Not just a neighbour’s barking dog, or too many cars parked in your street after a long social evening, ‘nuisance’ and your property rights have a specific meaning at law: interference with a public or private interest which is reasonably foreseeable.
Right to private enjoyment
As a property owner, you are entitled to privacy and quiet enjoyment or your property. There may be something from neighbouring property, or which is under their control or responsibility, which is unreasonably affecting your enjoyment of your property (or even causing damage).
‘Nuisance’ is when a person with rights suffer unreasonable or substantial impact on their enjoyment of their rights. This can be a single event, but is more often something continuous or recurrent. Other factors affecting ‘private enjoyment’ may include the location, time and frequency of the activity, the extent of the harm, whether there was malice or the intensity of the problem.
Private ‘Nuisance’
The owner of land owes a general duty of care to their neighbours. Landowners should consider what they can reasonably expect would pose a hazard to others (what is reasonable between neighbours and what is foreseeable).
Private ‘Nuisance’ by a neighbour (the most common form of nuisance) often involves encroachment of some kind to your land (tree roots, a water leak, or soil contamination), or undue interference with ‘quiet’ enjoyment (ie, excessive noise at particular times, or blocked driveways).
Nuisance might include a neighbour’s new driveway/landscaping or a road development diverting water onto your land; or invasive roots from adjacent trees affecting nearby foundations or plumbing.
Solutions
In the first instance, ‘mediation’ is a cheaper option – can you approach the neighbour to raise your concerns? They may not be aware of the problem they have caused. Even after a discussion with a neighbour, you may still require assistance to solve significant issues, or if there is a history of ongoing problems. A third person can be helpful to identify problems and find solutions with your neighbour.
Legally, there are other remedies available. A claim can be made in court or the NSW Civil and Administrative Tribunal (depending on the circumstances), for an injunction to stop the activity continuing, and claim damages for the affect to property rights.
Resolve it early – help Now
The law of nuisance can be complex – depending on the facts of the situation and the relationship history with your neighbour. Seeking early legal advice can help parties reach agreement and avoid expensive or drawn out litigation.
If you require assistance to resolve a situation with your neighbour, APJ Law can advise you on your rights or help negotiate an outcome that is more suitable. We can also help write a letter of complaint, talk to a government organization for you, or advise you on the available courses of action.
Sandra believes the simplest solution is often the best - but not always. With listening and collaboration, clear goals can improve outcomes. She finds satisfaction in applying her skills to varied areas, including conveyancing, commercial agreements and collaborative mediation. As a former paralegal with APJ, Sandra completed legal qualifications with both the University of New England and Australia National University.... Read More
