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 The law of tort distinguishes between two types of nuisance — private and public. In essence private nuisance is concerned with conduct that interferes with the right to enjoy land. A public nuisance is concerned with conduct that interferes with a right of a person as a member of the public.

 Typically, an action for private nuisance involves a dispute between neighbours. In an urban environment where neighbours live in close proximity to each other, everyone must, to some extent, tolerate some annoyance from the activities of neighbours. The law tries to strike a balance between the conflicting rights of a person to the reasonable enjoyment of a property and the right of neighbours to use their property how they wish. However, sometimes that balance is not reached and the plaintiff claims that rights have been infringed.

 To succeed in an action for private nuisance the plaintiff must prove, on the balance of probabilities: o the existence of a nuisance that interferes with enjoyment of property o that the nuisance was unreasonable in the circumstances o damage was caused by the nuisance.

 The defendant may be able to defend an action by claiming that:  the interference suffered is trivial, not substantial  the interference is not unreasonable in the circumstances  the plaintiff did not suffer any damage.  A defendant cannot argue that the plaintiff chose to come to the nuisance by, for instance, moving next door to a cricket club then building near the clubrooms, as the law protects a person in the reasonable use of land.  An important defence may be to argue that legislation exists authorising the activity that is causing the nuisance. For example, parliament may have legislated to enable an airport to be built in a certain location, or for major building works or road works to be undertaken.

 The main aim of the tort of public nuisance is to protect the general public from unwarranted disturbances.  An action for public nuisance is only available if the plaintiff can show that he or she is more affected than other members of the public. A common example of a public nuisance is the blocking of a public road. In one Victorian case, the defendant erected barriers across a public road then dug it up to use it as part of his farm. Because the plaintiff was a neighbour of the defendant, he could demonstrate that he suffered more inconvenience than other members of the public.  Public nuisance actions  Nowadays, civil cases under the tort of public nuisance are relatively uncommon. Activities causing a public nuisance are more likely to be proceeded against as a criminal prosecution. This is because the nuisance act usually involves a breach of legislation and, thus, is commonly prosecuted by the Crown on behalf of the community. Examples include actions that endanger the lives, safety, health or comfort of members of the public in enjoying the use of highways, parks or waterways.

 State whether or not, in your view, the following nuisance acts represent a substantial and unreasonable interference with the plaintiff's right to quiet enjoyment of their land. o The defendants who live next door to the plaintiff have a dog that barks constantly and loudly all night. o The plaintiff moved into a house two doors away from a church. The church bells ring every Sunday morning at 10 am. The sound wakes the plaintiff. o The defendant's air-conditioner is an older style unit that is very noisy. It is left on all day and disturbs the plaintiff who works at home. o Leaves from the defendant's large gum tree constantly blow into the plaintiff's swimming pool. o The property next door to the plaintiff is rented. The tenants have parties every weekend attended by many people. The music and the sound of cars arriving and departing disturb the plaintiff's sleep

 Indicate whether or not the following statements are true or false. o A private nuisance is one that affects the general public. o A plaintiff who complains of a trivial nuisance generally will not succeed in an action for private nuisance. o Vibrations from machinery can constitute a nuisance act in the law of tort. o Civil cases relating to public nuisance are very common. o Cases involving a public nuisance are more likely to proceed by way of a criminal prosecution.  Explain the difference between a public and a private nuisance.  What are the elements of private nuisance that must be proved for a claim to be successful?  Explain the defences available to a defendant in a nuisance claim.