Private nuisance is a cause of action aimed at protecting an individual’s right to enjoyment of land from the interference of his or her neighbour. Private nuisance enables remedies such as injunctions and damages where an individual’s right to enjoyment of land has been interfered with.
There are a number of interferences which can fall under the meaning of private nuisance. The most common are:
In order for the interference to be considered a private nuisance, it must be substantial, unreasonable in the circumstances, and cause an interference with a private right to the use and enjoyment of land. In order to establish an action for private nuisance, it must be demonstrated that; the party making the claim has a title to sue for the particular nuisance, the other party (such as the neighbour) has interfered with the first party’s property right and the interference has been substantial and unreasonable. Importantly, an action for private nuisance does not require that there be physical damage to the land concerned nor must the claiming party show there was an intention to interfere.
Title to Sue
Only persons who have an interest in the land, right to occupy, or exclusive possession will be entitled to bring an action for private nuisance. This means if you own the land, are tenants residing on the property or are otherwise entitled to exclusive possession of the property and are using the property you will be entitled to bring an action.
Importantly, if you own the property but are not residing on the property at the time, you will not be entitled to bring an action for private nuisance, unless there is some permanent change to the property. This will usually apply to landlords where there has been an interference with the land which will remain permanent in nature until such time as it is removed.
Not every interference with your use and enjoyment of land will constitute an action in nuisance. The interference must be ‘substantial’ and ‘unreasonable’. In identifying whether the interference is both of these things, a court or tribunal will usually need to balance the plaintiff’s right to use of their land freely and that of the neighbour.
Interference will not be considered substantial where it is not more than that which an average person in the neighbourhood would reasonably expect to occur in the ordinary use of one’s land. For example, a neighbour mowing their lawn on a Sunday morning is unlikely to be considered a substantial interference.
What is considered ‘reasonable’ will be determined using common sense and taking into account the various factors such as the location of the land, its character, the duration and timing of an inference and what effect the interference has. Therefore in one neighbourhood, the loss of one night’s sleep will be reasonable while in another it may not. Ultimately, an interference will usually be considered ‘unreasonable’ where it interferes with one’s ordinary physical comfort in light of the location of the land and the reasonable level of comfort a person may expect in that area.
There are three main remedies for private nuisance:
Abatement is commonly referred to as ‘self-help’ and is available in the alternative of legal proceedings where immediate action is required. The purpose of abatement is to stop the repetition of damage or interference by another to the land. Abatement is not seen favourably by tribunals or courts and should be considered cautiously. Where an individual relies on abatement they will not be entitled to damages or any other remedy in relation to the nuisance unless awarded damages for loss suffered before the abatement occurred.
Where an action for private nuisance is brought and is successful, the court may grant an injunction restraining the occurrence of the nuisance or requiring the abatement of a nuisance to occur. Usually, where a private nuisance action is brought, an injunction is the most likely remedy a tribunal or court will award.
Damages may be awarded where there has been a loss of amenity or enjoyment of the land concerned or damage has occurred to a structure on the land due to the nuisance. There is no requirement to prove actual monetary damage but if proven, it may be recoverable.
It’s essential you have experienced solicitors when dealing with a claim for private nuisance. If the use or enjoyment of your land has been interfered with, or a claim for private nuisance has been brought against you, our commercial law team will make sure your rights are protected.
Aitken Whyte Lawyers Brisbane can assist you with all property and land disputes. Call today to discuss your needs.
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000