The common law of private nuisance is based on the principle that everyone has a right to the quiet enjoyment of their property. Anything that interferes with this right may be a private nuisance. For something to be considered a private nuisance, it must be something unreasonable and substantial.
For a claimant to successfully bring a claim, they must establish the following:
- That a reasonable person would find the nuisance real and substantial; and
- That it does, in fact, interfere with their enjoyment of their property.
Some of the elements relevant to determining whether a reasonable person would find something real and substantial include:
- The type and degree of interference;
- The social implications of the activity causing the interference;
- Whether the claimant had taken reasonable measures to minimise their disturbance by the interference; and
- The damage or injury sustained by the claimant due to the interference.
Noise is commonly reported as a private nuisance. Other examples of interferences that could be classified thus include:
- Noxious odours;
- Branches overhanging from another property;
- Lights being shone onto a property;
- Animals being kept inappropriately on a nearby property;
- Barking dogs;
- Loud music.
If you have been accused of private nuisance, defences that may be available to you are dependent on the circumstances of the claim against you. Some examples of defences to nuisance claims include:
- Reasonable use-It is a defence to show that the defendant was reasonable in their action or behaviour. However, the onus is on the defendant to show that the act causing the interference was in fact reasonable.
- Consent- It is a defence to show that the act in which the defendant engages that caused the interference was engaged in with the plaintiff’s consent. Consent can either be express or implied.
If you have been the victim of nuisance, there are remedies which may be available to you depending on the circumstances of your claim:
- Compensatory damages: The primary remedy for nuisance is damages. A plaintiff will usually seek damages where the interference caused physical harm or “actual loss” (such as financial loss). Damages are also awarded for intangible interferences (such as smells or noises). Damages are awarded for past interference, but cannot be awarded prospectively.
- Injunction: An injunction is a court order preventing a party from doing something. Injunctions are discretionary remedies, which means that they may or may not be granted depending on a variety of factors, including whether damages would be an adequate remedy.
Under the Limitation Act 2005 (Western Australia), an action relating to nuisance must be brought within six years of the date of the harm being sustained.
If you are seeking further legal advice on this issue or require assistance, please contact Appius Lawyers and speak to one of our experienced solicitors.
