts a person’s peace, comfort or convenience. Upon a complaint to a council, the dog owner can be fined and taken to court.

Residential noise

Police can deal with complaints about excessive noise from:

• • musical instruments;
  • stereos and amplifiers;
  • private gatherings, such as parties;
  • music and other noise emitted from vehicles on private property, on the road or in public places;
  • residential alarms.

Local councils can deal with some residential noise problems such as those involving noise from lawn mowers, swimming pool pumps, air conditioners, power tools and generators, which can be used only during specified hours and at specified volumes.

Public nuisance

Section 6 of the Summary Offences Act 2005 states a person commits a public nuisance if they behave in a way that is disorderly, offensive, threatening or violent, and that behaviour interferes, or is likely to interfere, with another person’s peaceful enjoyment of a public place. A person behaves in an offensive way if they use offensive, obscene, indecent or abusive language. A person behaves in a threatening way if they use threatening language.

A complaint is not necessary for police to take action against a person for a public nuisance offence. Police can issue an infringement notice for a public nuisance offence.

The maximum penalty for public nuisance is 10 penalty units ($13,345) or imprisonment for 6 months. If the person commits the offence inside or near licensed premises, the penalty increases to 25 penalty units ($3336.25) or imprisonment for 6 months. Such charges are usually dealt with in the Magistrates Court and penalties include fines, bonds community service and probation.

For advice or representation in any legal matter, please contact Armstrong Legal.