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46 Money St
Perth, WA, 6000
Australia

+61 8 6460 5179

Planning and Environment Law Firm Perth. 

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Snapshot on nuisance: an essential ancient law in modern times

Angus McLeod

What is a nuisance?

Nuisance is an area of tort law consisting of private nuisance and public nuisance.  A private nuisance is a tort arising from the substantial interference with the enjoyment of someone’s interest in land.  A public nuisance involves an interference with public rights affecting the public or a broader class of persons and is a crime as well as a tort.

Origin of nuisance

The law of nuisance in Australia originates from 12th century England where nuisance, known as nocumentum, developed alongside the law relating to public thoroughfares, which was introduced to England by Roman law.  Subsequently, among lesser-known examples, the Magna Carta provided for the removal of nuisances that obstructed public rights of way. 

Since then, a lot has changed.  However, the fundamental principles of the law of nuisance have been settled in Australia and in England since the end of the 19th Century.

How does it work with other laws?

Modern planning and environmental laws, as well as various other public laws, carry the batten from nuisance to a considerable degree.  However, those laws do not replace nuisance and in many instances are incapable of preventing a person from protecting their interests by carrying out an action in nuisance.

Current status and recent developments

Elsewhere on this website, we have discussed the contemporary application of the law of nuisance in a number of contexts and by reference to the decisions of Barr & Ors v Bifffa Waste Services Limited [2012] EWCA Civ 312 (resident action against odour emanating from a waste plant) and Marsh v Baxter [2014] WASC 187 (financial loss suffered by non-GM crop grower after GM canola blew onto their land). 

What is the future for nuisance?

The categories of nuisance are not closed and nuisance is continually being expanded and refined in interesting ways in common law countries internationally.  In the absence of civil liability legislative changes, we expect this trend to remain.

We continue to be instructed on a number of nuisance matters arising from land use conflicts.