In daily life, it is not unusual to encounter situations where noise, rubbish or smoke from a neighbour seriously affects us. From a legal perspective, what remedies are available? We can draw on Australian law relating to private nuisance to protect our right to enjoy our land or home. If you live in a Strata Scheme, noise issues can also be addressed through the strata by-laws.

What is private nuisance

Definition

Private nuisance is an unlawful interference with a person’s use and enjoyment of land, or with rights incidental to that land.

Private nuisance generally takes one of two forms:

1. Causing substantial physical damage to another person’s land or building; or

2. Affecting another person’s enjoyment of land, or their comfort, health or convenience.

To bring an action, the interference must be substantial and unreasonable.

Examples

Examples of private nuisance include:

Noise

Rubbish or wastewater

Dust

Light

Offensive odours

Smoke, and similar

In New South Wales, an action in private nuisance requires proof of the following three matters:

1. The plaintiff has an interest in the relevant land — for example, the plaintiff owns the title to the land or is a tenant of that land;

2. The defendant has interfered with the plaintiff’s use or enjoyment of the relevant land; and

3. The interference is substantial and unreasonable.

Substantial and unreasonable

As noted above, one of the elements of private nuisance is that the interference must be substantial and unreasonable. So how do you prove that an interference is substantial and unreasonable?

The court will determine this based on the facts of each case. Generally speaking, the following circumstances will not be considered to meet that threshold:

1. An ordinary person living in the surrounding area could reasonably anticipate such interference and could tolerate it; and

2. The defendant caused the interference while making reasonable use of their own land.

In assessing whether an interference is unreasonable, the court will typically consider:

1. The nature and extent of the interference;

2. Whether the defendant’s conduct benefits society or the public;

3. Whether the plaintiff is unusually sensitive, or whether the plaintiff’s use of the land is particularly susceptible to interference;

4. The nature of the plaintiff’s use of the land and the surrounding environment; and

5. Whether the defendant has taken all reasonable precautions to minimise interference with others.

Limitation period

In NSW, proceedings for private nuisance must be commenced within six years from the date the interference began.

Remedies

In a private nuisance case, the court may order the following remedies:

1. Damages;

2. Injunction.

An injunction is a court order restraining a party from doing something. In deciding whether to grant an injunction, the court may consider a range of factors, including whether damages would be an adequate remedy.

3. Abatement of nuisance.

The court may authorise the plaintiff to enter the defendant’s land or take other self-help measures to reduce an interference that substantially disrupts the plaintiff’s enjoyment of their own land.

Defences

In a private nuisance case, the defences available to a defendant include:

1. Statutory authority — that is, there is legislation permitting the defendant’s interfering conduct;

2. Reasonable use — proving that the defendant’s conduct was reasonable, with the onus resting on the defendant; and

3. Consent — proving that the conduct causing the interference was carried out with the plaintiff’s consent.

Noise issues in strata schemes (NSW)

If you live in a strata scheme and a neighbour throws a loud party in the middle of the night, how do you protect your sleep? Where you have tried to speak with the neighbour without success, you can call the police, and officers can issue a warning or fine to the person making the noise. You can also lodge a complaint with council. Or you can rely on the strata by-laws to protect your rights.

Every strata scheme has its own by-laws, which generally include provisions about noise. You can therefore complain to the strata manager or owners corporation and ask them to intervene. If their attempts to speak with your neighbour come to nothing, they can issue a Notice to Comply with a By-Law, which includes:

• Telling your neighbour which by-law they have breached;

• Explaining why that by-law has been breached; and

• Warning the neighbour that if they continue to make noise, the owners corporation will seek a court order from NCAT.

If the neighbour breaches the same by-law again within 12 months, the owners corporation can apply to NCAT for an order — requiring the neighbour to pay a penalty to the owners corporation.

You or the owners corporation may also try mediation as a means of resolving the dispute. Mediation is a process in which, with the assistance of a mediator, the parties work together to negotiate a solution. Compared with litigation, resolving disputes through mediation has certain advantages, such as saving time and money and allowing for more flexible outcomes.

Final thoughts

Neighbour disputes are hard to avoid entirely. If a neighbour’s conduct is substantially affecting your life, you can draw on the law at the appropriate time to defend your rights.

The above is an overview of Australian law on private nuisance and strata noise issues. If you have any related questions, we recommend seeking the help and guidance of a qualified legal professional.

May we all enjoy mutually respectful, harmonious and friendly relationships with our neighbours!