Trees often cause friction between neighbours. Public health nuisances include rubbish on the property or a house in dangerous repair. Lighting fires is subject to regulation and incinerators are included. Trespassing can include dumping rubbish. Officials such as gas, water and electricity meter readers, post office officials, health officers, and council officers are allowed to come onto your property. Police are allowed if they have a warrant. Property owners are responsible for the safety of visitors.
Types of nuisance, responsibility and remedies
When something is annoying, we often think of it as a nuisance. However, there is a difference between something that we find annoying and what is a legally classed as a “nuisance”. The law and the courts will only be able to provide a remedy to you if the situation you are complaining about fits within that legal definition of nuisance.
There are two recognised types of nuisance: private and public. Both types of nuisance involve interference with an individual’s enjoyment of land.
Public nuisance is often both a civil wrong (something for which a person could take the person responsible to court) and a crime, and there may be penalties such as fines or imprisonment ordered against those responsible for creating the nuisance.
Private nuisance is not a crime; it is essentially a dispute between two individuals.
For information about noise and nuisance, see “Noise”.
An example of public nuisance is someone blocking off a public road. This action would have an effect on a wide range of people, each of whom would be affected or disadvantaged to differing degrees. For an individual to have an action for compensation for the inconvenience or interference suffered, they would have to show that the impact was such as to cause them special damage. That is, they must show that the impact on them was greater than that on the general public.
In the example above, to have any sort of action for compensation for nuisance, you would have to show that you needed to use that particular road to go to work each day, and that the action of blocking it caused you particular problems in getting to work, or a similar sort of inconvenience. It would not be enough to say to a court that you had suffered a minor inconvenience or could no longer have your usual Sunday drive because the road was blocked. The inconvenience or interference must not be trivial or inconsequential, and there must be a good reason for it occurring or continuing to occur.
Private nuisance is just that – private. It is enough to show that you have been affected by some act or omission of another person. The effect must be that your enjoyment and use of your land has been interfered with.
To have a claim relating to a private nuisance, you must show that you live on the property (this includes if you are living on the land under an agreement with the owner).
In making your complaint in a court, you must show that the nuisance complained of is not trivial or unreasonable. When deciding whether what you’re complaining about is a private nuisance, a court looks at a number of factors, including:
• the general nature of your neighbourhood;
• where the interference took place;
• what activity is causing the interference;
• how long the interference lasted and whether it is ongoing;
• the time of day or night the interference occurs;
• the impact the interference is having on you;
• whether the interference was pre-existing when you moved into your property;
• how useful or necessary the activity causing the interference is; and
• what reasonable people would think of the interference.
The court tries to use common sense in assessing these factors. It will also weigh the inconvenience or impact of the interference on you against the cost and effect of having the person responsible for the interference modify or stop their activities.
Examples of interference that have been found to be private nuisances include noisy animals, loud air-conditioners, smoke, overhanging tree branches, tree roots growing into neighbours’ land and interfering with drainage, vibrations and dust. Activities that have caused people to fear for their safety – such as aerial spraying of crops and firing of guns on a rifle range – have also been assessed as “private nuisance”.
It is a reality of living in close quarters to our neighbours that there will be competing interests and activities, which on occasion may 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.
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.
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 “Resolving problems” and “Mediation”).
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).
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.
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”) 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”).
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 (see “What the courts can do”). You can learn about the simpler, quicker and cheaper alternatives to court at the DSCV website.
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 is the most common remedy in this situation. You are legally entitled to cut back any branches or roots from a tree that protrude onto your land up to the fence line. You do not have to give any warning that you are going to do this, although it is recommended that you discuss it with your neighbour first. The law calls this do-it-yourself action “abatement”.
You are not allowed to enter your neighbour’s land in order to carry out the work unless you have their permission. Anything you cut off your neighbour’s tree belongs to your neighbour and should be returned, preferably in a neat and tidy manner.
Self-help is not always a practical option and the services of a tree lopper or other professional may be required in dealing with a nuisance tree. It is important to be aware that unless your neighbour agrees to contribute to the cost beforehand, you may be unable to recover the costs of having this work done.
Getting a quote for repair and discussing the matter with your neighbour beforehand is preferable.
If a person in control of land brings onto the land and keeps anything there likely to cause damage if it escapes, that person could be liable for the reasonably foreseeable consequences of any escape. The escape may involve seepage, leakage or the collapse of an object. Water, electricity, gas, oil or fire might be involved.
Some element of “fault” will be necessary before any liability in negligence (and, in some instances, nuisance) can arise. However, fault will not be necessary if the principles of trespass (and, in some instances, the principles of nuisance) are satisfied.
The principal legislation concerned with nuisances dangerous to health is the Public Health and Wellbeing Act 2008 (Vic) (“PHW Act”). Under the PHW Act no one is allowed to cause nuisance or allow a nuisance to exist on, or emanate from, any premises owned or occupied by that person (s 61).
Local councils have the delegated power to make sure that this law is observed (s 60), and the power to regulate instances they consider constitute a nuisance.
Examples of what are considered to be nuisances under the PHW Act include:
• houses in such poor repair that they are about to fall down;
• premises used for keeping animals or birds;
• too much rubbish accumulating; and
• over-crowded houses and places infested with vermin.
If the council thinks a nuisance to health exists, it serves a notice on the person responsible for the nuisance (or the owner or occupier of the premises if that person cannot be found). The notice sets out what the council wants done about the nuisance, and when the work must be done by. If the required work is not done in time, the council can require the person responsible to go to a Magistrates’ Court.
The court can order the person to do what the notice requested in order to deal with the nuisance and stop it from happening again. The court can also impose a fine of up to 120 penalty units (pu) (from 1 July 2019 to 30 June 2020, the value of one penalty unit is $165.22; see “A note about penalty units” at the start of this book) and order a person to pay the costs of the council in bringing the court action. If a house is not fit to live in, the court can order that the house be closed until it is fit to live in.
After the court makes an order, the council can go onto the land where the nuisance is. It can do whatever it has to do to fix the problem, and it can get back the cost of doing this from the person named in the court order (s 197).
If the council does not take action within a reasonable time of you having notified it of the nuisance, you can take action under the PHW Act against the person responsible for the nuisance. You have to do this at your own cost at first. If the court agrees with you, you will probably get most of your money back, but if the court doesn’t agree with you, you may have to pay the other person’s costs (s 63).
People who light fires on their properties that spread and damage, destroy or endanger someone else’s property may be committing an offence against the Summary Offences Act 1966 (Vic) (“SO Act”) (s 11). The same applies to people who leave fires on their properties before the fires are completely extinguished.
People are allowed to light fires that might be dangerous if they only burn straw, stubble, grass, weeds or other inflammable material of a limited size, and if they let their neighbours know beforehand.
Before using your incinerator, check with your local council to see if there are any council regulations relating to the lighting of fires and incinerators.
No one is allowed to light a fire while an official fire ban applies. This will usually be during the summer months, and enquiries should be made of local fire authorities before lighting any fires during possible times of increased risk.