Nuisance

Question 1

Under the Summary Offences Act 1966 (Vic),

Answer 1

individuals who light fires on their property that damage,

destroy or endanger another property may be prosecuted under criminal law.

Question 2

The Public Health and Wellbeing Act 2008 (Vic)

Answer 2

provides that it is illegal to allow a nuisance to emanate from any premises owned or occupied by that person. Local councils have the power to ensure that these laws are observed.

Question 3

Under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth),

Answer 3

fines can be imposed on unions who blockade building sites.

Question 4

The Public Health and Wellbeing Amendment (Safe Access Zones) Act 2015 (Vic)

Answer 4

made amendments to

legislation to stop people harassing members of the public who are seeking to enter an abortion

Question 5

Impact of nuisance on the plaintiff

Answer 5

• Effect on mental health – This could include conditions such as depression or anxiety. For example,
a person may develop anxiety issues as a result of listening to a barking dog.
• Quality of life – This could be a consequence of the breach. For example, malicious creation of
noise or vibration can greatly affect a person’s right to enjoy their property.
• Costs – This could occur as a result the impact of the nuisance. For example, a person who is
operating a business may suffer financially through loss of business, loss of productivity or having to spend money to minimise the impact of the nuisance.

Question 6

Impact of nuisance on the defendant

Answer 6

• Inconvenience – This could require the defendant to attend hearings in an attempt to settle the dispute. For example, a neighbour attending a mediation hearing.
• Costs – This could occur when the defendant loses the case. For example, the defendant might be ordered to pay the legal costs of the plaintiff, causing financial hardship.
• Business failure –This could be a consequence of an injunction. For example, a business might suffer financially with an order to minimise the impact of the nuisance.

Question 7

Defence 3 – Reasonable use

Answer 7

• Where the defendant can establish that their use of land is reasonable, the plaintiff will not succeed in their action.

Question 8

Defence 2 – Consent

Answer 8

• In a case arising under the tort of nuisance, the defendant might argue that the plaintiff gave consent to the activity that is now being claimed as having caused damage, loss or injury.

Question 9

Defence 1 – Statutory authorisation

Answer 9

• The defence of statutory authorisation relies on how the courts view the intention of the relevant legislature. It is presumed that because the parliament intended a certain activity such as a major infrastructure project, then the parliament has authorised any consequences of the activity.

Question 10

Possible defences

Answer 10

• statutory authorisation
• consent
• reasonable use.

Question 11

What does the limitation act allow?

Answer 11

• The Act allows plaintiffs to apply to a court for leave to extend a limitation period to allow the issue of court proceedings. The application must be considered ‘fair and reasonable’.

Question 12

Under the Limitation of Actions Act 1958 (Vic), an action for damages for nuisance must be brought:

Answer 12

• for general nuisance claims (e.g. where there has been property damage), six years from the date on
which the cause of action accrued (i.e. when the damage occurred)
• where the damages claimed by the plaintiff include damages in respect of personal injuries consisting of a disease or disorder contracted by any person, may be brought not more than three years from the date on which the person first knows that he or she has suffered the injuries and those injuries were caused by the defendant.

Question 13

Element 3 – The plaintiff has suffered damage

Answer 13

• For Public Nuisance - the impact on the plaintiff must be shown to be greater than that suffered by the general public.
• The damage can be material or non-material damage. Material damage includes physical damage (e.g. damage to crops), and non-material damage includes non-physical damage (e.g. loss of revenue).

Question 14

What will the court examine to determine whether the interference was reasonable

Answer 14

• what is the nature of the interference? The court would look at the behaviour of the defendant and whether this is reasonable and necessary
• the time of day in which the interference occurs
• the nature of the neighbourhood in which the person lives. Is it inner city, outer suburban or rural?
• is the nuisance or interference necessary for the community?
• is the interference ongoing or is it intermittent?
• how long has the nuisance or interference been in existence? Was it in the area before the plaintiff moved into their property?

Question 15

Councils causing Nuisance.

Answer 15

• ‘If the defendant knew or ought to have known of the nuisance and the real risk of reasonably foreseeable consequential damage to the plaintiff, it had an obligation to take such positive action as a reasonable person in its position and circumstances would consider necessary to eliminate the nuisance’

Question 16

Element 2 – There has been interference with the plaintiff’s use and enjoyment of the land

Answer 16

• This interference can involve a range of actions on the part of the defendant, including noises, dust, vibration, water run-offs, or even objects (such as golf balls).

Question 17

Element 1 – The plaintiff has a property right in or over the land

Answer 17

• Individuals also have the right to access public property, and if there is interference with their right to enjoy public property, a person may be able to sue.

Question 18

In order to establish nuisance, the following elements must be proven:

Answer 18

• the plaintiff has a property right in or over the land
• there has been interference with the plaintiff ’s use and enjoyment of the land
• the plaintiff has suffered damage.

Question 19

There are two types of nuisance:

Answer 19

• private nuisance

* public nuisance.

Question 20

private nuisance :

Answer 20

A type of tort involving an act or omission that substantially and unreasonably interferes with the use and enjoyment of land

Question 21

Public nuisance:

Answer 21

A type of tort involving an act or omission that interferes with the comfort or convenience of a number of people to a considerable degree

Question 22

What does Nuisance deal with?

Answer 22

Deals with the violation of the right of a person to reasonable convenience and comfort in life. A legal nuisance is a serious impact on our enjoyment of property.

Question 23

The tort of nuisance is designed to protect our rights to:

• enjoy our own land,
• freedom of movement
• seek an appropriate remedy

Answer 23

• enjoy our own land, which means that others cannot interfere with access to or enjoyment of private land. The law is clear that we are to be protected from excessive interferences with enjoyment of land from nuisances such as dust, noise and vibration
• freedom of movement, such as along roads and waterways (rivers and creeks) unless, for example, here are public works being undertaken that are being managed by a statutory authority
• seek an appropriate remedy from the courts where nuisance has occurred. A useful remedy in these cases can be an injunction, being a court order, which stops the defendant from engaging in the nuisance any further.