Civil & Personal Litigation – Nuisance

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At Odyssey Legal, we understand that nuisance disputes can be stressful, particularly as they often occur with your neighbours and therefore, it is something you can't simply get away from.

We invite you to schedule a free 15-minute consultation to discuss your concerns and allow our civil litigation lawyers guide you to the correct avenue.

Executive Summary

Since COVID-19, we have seen an increasing number of disputes arising between neighbours, often resulting in claims of nuisance or trespass, or alternatively, in peace and good behaviour complaints being made.

The tort of nuisance and trespass can be causes of action in the civil jurisdiction, entitling a person to make a claim for damages.

Private nuisance is the unlawful, substantial and unreasonable interference by a party (commonly, a neighbour, given their proximity to your property) with your use or enjoyment of your property, or of some right over or in connection with it.

Within this article, our civil litigation lawyers will breakdown the elements of private nuisance. Trespass and Peace and Good Behaviour Complaints will be particularised in separate articles.

What is Nuisance?

At law, nuisance is the unlawful interference with a person’s use or enjoyment of land, or some right over it, or in connection with it. In Bolton v Stone [1949] 1 All ER 237, Oliver J stated:

‘Whether such an act does constitute a nuisance must be determined not merely by an abstract consideration of the act itself, but by reference to all the circumstances of the particular case, including, for example, the time of the commission of the act complained of; the place of its commission; the manner of committing it, that is, whether it is done wantonly or in the reasonable exercise of rights; and the effect of its commission, that is, whether those effects are transitory or permanent, occasional or continuous; so that the question of nuisance or no nuisance is one of fact.’

Elements of Nuisance

In Bilic & Bilic v Nicholls & Ors [2013] QDC 110, Dearden DJC said:

‘To establish a cause of action in nuisance you must show that:

You have title to sue in respect of the particular nuisance;

The neighbour has unlawfully interfered with your property rights; and

That interference was both substantial and unreasonable.’

Therefore, if you are considering a claim in nuisance, you need to satisfy the following elements to be successful: 

1. Title to Sue—That you have authority to sue. This requires a form of interest in the property that is being interfered with. As such, if you are an owner or an occupier (tenant), then you can make a claim in nuisance.

2. Unlawful Interference—You can demonstrate, with sufficient evidence, that the neighbour has interfered with your property. An interference may include excessive noise, odour, smoke, vibrations, dust, conduct or intrusion that may cause a person to fear for their safety (overhanging branches or shooting of rifles), obstructions of rights of water or water supply, inference with support to land or a wall, or blocking out a neighbour’s light.

3. Substantial and Unreasonable Interference—This is often the most difficult element to satisfy, as it is an objective test of whether the interference is substantial and unreasonable. Each case is individually considered, considering common sense and relevant factors, including the general nature of the neighbourhood, the location at which the alleged nuisance has taken place, and the extent and duration of the nuisance.

   Although an interference by a neighbour can be irritating or an annoyance, not all interferences amount to a substantial or unreasonable inference or an actionable nuisance at law. For example, a neighbour painting your side of the dividing fence may not necessarily constitute an actionable cause of action in nuisance. However, if the nuisance is actuated by malice or with deliberate intent, then it may deem reasonable conduct to be an actionable cause of action in nuisance.

The Courts have held that the following (among others) are examples of actionable causes of action in nuisance:

1. Snooping or continual surveillance;

2. Threats to kill or threats with racial vilification;

3. Sexual orientation vilification;

4. Extensive unwarranted complaints to the Council or the Police;

5. Interference with support to land or a wall; and

6. Interference with safe access to a property.

Remedies

The remedies available for nuisance include:

1. Self-abatement—Taking steps to reduce or remove the causation of the nuisance (i.e. removal of overhanging branches).

2. Injunctions—An injunction is an order by the Court that requires a party to either do or refrain from doing a particular act or thing. For example, requiring your neighbour to cease a neighbour from continually making unwarranted complaints to the Council or the Police. In addition, you can also be entitled to damages if your neighbour is found to be liable.

3. Damages—If your neighbour is found to be liable for nuisance, then you are entitled to damages, either compensatory damages (to compensate you for the conduct), aggravated damages (compensation for injury that may not be tangible, such as humiliation, stress, distress, or indignity), or exemplary damages (a punishment to deter similar future conduct).

Conclusion

In conclusion, nuisance is the unlawful, substantial, and unreasonable interference by a party (commonly, a neighbour, given their proximity to your property) with your use or enjoyment of your property or of some right over or in connection with it. However, not all interference or unreasonable conduct will amount to nuisance, and legal advice should be considered prior to taking action against your neighbour for their conduct.

We invite you to schedule a free 15-minute consultation to discuss your concerns and allow our civil litigation lawyers guide you to the correct avenue.