The Law Handbook 2024

578 Section 6: Houses, communities and the road More information about the DSCV and the services it offers can be found on DSCV’s website (www.disputes.vic.gov.au) . Nuisance Types of nuisance, responsibility and remedies When something is annoying, we often think of it as a nuisance. However, there is a difference between something that we find annoying and what is a legally classed as a ‘nuisance’. The law and the courts will only be able to provide a remedy to you if the situation you are complaining about fits within that legal definition of nuisance. There are two recognised types of nuisance: private and public. Both types of nuisance involve interference with an individual’s enjoyment of land. Public nuisance is often both a civil wrong (something for which a person could take the person responsible to court) and a crime, and there may be penalties such as fines or imprisonment ordered against those responsible for creating the nuisance. Private nuisance is not a crime; it is essentially a dispute between two individuals. For information about noise and nuisance, see ‘Noise’, below. Public nuisance An example of public nuisance is someone blocking off a public road. This action would have an effect on a wide range of people, each of whom would be affected or disadvantaged to differing degrees. For an individual to have an action for compensation for the inconvenience or interference suffered, they would have to show that the impact was such as to cause them special damage . That is, they must show that the impact on them was greater than that on the general public. In the example above, to have any sort of action for compensation for nuisance, you would have to show that you needed to use that particular road to go to work each day, and that the action of blocking it caused you particular problems in getting to work, or a similar sort of inconvenience. It would not be enough to say to a court that you had suffered a minor inconvenience or could no longer have your usual Sunday drive because the road was blocked. The inconvenience or interference must not be trivial or inconsequential, and there must be a good reason for it occurring or continuing to occur. Private nuisance Private nuisance is just that – private. It is enough to show that you have been affected by some act or omission of another person. The effect must be that your enjoyment and use of your land has been interfered with. To have a claim relating to a private nuisance, you must show that you live on the property (this includes if you are living on the land under an agreement with the owner). In making your complaint in a court, you must show that the nuisance complained of is not trivial or unreasonable. When deciding whether what you’re complaining about is a private nuisance, a court looks at a number of factors, including: • the general nature of your neighbourhood; • where the interference took place; • what activity is causing the interference; • how long the interference lasted and whether it is ongoing; • the time of day or night the interference occurs; • the impact the interference is having on you; • whether the interference was pre-existing when you moved into your property; • how useful or necessary the activity causing the interference is; and • what reasonable people would think of the interference. The court tries to use common sense in assessing these factors. It will also weigh the inconvenience or impact of the interference on you against the cost and effect of having the person responsible for the interference modify or stop their activities. Examples of interference that have been found to be private nuisances include noisy animals, loud air-conditioners, smoke, overhanging tree branches, tree roots growing intoneighbours’ land and interfering with drainage, vibrations and dust. Activities that have caused people to fear for their safety – such as aerial spraying of crops and firing of guns on a rifle range – have also been assessed as ‘private nuisance’. It is a reality of living in close quarters to our neighbours that there will be competing interests and