Noise nuisance


Once regarded as a languishing remedy, the law of nuisance is experiencing a resurgence. It offers opportunity to obtain redress for environmental and climate change loss and damage.

Disturbing noise can arise in many different contexts, at industrial-residential interfaces, from traffic and freeway noise, the noise of windfarm blades, barking dogs, live music venues, and train intersection signals.

What is a nuisance?

Nuisance is a substantial and unreasonable interference with the right to the use and enjoyment of land. The interference may be either direct or indirect. It includes both physical interference with land and interference with its use.

A classic legal description of nuisance is:

an inconvenience materially interfering with the comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions.[i]

To establish nuisance, there must be evidence that the defendant either:

  1. created the nuisance;
  2. permitted it to arise by failing to exercise reasonable care;
  3. continued or adopted the nuisance; or
  4. negligently failed to abate the nuisance.[ii]

The presence of other nuisances will not justify the noise nuisance.[iii] For example, an unpleasant odour along with noise nuisance will not justify avoidance of liability for the noise nuisance.

Nuisance does not require proof of ‘but for’ causation. The claimant does not have to show that ‘but for’ the defendant’s noise, it would have experienced no loss. It suffices that the defendant was one of several causes for the interference with freedom from noise nuisance.  A defendant can be held liable where its individual conduct would not, in itself alone, have constituted an interference with rights causing a nuisance. Everyone who contributes to a nuisance is potentially individually liable, if in the aggregate a nuisance is proved.  It is no answer to a complaint of nuisance that a great many others are committing similar acts of nuisance. Each and every one causing a nuisance is exposed to separate legal action and can be restrained from continuing its land use.

The court of equity will issue injunctive relief where the nature of the injury is such that it cannot be compensated by damages.

Two types of nuisance

There are also two types of nuisance – a private nuisance and a public nuisance.

Public nuisance

A public nuisance arises from an ‘injury to the public as a whole caused by way of an interference with some or other public right.[iv]

There are two legal components – an act or omission and its effect. In summary, there must be:

  1. an act not warranted by law; or
  2. a failure to discharge a legal duty;

and the effect of the act or omission must be to:

  • endanger the life, health, property, morals, or comfort of the public; or
  • obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.[v]

Contemporary climate change and environmental lawyers are rethinking the law of public nuisance as a circuit-breaker to causation problems in negligence actions against polluters. Negligence cases require proof that the defendant’s actions, even where clearly negligent, actually caused the loss suffered by the plaintiff. In other words, that ‘but for’ the defendant’s negligence, the plaintiff would not have suffered loss. Where there are multiple potential causors, as occurs frequently in environmental and climate change cases, a case against one negligent causor alone is likely to fail.

A private party can take action concerning a public nuisance action but must establish that he, she or it experiences a special injury or special damage over and above that suffered by the public.[vi]

Alternatively, a private party may obtain what is called a fiat, from the Attorney-General. Frequently, the Attorney-General will not grant a fiat for a variety of political reasons.

So, generally, a private individual seeking redress for a public nuisance must identify special damage in order to successfully stop the nuisance.

The reason for this is that the law anticipates that the use of a common resource which is protected by a public right (e.g. use of a road) does not amount to an actionable wrong.  For example, in the case of a road, each person has a right to pass and repass on that road – and is assumed to be causing no nuisance in doing so.

A private party may establish special damage by evidence of personal injury, property damage, loss of custom, depreciation of property value, delay and an inconvenience of a non-trivial and personal nature[vii]

A not-for-profit organization whose objects confirm that its purpose is to address matters related to nuisance may be found to have a special interest[viii]as do Aboriginal People in respect of their Country[ix]

Private Nuisance

The more traditional nuisance claim involves a private nuisance. A private nuisance claim requires proof of interference with a right in land. Private nuisance cannot assist with interference of other rights that are not land rights, e.g. a tradeable water right.

The claimant must prove either actual harm and damage to land (direct) or, at least, actual interference with use and enjoyment of land (indirect/intangible).[x]

Where the claim is based on substantial interference with land enjoyment, rather than physical damage, liability turns on the reasonableness of the activity causing the nuisance. Where there is actual damage to land, reasonableness may be a less important issue.  The impact of noise can range from discomfort and irritation through sleep loss, dangerous health effects and acute psychological distress.

A court may grant an injunction to restrain an ongoing nuisance. It may also award damages for losses arising from a reasonably foreseeable harm caused by the defendant’s activity.

Self-help – And Legal Remedies

Self-help is recognized as acceptable by the Courts in seeking to end a nuisance, but great care is needed to ensure that self–help action is reasonable in all the circumstances and only what is necessary – and no more.

Self-help may permit entry onto the land of the party causing the nuisance, but only where there are strong reasons or imminent danger to life or health. Usually, prior notice is required.

Where alternative remedies exist, e.g. injunction or damages, the law will not allow self-help with force no matter how well founded the right.[xi]  Courts generally prefer legal action, rather than self-help and tend to find that the self-help action was high-handed.[xii]

Proof of possession, reasonableness of force and the elements of a nuisance may be required to be evidenced later where self-help is used. The costs of the self-help are generally not recoverable unless subsequently shown to have mitigated losses that the affected person would otherwise have incurred.[xiii]

Changing Land Use

Where a landowner, business or developer proposes a new (or intensified) use, the courts treat the new project as an agent of change.

In 2022, the Victorian Government instituted specific ‘agent of change’ controls in Victorian Planning Schemes.  These controls place the onus on new noise-creating projects to specifically address the new noise issues they will create.  Kellehers produced a Live Music Checklist to assist our clients avoid noise disputes and focus on areas requiring legal advice.

The Kellehers Checklist is useful for all potential noise nuisance issues, not just live music venues. Our commercial clients use it where new residential neighbours move in and begin to express sensitivity to their long-term industrial operations.

Cameron Algie, B.A., B.Mus., L.L.B.(Hons)
Dr Leonie Kelleher OAM, BA LLB DipTRP MEI PhD


Copyright © Kellehers Australia 2024.

Liability limited by a Scheme approved under Professional Standards Legislation.

[i] Walter v Selfe [1851] Eng R 335, (1851) 4 DeG & Sm 315, 322.

[ii] Halsbury’s Laws of Australia, Tort, ‘B Private Nuisance’.

[iii] R v Neil (1826) 2 Car & P 485, 172 ER 219, 485.

[iv] Murphy, J.J., 2010, The Law of Nuisance, Oxford University Press,138.

[v] R v Rimmington [2005] UKHL 63, [2006] 1 AC 459, [10] referring to Archbold Criminal Pleading, Evidence and Practice of the crime of public nuisance.

[vi] The principle began from English law of 1590s (Williams Case (1592) 5 Co Rep 72a, 77 ER 163, 73a – which concerned obstruction of a public highway)

[vii] Walsh v Ervin [1952] VLR 361, 367.

[viii] Australian Conservation Foundation v Commonwealth [1980] HCA 53; 146 CLR 493; 54 ALJR 176; 28 ALR 257; 45 LGERA 245; 45 LGRA 245.

[ix] Onus v Alcoa of Australia 149 CLR 27. Note however, the 2020 New Zealand case that rejected as special injury, the losses suffered by a Maori elder for inundation of his coastal country by rising sea levels due to climate change (Smith v Fonterra Co-operative Group Ltd [2020] NZHC 419, [2020] 2 NZLR 394, [60].  

[x] Hunter v Canary Wharf Ltd [1997] 2 All ER 426. 

[xi] R v Macarthur [1828] NSWSupC 6 (31 March 1828).

[xii] Lagan Navigation Co v Lambeg Bleaching, Dyeing & Finishing Co Ltd [1927] AC 226, 244-245.

[xiii] Young v Wheeler [1987] Aust Torts Reports 80-126, 68, 971, Proprietors of Strata Plan No 14198 v Cowell [1991] 24 NSWLR 478, 487. Where self-help has not occurred, damages in nuisance may include the cost of removing the nuisance, with any harm suffered before abatement likely also recoverable City of Richmond v Scantelbury [1991] 2 VR 38.