Oh! What a Nuisance
December 2, 2016
Overgrown shrubbery, cars parked on pathways, repeated trespassing on your property, smoke and smell from burning rubbish – these are things that may be considered a nuisance in your neighbourhood.
Under common law, if your circumstances fall into the legal definition of nuisance (as opposed to something that is just annoying), then you may have a cause of action against the person causing the nuisance.
There are two main types of nuisance: private or public nuisance, both of which involve interference with an individual’s enjoyment of land.
A public nuisance can be both a civil wrong (something for which a person can take another person to court) and a crime (where there may be penalties such as fines or imprisonment for creating the nuisance).
Private nuisance is a dispute that occurs between two individuals, but is not a crime.
A public nuisance could involve someone blocking off a public pathway with their car, which affects a large number of people to varying degrees. Other things that may be considered a public nuisance are problems that could endanger a person’s health, are offensive or seriously disrupt a person’s comfort. For someone to have an action for compensation for the inconvenience or the interference suffered, they would need to show that there was “special damage” (i.e. the impact on them was greater than damage to the general public).
If you believe you are affected by what you think is a public nuisance, you should lodge a complaint with your local council, this body is required to respond and fix all public nuisances within a reasonable timeframe. If your local council does not take any action in a timely manner, you should consider seeking legal advice about pursing your own legal action.
A private nuisance is something that only affects an individual or a small group of people directly. There has to be a substantial and persistent interference with the enjoyment and use of your land. To make a private nuisance claim, you must demonstrate that the complaint is not trivial or unreasonable in nature. If there has been monetary damage i.e. your property has been affected by the burning smell of rubber, you will need to provide details of what loss you have experienced due to the private nuisance.
If you have experienced what you believe to be a private nuisance, please contact our office and we can assess whether you should pursue a legal action.
If a court does find that there has been a public or private nuisance caused by your neighbour, a court can order your neighbour to:
- Stop or remove the nuisance; and/or
- Stop doing something that is likely to create a nuisance or harm you/your property; and/or
- Pay you compensation.