Private Nuisance Under the Australian Law of Torts
Under the common law, legitimate landowners have a fundamental right to enjoy quiet title to their properties, and this right has been extended under the law of torts to include the enjoyment of any rights that are exclusive and not generally available to the public. A breach of this enjoyment of rights is termed a “private nuisance,” and as the term implies, such breaches are private matters between individuals that can only be adjudicated in civil courts unless they also involve criminal practices or conduct. To gain some additional insights into the issue of private nuisance under the Australian law of torts, this paper provides a review of the relevant peer-reviewed and scholarly literature, followed by a summary of the research and important findings in the conclusion.
Review and Discussion
Nuisances are typically categorized as being either public or private, or some combination thereof (Kozlowski 1999). As the term indicates, public nuisances involve the general public and can take the form of threats to the public health, welfare, and safety that affects all residents within its scope of its influence; by contrast, private nuisances are typically more restrictive in their range and generally interfere with a private individual’s use and enjoyment of some type of property (Kozlowski 1999). Beyond these distinctions, although a tort can be a single isolated act, a private nuisance by definition involves a continuous violation of the enjoyment of property by its legitimate owner or owners. In this regard, the definition provided by Black’s Law Dictionary notes that, “A private nuisance is generally anything that by its continuous use or existence works annoyance, harm, unreasonable interference, inconvenience or damage to another landowner in the enjoyment of his property” (p. 1196). The doctrine of private nuisance has been expanded, though, to include virtually any type of property, the enjoyment of which is diminished in some fashion by the actions of another (Sedleigh-Denfield v O’Callaghan  AC 880 at 896-7 per Lord Atkin). According to Black’s, the term also means, “A nuisance affecting a single individual or definite small number of persons in enjoyment of private rights not common to the public. It is only a tort, and the remedy therefor lies exclusively with the individual whose rights have been disturbed” (p. 1196). As a result, unless there are activities that include public nuisances involved, a private nuisance suit must be adjudicated in a civil court. In this regard, Shelson advises that, “A private nuisance affects one or a small group of property owners in a manner different from its impact on the public generally, and typically involves a private suit for damages” (2011, p. 195).
According to Hyams (2005), under Australian tort law, private nuisance suits will involve finding fault in the behaviors or practices of others that diminish the enjoyment of property in some fashion. In this regard, Hyams advises that, “Australian tort law is (and always has been) fault based” (p. 348). Pursuant to the Court’s holding in Grand Central Car Park Pty Ltd. v Tivoli Freeholders  VR 62 per McInerney J (public nuisance), in order for fault to rise to the level needed for liability for nuisance, the defendant’s fault must include the following components:
1. The defendant knew or ought to have known of the nuisance;
2. The interference or damage to the neighbour’s property from the nuisance was reasonably foreseeable; and,
3. The defendant did not take reasonable action or steps to end the nuisance (at 72).
Such fault, though, must also rise to an actionable level and cannot typically involve minor, isolated infringements of property rights that are part and parcel of the human condition such as a dog barking once in awhile or a baseball that is accidentally tossed through a window by neighborhood youths. Congruent with the legal definition of private nuisance provided by Black’s, the defining characteristic of a private nuisance under Australian tort law would involve its continuous and ongoing nature. For instance, “What might distinguish a claim under private nuisance is the fact that generally the activity needs to be continuing rather than an isolated escape or event” (Private and Public Nuisance 2012). Incongruent with Australian tort law, though, was Lord Bingham’s suggestion that, “…there is in my opinion a category of case, however small it may be, in which it seems just to impose liability even in the absence of fault” (Transco plc v Stockport MBC  2 AC at p. 8).
The research showed that a private nuisance is distinguished under the Australian law of torts by being some type of infringement on legitimate property owners to enjoy their rights to their fullest. Such infringements, though, must rise beyond the level of the normal exigencies of human life and must include several elements of fault on the part of the defendant, including the defendant knew or should have known about the nuisance, the interference or damage to the neighbour’s property could be reasonably foreseen and the defendant failed to take reasonable action or steps to abate the nuisance. In the final analysis, Australian tort law is congruent with the common law and case law in other Anglo-American countries and there is sufficient precedential case law to evaluate the likely outcomes of cases involving private nuisances today.
Black’s Law Dictionary. (1991). St. Paul, MN: West Publishing Co.
Hyams, R. (2005). ‘School Supervision of Children outside School Hours in Australia: Who’s
Responsible?’ Journal of Law and Education, vol. 34, no. 3, pp. 347-349.
Kozlowski, J.C. (1999, July). ‘No Ifs, Ands or Butts about it…’ Parks & Recreation, vol. 34, no.
7, pp. 40-44.
Public and private nuisance. (2012). Legal Norms. [online] available: http://www.legalnorms.
Sedleigh-Denfield v O’Callaghan  AC 880 at 896-7 per Lord Atkin.
Shelson, J.W. (2011). ‘The Misuse of Public Nuisance Law to Address Climate Change.’
Defense Counsel Journal, vol. 78, no. 2, pp. 195-197.
Transco plc v Stockport MBC  2 AC at p. 8.
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