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Nuisance in Victoria

As humans, we may find a lot of things annoying or a nuisance. Not all of these things will be considered to be a nuisance by the law. However, the law does recognise some things as being a nuisance and provides for consequences where a party’s conduct meets the legal definition of nuisance. This article outlines the law on nuisance in Victoria.

There are two categories of nuisance under the law in Victoria: public nuisance and private nuisance. If a person causes a public nuisance, they are doing something or allowing something to happen that is a nuisance to the general public. If a person causes a private nuisance, they are doing something or allowing something to happen on a particular individual’s or group’s private property. An action or inaction causing a nuisance may include burning off, smell or poorly positioned rubbish. Public nuisance can be either a criminal offence or a civil wrong. Private nuisance is a civil wrong.

Public nuisance criminal offence

Public nuisance in Victoria is a common-law offence. This means that the law relating to it comes from case law rather than legislation. The prosecution must satisfy the court that the relevant nuisance endangered life, health, property, morals, disrupted public comfort or prevented the public from exercising legal rights. The prosecution must also show that in causing the act of nuisance, the accused failed to discharge a legal duty or was not authorised by law.

Defences for a charge of nuisance include duress, factual dispute, an honest and reasonable mistake of fact, identification dispute, lack of intent, mental impairment or necessity.

The maximum penalty for a charge of public nuisance is a period of imprisonment for five years.

Nuisance can also be an offence under section 61 of the Public Health and Wellbeing Act 2008. According to this section, a person must not cause a nuisance or knowingly allow a nuisance on land they occupy. An individual can be charged up to 120 penalty units for nuisance under this section, and a body corporate can be charged up to 600 penalty units.

If you are affected by a public nuisance, you can report your concerns to the local police who will make inquiries into whether charges should be laid. Alternatively, you could report your concerns to your local council who will usually have processes for investigating and resolving complaints relating to public nuisance. Depending on the situation, you may also wish to address the issue directly with the person whom you believe has caused or is causing the nuisance.

Public nuisance in Victoria civil wrong

If you have been adversely affected in some way due to a public nuisance and can show evidence of this, you may have a civil claim that you can bring to court against the accused who caused the public nuisance. You may be able to claim compensation for the harm you suffered as a result of the nuisance.

Private nuisance in Victoria civil wrong

Generally, if someone has caused a private nuisance, they have done or omitted to do something that has affected the land or premises which an affected person occupies. The affected person, to prove that a nuisance has occurred, must show that they occupy the relevant land or property and that the effect of or damage caused by the nuisance was significant. The relevant damage can be either material or intangible. Where there is material damage, there is physical damage to the property or objects on the property. Where there is intangible damage, there may be smoke, a smell or overgrown trees that affect the property.

A court may consider a number of things when deciding whether something constitutes a private nuisance. These include:

  • The location of the behaviour;
  • The type of neighbourhood;
  • What time of day the behaviour occurs;
  • Whether the behaviour has only started or whether it existed before the affected person lived in the property; and
  • How a reasonable person would react to the behaviour.

Before taking a civil action against someone who is causing you a private nuisance, you may wish to talk directly with the person causing the nuisance to try to come to a mutually beneficial arrangement to resolve the problem. If you do not feel comfortable doing this, you may be able to seek assistance from the Dispute Settlement Centre of Victoria to involve a third party to settle the dispute. If this does not work, then civil action may be the best option. A court can, in addition to awarding damages for the harm caused by an act of nuisance, order an injunction stopping the person responsible for the nuisance from causing the act of nuisance. A court can also make an order that the person responsible for the nuisance does not commit any further action that is likely to result in a nuisance.

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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