Nuisance Flashcards
Under the Summary Offences Act 1966 (Vic),
individuals who light fires on their property that damage,
destroy or endanger another property may be prosecuted under criminal law.
The Public Health and Wellbeing Act 2008 (Vic)
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.
Under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth),
fines can be imposed on unions who blockade building sites.
The Public Health and Wellbeing Amendment (Safe Access Zones) Act 2015 (Vic)
made amendments to
legislation to stop people harassing members of the public who are seeking to enter an abortion
Impact of nuisance on the plaintiff
• 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.
Impact of nuisance on the defendant
- 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.
Defence 3 – Reasonable use
- Where the defendant can establish that their use of land is reasonable, the plaintiff will not succeed in their action.
Defence 2 – Consent
- 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.
Defence 1 – Statutory authorisation
- 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.
Possible defences
- statutory authorisation
- consent
- reasonable use.
What does the limitation act allow?
- 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’.
Under the Limitation of Actions Act 1958 (Vic), an action for damages for nuisance must be brought:
• 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.
Element 3 – The plaintiff has suffered damage
- 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).
What will the court examine to determine whether the interference was reasonable
- 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?
Councils causing Nuisance.
- ‘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’