Nuisance

Contributed by Harriet Ketley and current to 1 September 2005

Relations between neighbours are frequently governed by the common law of nuisance.

The law of nuisance is not simple. It must try to balance certain necessary and useful actions with others’ rights to live without inconvenience, discomfort and annoyance. It also distinguishes between ‘private’ and ‘public’ nuisances. In many, but not all, cases negligence must be proven. Between neighbours, some basic principles for deciding if a private nuisance has occurred are that:

• there is an interference with a person’s use or enjoyment of land;
• the interference can be direct or indirect;
• the interference must be unreasonable, having regard to the neighbourhood, the time and the circumstances;
• material discomfort must be suffered;
• the interference is continuous; and
• the occupier of the property, whether an owner or tenant, is the person who has the right to take action.

Noise, smells, smoke, vibrations, dust, water, aerial spraying and trees commonly cause a nuisance.

While it may be possible to obtain an injunction (a court order) to stop the nuisance or damages (compensation for the damages caused), any legal action may be very expensive, and legal advice should be obtained before considering proceedings.

DEFENCES

Where one person takes action against another in relation to a nuisance, the following defences may arise:
• the person complaining consented to the act or acts causing the nuisance;
• prescriptive right: in some cases an act may have continued over many years in such a way that a person acquires a right to continue it; or
• statutory authority: an activity may be authorised by the law, such as the noise and vibration caused by a railway. In such cases, reasonable care and skill must be taken.

The law of nuisance has been significantly affected by legislative provisions, such as those that prohibit ‘statutory nuisance’ (see below) and those which prescribe maximum limits on certain forms of nuisance, such as noise (see below). In most cases, such laws offer a more practical means of resolving problems between neighbours than a common law court action.