Nuisance and Trespass in Neighbour Disputes

Nuisance and trespass can be causes of action in civil litigation in relation to neighbour disputes.

Neighbour disputes can be incredibly stressful and can impact your enjoyment of your property.

If you have not found the relief you want through QCAT or by a peace and good behaviour order, then you may be able to commence legal action for nuisance and trespass.

Nuisance is the unlawful interference with the person’s use or enjoyment of land, or some right over it, or in connection with it.

Trespass is the direct, forcible, and wrongful interference with the person or the person’s land or chattels.

If these elements can be made out, then you can sue your neighbour for compensatory damages, aggravated damages, and exemplary damages.

If you successfully obtain judgment for damages and the neighbour does not pay, then you can enforce the order by an enforcement warrant for seizure and sale of the neighbour’s real property.

This article will explain nuisance, trespass, compensatory damages, aggravated damages, and exemplary damages.

Private Nuisance

In Hargrave v Goldman [1963] HCA 56, Windeyer J said:

A nuisance has been defined as an “unlawful interference with a person’s use or enjoyment of land, or of some right over, or in connexion with it” … But some particularity is required to give content to the phrase “unlawful interference”. Generally speaking, the term “nuisance” denotes a state of affairs that is either continuous or recurrent.

So, private nuisance is the unlawful interference with the person’s use or enjoyment of land, or some right over it (such as an easement or right of way), or in connection with the land or right over it.

In Oldham v Lawson (No. 1) [1976] VicRp 69 Harris J said:

In the tort of nuisance, the unreasonable interference with the use and enjoyment of land may take the form of physical damage to property; but it may also consist of interference with the comfort or amenity of the inhabitants of the property

So, the unreasonable physical damage to property, and also the unreasonable interference to the comfort or amenity of the inhabitants.

In Sedleigh-Denfield v O’Callaghan [1940] AC 880, Lord Wright said:

A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with.

So, essentially it is a balance of rights, and not a one-sided argument.  The rights of both parties are to be considered.

In Bilic & Bilic v Nicholls & Ors [2013] QDC 110, Dearden DJC said:

To establish a cause of action in nuisance you must show that:

You have title to sue in respect of the particular nuisance;

The neighbour has unlawfully interfered with your property rights; and

That interference was both substantial and unreasonable.

So, this means that you must prove that you have title to sue, the neighbour has interfered with your property rights, and the interference was both substantial and unreasonable.

I will explain these in more detail below.

You have Title to Sue in Respect of the Particular Nuisance

Having title to sue means that you have the authority to the sue in nuisance.

Both an owner and an occupier can sue for nuisance.  If they are the same person then great.  If they are different, then the owner and the occupier can both sue, but for different damages.

In Stereff v Rycen & Anor [2010] QDC 117 Irwin DCJ said:

[i]t is wrong to assert on behalf of the defendants that an action in nuisance lies on the suit of the person in lawful possession … a person who owns land can sue for private nuisance. If the owner and occupier are different, both can sue with the owner receiving compensation for damage to the reversion.

So, if you are an owner of real property, or the occupier (tenant) in the real property, you can sue the neighbour in nuisance, provided that you meet the other criteria.

One of those other criteria is that the neighbour has unlawfully interfered with your property rights.

The Neighbour has Unlawfully Interfered with your Property Rights

The dictionary defines interfere to mean:

to come into opposition, as one thing with another, especially with the effect of hampering action or procedure; to take part in the affairs of others; meddle; to interpose or intervene for a particular purpose.

So, if your neighbour hampers, meddles, intervenes, or opposes your property rights then this could constitute nuisance.  But what are property rights.

Property rights are numerous, but the most relevant in relation to nuisance are (but not limited to):

1. The protection against physical damage to the property;
2. Protection of the comfort, health, or enjoyment of the land;
3. Protection of common law rights, such as water rights.

Obviously, these are broad terms, however the most common is interference with the use and enjoyment of the land.  In Hargrave v Goldman [1963] HCA 56, Windeyer J said:

In nuisance liability is founded upon a state of affairs, created, adopted, or continued by one person which, to a substantial degree, harms another person (an owner or occupier of land) in his enjoyment of his land.

The interference must be both substantial and unreasonable.

That Interference was both Substantial and Unreasonable

The dictionary defines substantial to mean:

large in size, value, or importance; relating to the main or most important things being considered

So, the interference cannot simply be trifling, paltry or small and not important.

The dictionary defines unreasonable to mean:

not fair or acceptable; not based on or using good judgment; not fair

Norbury v Hogan [2010] QCATA 27 Justice Wilson, President spoke about what is reasonable in an action for nuisance, referring to Oldham v Lawson (No 1) [1976] VicRp 69 said:

What are reasonable standards must be determined by common sense, taking into account relevant factors, including what the Court considers to be the ideas of reasonable people, the general nature of the neighbourhood and the nature of the location at which the alleged nuisance has taken place, and the character, duration and time of occurrence of any noise emitted, and the effect of the noise.

Justice Wilson, President then went on to say:

In residential areas, the cases show, the principle of ‘give and take, live and let live’ is customarily applied so that the ‘ordinary and accustomed use’ of premises will not be considered a nuisance, even if some inconvenience to a neighbour is caused.

This objective test of what is unreasonable it to be applied individually in each case.  There must also be a certain amount of give and take, & live and let live.

Nuisance Standard of Evidence

It is incumbent on the plaintiff to prove that there is a nuisance.

In Bolton v Stone [1949] 1 All ER 237, Oliver J stated:

Whether such an act does constitute a nuisance must be determined not merely by an abstract consideration of the act itself, but by reference to all the circumstances of the particular case, including, for example, the time of the commission of the act complained of; the place of its commission; the manner of committing it, that is, whether it is done wantonly or in the reasonable exercise of rights; and the effect of its commission, that is, whether those effects are transitory or permanent, occasional or continuous; so that the question of nuisance or no nuisance is one of fact.

Fleming’s The Law of Torts 10th ed [21.80] states:

Legal intervention is warranted only when an excessive use of property causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, having regard to the prevailing standard of comfort of the time and place.

In Marsh -v- Baxter [2015] WASCA 169, Newnes & Murphy JJA state at [770]:

Whether a particular use of land substantially interferes with the use and enjoyment of another’s land is to be judged objectively. At least in the absence of physical injury to land, the locality of the district will generally be relevant to what constitutes substantial interference with the use and enjoyment of land, and regard is had to what an ordinary average resident of that district ought reasonably to have expected under the circumstances.

When an interference is not more than what a typical resident of the area may reasonably expect, it is not considerable. There will be consideration for reasonable give and take when determining whether interference is appropriate.

However, this may not be the case if actuated by malice or deliberate intent. In Christie v Davey [1893] 1 Ch 316, the Court addressed the issue of intent and malice.  This case was concerned with noise complaints from the neighbour’s property.  The Court decided:

In my opinion the noises which were made in the Defendant’s house were not of a legitimate kind. They were what, to use the language of Lord Selborne in Gaunt v. Fynney, “ought to be regarded as excessive and unreasonable.” I am satisfied that they were made deliberately and maliciously for the purpose of annoying the Plaintiffs.

If the plaintiff can argue that the nuisance acts were done maliciously with the intention to annoy them, then this might turn something that a typical resident of the area may reasonably expect, into a act of nuisance.

Examples of Private Nuisance

As a guide by way of example, the Courts have ruled on the following examples of private nuisance.

1. Continual surveillance;
2. Filming the plaintiffs;
3. Threatening to kill the plaintiffs;
4. Threats with racial vilification
5. Sexual orientation vilification;
6. Large number of unwarranted complaints made to the Council;
7. Removal of the earth causing a loss of lateral support to that land; and
8. Interfering with safe access to plaintiff’s property.

These are just by way of example, from the Court cases.  There could be any number of other examples of nuisance from one neighbour to another.

Private Trespass

Private Trespass can be split up in two (2) different ways:

1. Trespass to land; and
2. Trespass to the person.

I will detail what both of these mean below.

Trespass to Land

Butterworths Legal Dictionary defines trespass to land to mean:

The intentional or negligent act of an individual which directly interferes with another individual’s exclusive possession of land without lawful justification.

Obviously, remarkably similar to nuisance, the Courts have added further definitions to a civil trespass to land.  In Cosenza v Origin Energy Limited [2017] SASC 145 Blue J looked at the precedents and summarised:

The elements of the cause of action of trespass to land are:

1. the plaintiff is in exclusive possession of land;

2. the defendant enters onto the land or otherwise directly interferes with the plaintiff’s exclusive possession of the land; and

3. the entry onto the land is a voluntary act or the direct interference with the plaintiff’s exclusive possession of the land is an intentional act.

In Bilic & Bilic v Nicholls & Ors [2013] QDC 110 the Court defined trespass to land to mean:

An unjustified entry of a person on land in the possession of another, carried out either intentionally or negligently, is an actionable trespass even if no damage is caused.  The plaintiff in an action of trespass to the land is the person who was or is deemed to have been in possession at the time of the trespass. This includes the landlord owner of a relevant property with a reversionary interest.

In certain situations, trespass to land might be found if in the airspace above the land, or in the earth beneath the land.  In Drone danger: Remedies for damage by civilian remotely piloted aircraft to persons or property on the ground in Australia [2016] UTSLRS 24 Pam Stewart says:

The flight height of an RPA (which must not be higher than 400 feet above ground but may be substantially lower) is such that it may interfere with the ordinary use and enjoyment of land and thereby constitute a trespass. The remaining elements of the tort of trespass to land would be likely satisfied: that the RPA pilot engaged in a positive voluntary act that directly caused a physical interference with the airspace above the plaintiff’s land.

So, trespass to land is the intentional or negligent interference with a person’s use and enjoyment of land, or the entering onto the land of another person in exclusive possession.

Examples of Trespass to the Land

As a guide by way of example, the Courts have ruled on the following examples of trespass to land.

1. Utilising a digger and excavating into a person’s property between 1 and 2 metres;
2. Dumping that dirt in front of the person’s property;
3. Throwing mud at a person’s house;
4. Destruction of trees;
5. Low flying a drone over the property;
6. Entering the property for no reason;
7. Parking a car on the plaintiff’s land;
8. Breaking fences or other property annexed to the land;
9. Removing items from the house or the land; and
10. Construction intrusion onto plaintiff’s land.

These are just by way of example, from the Court cases.  There could be any number of other examples of trespass from one neighbour to the land of the other.

Then there is also the tort of trespass to the person.

Trespass to the Person

Butterworths Legal Dictionary defines trespass to the person to mean:

An infringement of a plaintiff’s rights in relation to his or her body by the direct interference of another in the absence of lawful justification.  The interference may be intentional or negligent.  There are three (3) types of trespass to the person: Assault, battery, and false imprisonment.

So, running alongside any criminal charges, the trespass to the person is essentially:

1. Assault;
2. Battery; and
3. False imprisonment

I will explain these elements in more detail below.

Trespass to the Person – Assault

Butterworths Legal Dictionary defines the tort of assault to mean:

It consists of an intentional act or threat directly placing the plaintiff in reasonable apprehension of an imminent interference with his or her person, or the person of someone under his or her control.

So, an assault can be actual physical interference with the body, or the threat of interference with the body.

In Rixon v Star City Pty Ltd [2001] NSWCA 265 in a joint decision, Priestley JA, Sheller JA, and Heydon JA said:

A traditional definition of assault is “an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect”

Obviously, not all words used in this way will be assault, but this is to be determined in the proceeding.

Trespass to the Person – Battery

Butterworths Legal Dictionary defines the tort of battery to mean:

The reckless or intentional application of force to another person without consent, lawful excuse, or justification.

So, battery will be the intentional or negligent harmful or offensive contact with a person.

Again in Rixon v Star City Pty Ltd [2001] NSWCA 265 the Court tried to define battery.  In looking at the precedents, it is clearly difficult to fully define.  They say that battery is:

the least touching of another in anger is a battery … but if two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery.

They then say:

the absence of anger or hostile attitude by the person touching another is not a satisfactory basis for concluding that the touching was not a battery

They also say:

For an adult to jump on another and snatch her shoulder bag is clearly unacceptable. Between 13-year-old schoolboys it might perhaps be seen as `as unremarkable as shaking hands’.

But essentially, for a battery to likely occur it must be outside of the scope of everyday interactions.

Similar to assault, not all applications of force will be battery, but this is to be determined in the proceeding, as the determination should be informed by context.

Assault and Battery

There can be assault without battery, and battery without assault.

For example, an assault without battery will be the threat of one neighbour doing something to another neighbour, without an act of physical violence.

Or a person hitting another person from behind, or throwing a missile at them, without the persons’ knowledge, thereby causing a battery without the physical threat element.

Trespass to the Person – False Imprisonment

Butterworths Legal Dictionary defines the tort of false imprisonment to mean:

Unlawfully restraining the liberty of another person.  The restraint must be a total, not merely a partial, obstruction of a person’s free movement.

In Myer Stores Ltd v Soo [1991] VicRp 97 Murphy J said:

The gist of the action for false imprisonment is the mere imprisonment. As a result, the plaintiff carries the burden of establishing no more than imprisonment. He need not prove it was unlawful. If imprisonment is proved it is for the defendant if he is to escape liability to prove a lawful justification for the imprisonment either at common law or by statute.

So, being restrained, or imprisoned without legal justification is considered an intentional wrong and a trespass against the person.

Remedies for Nuisance and Trespass

The remedies for nuisance and trespass include:

1. Self-abatement;
2. Injunctions; and
3. Damages.

I will explain these in more detail below.

Self-Abatement (Self Help)

Self-abatement means taking steps yourself to reduce or remove the thing causing nuisance or trespass (if possible).

Typically, this can include chopping branches overhanging onto your property, or digging roots.

This can include any reasonable activity, so long as you do not enter, or damage, the neighbour’s property.

As well as self-abatement, you can also seek injunctions from the Court.

Injunctions

Injunctions are an order of the Court restraining the neighbour from beginning or continuing with the conduct which constitutes nuisance or trespass.

For example, this could be an injunction for the neighbour to stop playing making a certain noise, or doing a certain action.

If you can prove the above, and you have a case for nuisance and/or trespass, then you are able to sue the bad neighbour for damages.

Damages

Importantly, if your neighbour is found to be liable for nuisance or trespass, then you are entitled to damages from your neighbour.

In Stereff v Rycen & Anor [2010] QDC 117 Irwin DCJ said (referring to Cassell and Co Ltd v Bruin [1972] UKHL 3):

The three heads under which damages are recoverable for those torts which damages are “at large” are classified under three heads [compensatory, aggravated, and exemplary]

As stated above, these damages can be:

1. Compensatory Damages
2. Aggravated Damages
3. Exemplary Damages

I will explain these heads of damages in more detail below.

Compensatory Damages

Compensatory damages are damages to compensate the party for self-abatement, the cost of having to build a wall, a fence, or get floodlights or security cameras.

Compensatory damages are a calculation of the probable and natural consequences of the trespass or nuisance.

In Cassell and Co Ltd v Bruin [1972] UKHL 3 Lord Diplock defined compensatory damages as:

Compensation for harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought. In addition to any pecuniary loss specifically proved the assessment of compensation may itself involve putting a money value upon physical hurt, as in assault, upon curtailment of liberty, as in false imprisonment or malicious prosecution, upon injury to reputation, as in defamation, false imprisonment and malicious prosecution, upon inconvenience or disturbance of the even tenor of life, as in many torts, including intimidation.

So, the injured party is entitled to compensatory damages to attempt to put them back in the position that they would have been but for the actions of the bad neighbour.

The Court can also award aggravated damages in these cases.

Aggravated Damages for Nuisance and Trespass

In actions like nuisance or trespass, where damage is not the gist of the action, the injured person is also able to claim aggravated damages.

In Cassell and Co Ltd v Bruin [1972] UKHL 3 Lord Diplock defined aggravated damages as:

Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did it.

Aggravated damages allow the injured party to claim for humiliation, embarrassment, distress, stress, and/or indignity.

In Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40 the High Court said:

Aggravated damages … are … given by way of compensation for injury to the plaintiff, though frequently intangible, resulting from the circumstances and manner of the defendant’s wrongdoing.

In New South Wales v Ibbett [2006] HCA 57 the full Court of the High Court said (following Uren):

Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing.

So, for an award of aggravated damages in Australia there must be an aggravating factor, or aggravating factors, which means that the conduct of the bad neighbour is especially bad, causing the injured party humiliation, embarrassment, distress, stress, and/or indignity.

In some cases, the Court will also award exemplary damages.

Exemplary Damages for Nuisance and Trespass

Exemplary damages (sometimes referred to as punitive damages) are damages which punish the bad neighbour and attempt to deter similar future conduct.

In Cassell and Co Ltd v Bruin [1972] UKHL 3 Lord Diplock defined exemplary damages as:

Punishment of the defendant for his antisocial behaviour to the plaintiff.

In Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40 the High Court said:

exemplary damages … might be awarded if it appeared that, in the commission of the wrong complained of, the conduct of the defendant had been high-handed, insolent, vindictive, or malicious or had in some other way exhibited a contumelious disregard of the plaintiff’s rights.

In Lamb v Cotogno [1987] HCA 47 the full Court of the High Court said:

[Exemplary damages] apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence, or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff’s rights.

So, exemplary (or punitive) damages can be awarded in neighbour dispute cases because in a lot of cases, the bad neighbour will usually have a long history of repeated, wanton, malicious, unreasonable behaviour.

Examples of Judgments for Nuisance and Trespass

The purpose of suing for nuisance and trespass is to get a judgment or enforceable money order that can be enforced against the defendant’s property.

Some examples of judgments in neighbour disputes in Queensland include:

In Bilic & Bilic v Nicholls & Ors [2013] QDC 110 the Court said:

I give judgment for the plaintiffs Dragan and Vesna Bilic against the first defendant, Andrew Nicholls, the second defendant, Sharyn Nicholls, and the third defendant Jimi Lee, as follows:

(a) Restitutionary compensatory damages $73,000

(b) Aggravated compensatory damages $30,000

(c) Interest at 10% per annum from 16 March, 2011 to 17 May, 2013 -$103,000 x 10% x 2.17 years = $22,351

(d) Exemplary damages – $30,000

(e) Total – $155,573

In Stereff v Rycen & Anor [2010] QDC 117 the Court said:

I give judgment for the plaintiff for trespass to land and nuisance against Anthony Peter Rycen as follows:

(a) Restitutionary compensatory damages $15,314

(b) Aggravated compensatory damages $15,000

(c) Interest at 10% per annum from $18,734 – 20 January 2004 to 26 March 2010 ($30,314 x 10% x 6.18)

(d) Exemplary damages $25,000

TOTAL $74,048

In Brodsky v Willi [2018] QDC 1 the Court said:

Order that the defendants pay to the plaintiffs:

(a) by way of restitutionary damages for trespass the sum of $2,450;

(b) aggravated damages for trespass in the sum of $20,000;

(c) exemplary damages $25,000.

Interest in the total sum of $6,206.88.

In Greene v McInnes [2013] QDC 207 the Court said:

Judgment that the defendants pay the plaintiff $27,643, including interest of $2,643. Injunctions in terms to be finalised.

I would strongly suggest going and reading each of these cases.

As above, the purpose of commencing proceedings is to get an award of damages, a judgment, an enforceable money order.

This will hopefully deter the bad neighbour from that type of conduct in the future.

If they do not pay, or cannot pay, then you can enforce the judgment in a couple of different ways.

Enforcement of a Judgment for Nuisance and Trespass

A judgment can be enforced in a couple of different ways against a person:

1. By enforcement warrant; or
2. With bankruptcy.

I will explain these in more detail below.

Enforcement of Judgment with Enforcement Warrant

There are a number of different enforcement warrants, including:

1. Enforcement warrant for seizure and sale of property;
2. Enforcement warrant for redirection of earnings; and
3. Enforcement warrant for redirection of debts.

Obviously, in relation to a dispute with a bad neighbour, the obvious choice is an enforcement warrant for seizure and sale of the neighbour’s real property.

An enforcement warrant for seizure and sale of property allows you to lodge a writ on the title of the property, and then instruct the enforcement officer (bailiff) to seize and sell the property.

This will do two (2) things:

1. Give you your judgment plus costs and interest; and
2. Remove the bad neighbour from the property.

Obviously, evicting a family from their home is a decision not to be made lightly.

Read our article – Enforcement warrants for seizure and sale of property for more information.

If the enforcement warrant option is not available, then you can consider bankruptcy.

Enforcement of Judgment with Bankruptcy – Nuisance and Trespass

The bankruptcy process is commenced by issuing the judgment debtor a bankruptcy notice (against a person, not a company).

The requirements for issuing a bankruptcy notice are:

1. The debtor must be a natural person;
2. Have a judgment or order from the Court of $10,000.00 or more; and
3. The judgment is not more than six (6) years old.

If you fit this criterion, then you can issue a bankruptcy notice.

The bankruptcy notice states that the judgment debtor must do the following within 21 days:

1. Pay the debt;
2. Enter into an agreement to pay the debt; or
3. Apply to set the bankruptcy notice aside.

If they do not, then they have committed an act of bankruptcy, allowing you to file the creditor’s petition for an order that they be made bankrupt.

Once bankrupt, a trustee is appointed to deal with the bankrupt’s affairs and try to realise a fund to pay creditors.

The bankruptcy trustee will almost always sell the bankrupt’s interest in real property.

Nuisance and Trespass

As above, nuisance and trespass can be used in some cases to compensate a neighbour for the bad behaviour of the bad neighbour.

In some cases, you may be able to use the enforcement process to remove the neighbour from the property.

However, the above is very complicated, and you should always consult with a civil litigation lawyer.

Speak to our lawyers today for advice and assistance with nuisance and trespass

CONTACT OUR LAWYERS TODAY

OR CALL: 1300 545 133 FOR A FREE PHONE CONSULTATION

Nuisance and Trespass FAQ

We get a large number of enquiries for nuisance and trespass claims at Stonegate Legal.  

Here are some of the nuisance and trespass questions that we get asked.

What is the Difference Between a Nuisance and a Trespass?

Nuisance is the unlawful interference with the person’s use or enjoyment of land, or some right over it, or in connection with it, whereas trespass is the direct, forcible, and wrongful interference with the person or the person’s land or chattels.

What is an example of a nuisance?

Some examples of nuisance include continual surveillance, threatening behaviour, vilification on race or sexual orientation, unwarranted complaints made to the Council, maliciously playing loud music, and/or interfering with safe access to property.

What is nuisance law Australia?

Nuisance law in Australia is the unlawful interference with the person’s use or enjoyment of land, or some right over it (such as an easement or right of way), or in connection with the land or right over it, or the unreasonable physical damage to property, and also the unreasonable interference to the comfort or amenity of the inhabitants.

Is private nuisance the same as trespass?

No, private nuisance is not the same as trespass. Nuisance is the unlawful interference with the person’s use or enjoyment of land, or some right over it, or in connection with it, whereas trespass is the direct, forcible, and wrongful interference with the person or the person’s land or chattels.

What are the characteristics of nuisance?

The characteristics of nuisance include unlawful interference with the person’s use or enjoyment of land, you have title to sue in respect of the particular nuisance, the neighbour has unlawfully interfered with your property rights; and that interference was both substantial and unreasonable.

What is a defence to private nuisance?

A defence to private nuisance is when interference is not more than what a typical resident of the area may reasonably expect in that area. There will be consideration for reasonable give and take when determining whether interference is appropriate.

Speak to our litigation lawyers today for advice and assistance with nuisance and trespass

CONTACT OUR LAWYERS TODAY

OR CALL: 1300 545 133 FOR A FREE PHONE CONSULTATION