The tort of Nuisance

Have you ever had a neighbour who had a party that created a lot of noise and mess, and continued into the early hours of the morning? Situations such as this interfere with a person's ability to enjoy his or her own home and surroundings. This activity can create a nuisance and lead to a dispute between neighbours that can end up in court.Have you ever had a neighbour who had a party that created a lot of noise and mess, and continued into the early hours of the morning? Situations such as this interfere with a person's ability to enjoy his or her own home and surroundings. This activity can create a nuisance and lead to a dispute between neighbours that can end up in court.

DO NOW Provide a list of behaviours or activities that might be frowned upon by neighbours.Provide a list of behaviours or activities that might be frowned upon by neighbours.

Two types of nuisance 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.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.

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

LUNA PARK NOISE RESULTS IN PRIVATE NUISANCE CASE

In the case of Seidler v. Luna Park Reserve Trust (SC) (NSW) 1995 (unreported), the court was asked to consider whether or not the noise of a roller-coaster on weekday nights was an unreasonable interference with the right of the plaintiff to enjoy his home. Even though the park had been operating for many years, the court held that it was a nuisance and ordered that the roller-coaster could not operate outside the hours of 5.30 pm to 10 pm on Fridays and 10 am to 11 pm on Saturdays.In the case of Seidler v. Luna Park Reserve Trust (SC) (NSW) 1995 (unreported), the court was asked to consider whether or not the noise of a roller-coaster on weekday nights was an unreasonable interference with the right of the plaintiff to enjoy his home. Even though the park had been operating for many years, the court held that it was a nuisance and ordered that the roller-coaster could not operate outside the hours of 5.30 pm to 10 pm on Fridays and 10 am to 11 pm on Saturdays.

Defences to private nuisance The defendant may be able to defend an action by claiming that:The defendant may be able to defend an action by claiming that: the interference suffered is trivial, not substantialthe interference suffered is trivial, not substantial the interference is not unreasonable in the circumstancesthe interference is not unreasonable in the circumstances the plaintiff did not suffer any damage.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.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. In such cases, the court will examine the legislation to assess if the nuisance has been created as a result of complying with the law. Parliament also may pass legislation that prevents a person from initiating court action for private nuisance if the activity has been authorised by parliament.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. In such cases, the court will examine the legislation to assess if the nuisance has been created as a result of complying with the law. Parliament also may pass legislation that prevents a person from initiating court action for private nuisance if the activity has been authorised by parliament.

Public nuisance 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.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.

Definitions Private nuisance is an interference with the right of an occupier of land to enjoy that landPrivate nuisance is an interference with the right of an occupier of land to enjoy that land Public nuisance is an interference with the rights of the general public; for example, the right to enjoy the use of roads and parksPublic nuisance is an interference with the rights of the general public; for example, the right to enjoy the use of roads and parks

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.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.

Case study: MINING COMPANY TAKEN TO COURT FOR PUBLIC NUISANCE In the case Ball v. Consolidated Rutile Ltd (1991) Qd R 524, commercial fishing operators took a mining company to court claiming the company had caused a public nuisance. The fishing operators claimed that earth and slurry had entered the watercourse because of the mining company's actions and it was interfering with fish stocks. The action was unsuccessful as the watercourse was open to all members of the public to fish and the court concluded that the commercial fishing operators had suffered no specific loss.In the case Ball v. Consolidated Rutile Ltd (1991) Qd R 524, commercial fishing operators took a mining company to court claiming the company had caused a public nuisance. The fishing operators claimed that earth and slurry had entered the watercourse because of the mining company's actions and it was interfering with fish stocks. The action was unsuccessful as the watercourse was open to all members of the public to fish and the court concluded that the commercial fishing operators had suffered no specific loss.

In the case Ball v. Consolidated Rutile Ltd, the plaintiffs were unable to prove they were more affected than any other members of the public using the watercourse.In the case Ball v. Consolidated Rutile Ltd, the plaintiffs were unable to prove they were more affected than any other members of the public using the watercourse.

TEST your understanding 1.) Indicate whether or not the following statements are true or false.1.) Indicate whether or not the following statements are true or false. A private nuisance is one that affects the general public.A private nuisance is one that affects the general public. A plaintiff who complains of a trivial nuisance generally will not succeed in an action for private nuisance.A plaintiff who complains of a trivial nuisance generally will not succeed in an action for private nuisance. Vibrations from machinery can constitute a nuisance act in the law of tort.Vibrations from machinery can constitute a nuisance act in the law of tort. Civil cases relating to public nuisance are very common.Civil cases relating to public nuisance are very common. Cases involving a public nuisance are more likely to proceed by way of a criminal prosecution.Cases involving a public nuisance are more likely to proceed by way of a criminal prosecution. 2.) Explain the difference between a public and a private nuisance.2.) Explain the difference between a public and a private nuisance. 3.) What are the elements of private nuisance that must be proved for a claim to be successful?3.) What are the elements of private nuisance that must be proved for a claim to be successful?

APPLY your understanding 5.) 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.5.) 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. The defendants who live next door to the plaintiff have a dog that barks constantly and loudly all night.The defendants who live next door to the plaintiff have a dog that barks constantly and loudly all night. 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.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. 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.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. Leaves from the defendant's large gum tree constantly blow into the plaintiff's swimming pool.Leaves from the defendant's large gum tree constantly blow into the plaintiff's swimming pool. 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.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.

6.) Do you think legislation should provide a defence to an activity that would otherwise be a nuisance? Give reasons for your answer.6.) Do you think legislation should provide a defence to an activity that would otherwise be a nuisance? Give reasons for your answer. 7.) In your view what advantages and disadvantages are there in making public nuisance the subject of criminal proceedings rather than civil?7.) In your view what advantages and disadvantages are there in making public nuisance the subject of criminal proceedings rather than civil?