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Nuisance in Western Australia

The common law in Western Australia contains the law about nuisance. This means that the law is found in cases rather than in legislation. However, some pieces of legislation may be relevant to some claims. For example, in the recent case of Ammon v Colonial Leisure Group Pty Ltd [2018] WASC 280, the Supreme Court of Western Australia considered the Environmental Protection (Noise) Regulations 1997 and Strata Titles Act 1985, in addition to the common law of nuisance. It is also worth noting that some local government areas in Western Australia have their own local laws that specifically relate to the law of nuisance.

What is the common law of nuisance?

There are generally two types of nuisance: private and public nuisance. The common law of private nuisance is based on the premise that everyone has a right to enjoy their residence or property. Anything that interferes with this right may be a private nuisance. For something to be considered a private nuisance, it must be something substantial and also something unreasonable.

For a claimant to successfully bring a claim, they must establish the following:

  • That a reasonable person would find the nuisance real and substantial; and
  • That it does, in fact, interfere with their enjoyment of their residence or property.

Some of the factors relevant to determining whether a reasonable person would find something real and substantial include:

  • The type and degree of interference;
  • The public or social interest in the activity causing the interference;
  • The nature of past cases in the area where nuisance was established;
  • Whether the claimant had taken reasonable measures to minimise their disturbance by the interference; and
  • The damage or injury sustained by the claimant due to the interference

Noise is commonly reported as a private nuisance. Other examples of interferences that could be classified thus include:

  • Air contamination or pollution;
  • Branches overhanging from another property;
  • Lights being shone onto a property;
  • Drones;
  • Water run-off from another property; and
  • Animals being kept inappropriately on a nearby property.

What are my options if I am suffering from a private nuisance?

It may be a good idea to try to resolve the issue directly with the person or company causing the interference. This costs you nothing and may lead to a suitable resolution to your problem.

If this approach is not successful or you are not in a position where this is possible, you may like to make a complaint to your local council or local police who may have processes for dealing with such complaints.

Alternatively, you can seek assistance from a professional, such as a lawyer to try to engage in alternative dispute resolution with the person or company causing the nuisance.

Finally, you could commence court action seeking either:

  • An injunction to stop the nuisance; or
  • Damages or compensation for the harm you have suffered due to the nuisance.

Court action can be a lengthy and costly process and may not always result in the outcome for which you may have hoped. This was what Mr Derek Ammon found out when he took the Raffles Hotel to Court for private nuisance.

Ammon v Colonial Leisure Group Pty Ltd [2018] WASC 280

In this case, Mr Ammon sought compensation of $2.7 million for the nuisance caused by the noise at a beer garden at the nearby Raffles Hotel. He sought this compensation on the basis that the noise from this beer garden was preventing him from enjoying his property.

Mr Ammon originally brought the case in the Supreme Court of Western Australia and the court refused his claim. The court considered that the degree of nuisance and all relevant factors must be considered. In this case, the hotel was located in a busy precinct and not far out in the suburbs. Even if the interference had been substantial and unreasonable, the owner of the hotel could not have been expected to restrict his business in a way that was inconsistent with the usual operation of such a hotel. Mr Ammon appealed this decision but the primary decision was upheld by the Court of Appeal.

Public nuisance

A public health nuisance is a nuisance which affects the public at large. An interference that could constitute a public health nuisance includes:

  • Noise
  • Smell
  • Air particle pollution
  • Rubbish
  • Rodents
  • Invasions of privacy
  • Dust

Sometimes the Attorney-General may commence an action for public health nuisance against a person or entity on behalf of the community. A person who has suffered an injury or harm due to a public health nuisance may also bring an action against the person or entity who has caused the public health nuisance.

Time limits

Under the Limitation Act 2005 (Western Australia), an action relating to nuisance must be brought within six years of the date of the harm being sustained or within three years if it relates to a personal injury.

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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