This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws, a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Nuisance


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 a person’s quiet enjoyment, and can include noise, light, dust, fumes, odours, smoke or flooding.

Nuisance is categorised as either public or private nuisance.

Public nuisance

A public nuisance impinges on the rights of the public. It can be considered both a civil wrong and a crime. It is a common law offence, which carries a maximum of five years imprisonment. Examples of public nuisance include the obstruction of a footpath, or someone behaving in a threatening or offensive way in a public place, such as a park.

In a public nuisance matter, the prosecution needs to prove:

  • the person committed an act not permitted by law or failed to discharge a legal duty;
  • the action endangered the life, health, property, morals or comfort of the public; or
  • the action prevented the public from exercising their legal rights.

There may be defences available, including:

  • the accused did not commit the acts;
  • honest and reasonable mistake;
  • mental impairment.

Public nuisance cases are usually heard in the Magistrates Court or County Court. If a person wants to seek compensation in a public nuisance matter, they need to show that the nuisance caused them special damage, in that the damage was greater than that wrought on the general public. This is difficult to prove and so public nuisance actions brought by the public are rare.

Private nuisance

A private nuisance interferes with another person’s enjoyment and use of their land. It is a civil matter and is divided into two categories: material damage and intangible interference.

Material damage occurs when damage is done to a person’s property which affects the person’s use and enjoyment of the property. This includes flooding, vibrations or encroachment of some kind on to the property.

Intangible interference refers to direct interference with a person’s enjoyment of the land, such as smoke, excessive light or excessive noise.

Dealing with a private nuisance

As the first step, it is advisable to speak to the person responsible to see if the situation can be resolved. In some circumstances, a person can be entitled to enter land to stop the interference. This is called abatement or “self help”. If talking to the person responsible does not resolve the issue, mediation is an option. If mediation does not resolve the issue, court proceedings can be initiated.

To make a claim, a person must show they live on the property, and that the interference was substantial and unreasonable.

When deciding whether a person’s complaint constitutes a 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 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 private 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.

Specific private nuisances

There are many different types of private nuisances. Examples include:

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 tree caused damage to a property.

Health risks

Nuisances dangerous to health are covered in the Public Health and Wellbeing Act 2008. Section 61 states a person “must not cause a nuisance or knowingly allow or suffer a nuisance to exist on, or emanate from, any land owned or occupied by that person” without a lawful excuse. Examples include houses in such poor condition they are about to fall down or are 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.

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

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