Transcript
Hi, welcome to the Australian
Law Students Law in Four
podcast.
Your go to source for legal
insights in 4 minutes or less.
I'm Nick Hodgkinson and today
we're talking about private
nuisance.
But first our obligatory
disclaimer.
The Law in Four is produced by
law students for law students it
is not, nor is it intended to
constitute legal advice.
If you require legal assistance,
you should contact your local
Law Society, who can direct you
appropriately.
For more information on the
Australian law student, visit
ourwebsite@theoslawstudent.com
Right Private nuisance?
It's the tort that safeguards
the right to use and enjoy one's
land.
In this episode, we'll explore
the three key elements of
private nuisance and the nuances
that come with them.
To kick things off, let's talk
about the first element, the
plaintiff must have title to
sue.
Title here refers to the legal
right to sue.
Those eligible to sue include
property owners in possession,
landlords facing permanent
devaluation, tenants with a
legal right to possession, and
licensees with occupancy
agreements.
Family members, despite being
licensees, lack the title to sue
for title.
You can refer to Hunter and
Canary Wharf.
Moving on now to the second
requirement, interference with
the use or enjoyment of land.
The interference can be
intangible or tangible and each
have their own unique
considerations.
Intangible interferences like
smells or noise must be
substantial and unreasonable.
Substantiality and
unreasonableness are found
applying the give or take test
from Monroe and Southern
Dairies.
The court in this test will
consider factors like locality,
duration, time, frequency,
extent, the plaintiff's
sensitivities, and the purpose
and utility of the defendant's
activity which causes the
interference.
Alternatively, tangible
interferences which involve
physical damage like smashed
windows or fires, require that
the damage be beyond triviality
to satisfy the substantial and
unreasonable test.
That test comes from the case
Saint Helen's Smelting and
Tipping.
Third, we need to establish the
defendant's fault.
This involves proving the
defendant's knowledge of their
nuisance and their connection to
it.
Fault can be established if the
defendant created, authorized,
continued, or adopted the
nuisance.
Before continuing and adopting A
nuisance, the court will
consider whether the defendant
knew or ought to have known of
the nuisance if damage was
foreseeable and if they failed
to comply with a measured duty
of care.
The measured duty of care
involves assessing the
reasonableness of actions to
prevent or minimize the
nuisance.
Considering factors like cost,
difficulty, and time available
at this stage, a defendant can
employ certain defenses to
escape liability.
These defenses include the
plaintiff contending to the
nuisance or legislative
authorization.
Legislative authorization does
not apply if the defendant could
reasonably have carried out the
authorized conduct without that
conduct causing the nuisance.
As we wrap up today, it's clear
that private nuisance in
Australia involves a careful
balance of rights and
responsibilities.
The law seeks to protect the
enjoyment of one's land while
considering the circumstances
and reasonableness of the
defendant's actions.
We hope that this episode has
shed light on the complexities
of private nuisance law in
Australia.
Join us next time on the
Australian Law Student Law in
Four podcast.
As always, if you have any
suggestions, please e-mail us at
team@theozlawstudent.com or
leave a comment in your review
on Spotify or Apple Podcasts.