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5 Nov 2019

HHG’s Dispute Resolution Lawyers Murray Thornhill and Alex Turner answer frequently asked questions regarding a nuisance.

20191030 Nuisance In Article

What is a nuisance?

Everyone is entitled to enjoy their property. The law protects the rights of an occupant, and it does not matter whether the occupant owns the property or is the tenant of that property.

A private nuisance is when someone (ie a neighbour) prevents you from using or enjoying your land. The interference must be both substantial and unreasonable to constitute a nuisance.

A claimant in nuisance must establish that a reasonable individual would find the nuisance substantial and real, and that the nuisance actually interferes with their enjoyment of their property.  The test to be applied is not entirely subjective, but the effect of the interference upon particular individuals might vary. The reasonableness requirement thus reflects the need for give and take between neighbours living within a community.

Factors relevant to unreasonableness include:

  • the nature and extent of the harm or interference
  • the social or public interest value in the defendant’s activity
  • hypersensitivity of the user or of the use of the plaintiff’s land
  • the nature of established uses in and character of the locality
  • whether all reasonable precautions were taken to minimise any interference
  • the type of damage suffered

What are some examples of a nuisance?

  • deliberate surveillance
  • air pollution
  • noise pollution
  • overhanging branches
  • keeping animals or bees inappropriately
  • shining floodlights directly into your premises
  • using a drone to create annoyance
  • a neighbour allowing water to run-off from their property onto yours

Some local governments have their own local laws that specifically deal with nuisances within their boundaries.

Example 1 – Owner of $2.7M apartment seeks to close beer garden at night

In a recent case, Derek Ammon, a resident at a multimillion-dollar apartment complex attached to the Raffles Hotel in affluent suburb Applecross sought to have the hotel’s beer garden shut down at night on the basis that it was too noisy and was stopping him from being able to enjoy his neighbouring property.

The Resident originally brought a claim for private nuisance against the owner of the hotel in the Supreme Court, who purchased the hotel in 2009. The Resident also purchased and began occupying his apartment in 2009. The hotel had been trading at the same location since 1896, and is heritage listed.

The Resident argued that, following a redevelopment of the hotel in 2013-2014, he began experiencing noise problems and these amounted to a private nuisance. He sought an injunction to restrain the hotel from playing music in certain areas at particular hours. At first instance, the Master of the Supreme Court found that the noise emanating from the hotel had not been shown to have interfered with the Resident’s enjoyment of his property in a way that was substantial and unreasonable. The Master also said that even in the interference had been substantial and unreasonable, he would not have issued the injunction because the hotel owner could not be expected to restrict the operation of the hotel in a way inconsistent with the orderly and proper use of that venue. The Master said nuisance is a question of degree, and that all the relevant factors must be taken into account, including in this case that the apartments are in a busy precinct, not a quiet suburban back water. The Court of Appeal upheld the primary decision and dismissed the Resident’s appeal.

What can I do about a nuisance?

Disputes between neighbours can seriously affect day to day life.

A person can commence action against another for a nuisance, seeking:

  • an injunction (court order) to restrain a continuing act of nuisance
  • damages (compensation) for harm suffered

A remedy of abatement (self-help) is an alternative option to court where the nuisance requires an immediate remedy. However, failing to abate a nuisance will not prevent a party from seeking another remedy.

These kinds of disputes are good candidates for alternative dispute resolution. Taking matters such as these to court can often be disproportionately time consuming and costly. Instead, it may be possible to resolve matters directly between the parties. However, where this is not appropriate or where early attempts at resolution have failed, you can seek the assistance of a lawyer to identify the legal issues and a strategy to resolve the dispute.

What is the difference between nuisance and disorderly conduct?

Nuisance is a civil action – it is a private matter between two or more persons (which can include companies and other legal entities) relating to enjoyment of private property.

Disorderly conduct is an offence under the Criminal Code (WA). It is prosecuted by the State (ie by Police or the Department of Public Prosecutions) and is dealt with summarily in the Magistrates Court.

What is the difference between nuisance and trespass?

While both can be civil matters, nuisance relates to interference in a person’s enjoyment of their own property, whereas trespass to land occurs when a third party interferes in a person’s property rights by physically entering land without permission, or by entering land for a purpose for which they do not have permission.

There are also certain criminal offences relating to trespass in Western Australia.

What is a public health nuisance?

Public health nuisance can occur as a result of, for example, new developments or other construction activities. Common examples of these kinds of nuisance include:

  • Noise
  • Vibration
  • Odour
  • Dust
  • Visual pollution
  • Light pollution
  • Waste
  • Pests
  • Lack of privacy

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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