The Law Handbook 2024

Chapter 6.4: Neighbour disputes 579 activities, which on occasionmay affect the enjoyment of living in the neighbourhood. A court, in deciding on a complaint of nuisance, will weigh up these competing interests in a pragmatic sense, recognising that some noise, annoyance, inconvenience and discomfort are likely to occur wherever people live. For example, your neighbour’s barking dog might wake you up every once in a while, but courts know that dogs bark and that the law allows people to keep dogs. Unless a dog is particularly noisy, a court will not usually help you to keep it quiet. Who is responsible for nuisance? The person who creates a nuisance is not the only person who may be held by a court to be responsible. A person who occupies land and allows someone else to create or maintain a nuisance on the land is also legally responsible for the nuisance. So is a person who allows someone else to do something that creates a ‘special risk’ of a nuisance being created. For example, the occupier of a hall who hires it out for wedding receptions may be held to be responsible if those using the hall are too noisy. People can also be held responsible for a nuisance where they know, or ought to know, about a nuisance on their property but do nothing to remove or stop it. What you can do about nuisance If your neighbours are creating a nuisance, the first thing you should do is talk to them about it and ask them politely to stop it or remove it. It may help if, before you speak to your neighbours, you try to put yourself in their shoes. Why are they creating the nuisance? Are they likely to continue it? Do they know that it bothers you? If talking gets you nowhere, it may be useful to use the services of a mediator (see ‘Mediation’, above). If that fails, you may decide to exercise some ‘self- help’ (see ‘Self-help for tree disputes’, below.) The law calls this do-it-yourself action ‘abatement’. If you are unable to resolve the matter after discussing the matter with your neighbour, and self- help is not viable or successful, the next step is to take legal action. However, taking your neighbour to court can be expensive and complicated and should always be a last resort. You can find out about the simpler, quicker and cheaper alternatives to court at the DSCV website (www.disputes.vic.gov.au) . What a court can do about nuisances If a court finds that your neighbour has created a nuisance, and you are unable to resolve the issue informally, the court can: 1 order your neighbour to stop or remove the nuisance (this order is called an injunction); 2 order your neighbour to stop doing something that is likely to create a nuisance and harm you or your property; 3 order your neighbour to pay you compensation. Tree disputes Trees are a common source of dispute between neighbours. Overhanging branches and encroaching roots have the potential to cause property damage and personal injury, and they can also affect the way you enjoy your property. Encroaching trees can constitute a private nuisance (see ‘Private nuisance’, above) in that they may interfere with the enjoyment and use of your land. For example, overhanging branches may regularly drop leaves into your swimming pool or protrude over your house or children’s play areas. Before considering any action, you should talk to your neighbour about the problem and ask them politely to prune the tree, dig up the roots or assist you in the operation (see ‘Resolving problems’, above). It is possible to take legal action ordering the neighbour to arrange for the tree to be pruned. The tree must be causing a substantial and unreasonable interference with your use and enjoyment of the land for it to be considered a nuisance at court. However, taking your neighbour to court can be an expensive and time-consuming process with uncertain outcomes. Court action is likely to adversely affect the relationship between you and your neighbour and should only be considered as a last resort. You can learn about the simpler, quicker and cheaper alternatives to court at the DSCV website (www.disputes.vic.gov.au) . Damages for actual damage to your property from a nuisance tree, such as a cracked driveway from tree roots, may be available; however, it may be difficult to prove that the nuisance tree caused the damage. Self-help for tree disputes Self-help is the most common remedy in this situation. You are legally entitled to cut back any branches or