Hi, welcome to the Australian Law Students Law Infor podcast, your go-to source for legal
insights in four minutes or less. I'm Nick Hodgkinson, and today we're talking about
private nuisance. But first, our obligatory disclaimer, the Law Infor 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 our website
at 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 sue, and the law student.
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 over-the-topness of land must be considered.
Intangible interferences are found applying the give-or-take test from Munro 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 can be considered.
The court in this test will consider factors like locality, duration, time, frequency,
extent, and the purpose and utility of the interference. The first is the failure to
identify or enforce wrongdoing, which in this case, simply means that the defendant was
not aware of the interference. It involves the defendant's own knowledge of the violence
that the defendant is buing and their connection to it. The fault can be established if the
defendant created, authorized, continued, or adopted the nuisance. For 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 measure duty of care is defined in this case. Let's first consider
measured duty of care involves assessing the reasonableness of actions to prevent or minimise
the nuisance, considering factors like cost, difficulty and time available. At this stage,
a defendant can employ certain defences to escape liability. These defences include the plaintiff
consenting to the nuisance or legislative authorisation. Legislative authorisation does
not apply if the defendant could reasonably have carried out the authorised 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 4 podcast. As always, if you have any suggestions,
please email us at lawin4podcast.com.
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