How to protect your property rights!
By Emily Martins, Senior Lawyer, Lovegrove Smith & Cotton.
Nuisance is one of the oldest causes of action known to the common law. The right of quiet enjoyment of one’s property is deeply entrenched within our legal system, but what constitutes a nuisance in tort? When something is annoying we often think of it as a nuisance. However there is a difference between what constitutes a legal nuisance in law and whether you can obtain a remedy for it. In this sense the Court will look at case law precedents and to a degree also adopt a common sense approach in their assessment of a nuisance.
A private nuisance in law is when one person substantially and unreasonably interferes with another person’s land or use of their land. Unlike trespass, an interference can amount to a private nuisance even if it is not direct or intentional. Odour, noise, pollution and even encroaching trees have been constituted as a nuisance in common law and may grant you a right to be given compensation/damages or to have the nuisance remedied.
A neighbour’s barking dog may not constitute a nuisance unless the interference is regular and a Court will outweigh the competing interests in a pragmatic sense, recognising that some discomfort and inconvenience is likely to occur regardless of where people live.
A public nuisance is when a person causes a nuisance which endangers the life, health, property morals or comfort of the public or “obstructs the public in the exercise or enjoyment or rights common to all her Majesty’s subjects” A.-G. v P.Y.A Quarries Ltd CA 1957 . Like a private nuisance the interference has to be both substantial and unreasonable and must not be trivial or inconsequential.
An example of a public nuisance would be a blocking of a public road, however an individual would need to show that the public nuisance caused them a special damage. Public nuisance is often supported by statutory provisions that give remedies and penalties for default, such as section 39A and subsequent sections in Part III of the Health Act 1958.
Government bodies can also be liable in nuisance for building works that are undertaken and can be liable in nuisance to individuals if matters such as access is denied, for a period of time. Despite a Council or individual having a building permit to undertake work, the Environment Protection Act 1970 (Vic) expressly provides that nothing in that Act, including approvals under it, takes away anyone’s common law right to prevent, control or abate pollution or environmental harm, or to obtain damages.
The law of nuisance has developed to protect individuals and although many things may constitute a nuisance the most pragmatic way to test if something is being a nuisance, is to ask oneself would the ‘reasonable person’ test apply? Nuisance comes from the latin word, nocere ‘ to hurt’ and in a lot of cases it sure does.
For more information or advice in regard to property law rights or remedies you should contact lawyers well versed in this field of law.