Nuisance - what is it and what are my rights

Generally speaking, the occupiers of land (whether an owner or a tenant) are entitled to the quiet use and enjoyment of that land.  The unreasonable interference with that right is a nuisance, which can be categorised as either:

• Public nuisance; or
• Private nuisance.

Public Nuisance

Public nuisance is the unreasonable interference with the public’s peaceful passage through, or enjoyment of, a public place.  Public nuisance may include conduct that interferes with the peace or health and safety of members of the public.  We have previously written about public nuisance here.

Private Nuisance

Private nuisance, on the other hand, is the unlawful interference with an occupier’s use and enjoyment of land (or an associated land right).  Common examples of private nuisance include noise, smoke and water nuisances.  However, nuisance may also include:

• Noxious smells;
• Vibrations;
• Dust;
• Intrusion (such as overhanging branches or invasive tree roots);
• Access obstructions; or
• Interference with support to land (such as the removal of a retaining wall).

Who can help?

Local government and police have powers to investigate and prosecute limited types of nuisance (i.e. noise nuisance).  There are also statutory regimes to assist parties with disputes over nuisances, such as the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, which has been discussed in detail here.

In many instances, however, a nuisance will be considered a civil matter, and must be dealt with between the parties involved.  In such circumstances, an occupier may need to take legal action to protect their property and enforce their rights.

What can I do?

In order to successfully bring an action for nuisance, an occupier must establish the following elements:

1. They are the lawful occupier of the land;
2. Another person has interfered with their use and enjoyment of their land (or some other land right); and
3. The interference was both substantial and unreasonable.

Whether a nuisance is “substantial and unreasonable” will be determined on the facts.  However, the courts have previously taken into consideration the following:

• The nature of the neighbourhood, including whether the nuisance complained of occurs as a result of a land owner’s natural and ordinary use of their land;
• The duration and extent of the interference;
• Whether the interference was pre-existing;
• Whether the activity causing the interference is necessary, and whether an order prohibiting same would unreasonably restrict another occupier’s land rights;
• The cost to remedy or resolve the interference; and
• How a reasonable person would view the interference.

What relief is available to me?

If the court ultimately finds that a claim in nuisance has been made out, it may order an injunction (either to restrain the offending conduct, or requiring some positive act to remedy the interference) and/or damages.

If you are experiencing difficulties with a neighbour, or are unable to use or enjoy your land, we may be able to help.  Contact one of our friendly, local experts on the link below.