This NSW article is about how to deal with neighbours that are causing nuisance.
Neighbours can be a nuisance.
However, sometimes this nuisance can be more than a mere inconvenience. In such circumstances there are steps (both legal and non-legal) you can take to resolve such interferences. In this article you will find some general advice on how to approach such situations and when you have a good case to pursue legal action.
Criminal Behaviour
It must first be noted that criminal behaviour is its own situation. Should your neighbour be engaged in any such activities you should contact the police, the strata committee, and owners corporation as soon as possible.
Nuisances are Actionable
The first step to dealing with a nuisance is to determine whether you have an ‘actionable’ (i.e., prosecutable) claim at all.
Nuisances are prohibited generally under tort law but in a strata context more specifically under section 153 of the Strata Schemes Management Act 2015 (“SSMA”).
The basic elements for any such claim were outlined by Higgins J in Adams v New South Wales Land & Housing Corporation [2016] NSWCATAP 31. Those being that:
- The plaintiff has a proprietary right to the property in question as either an owner or occupier (e.g., a tenant);
- An interference is caused by the defendant that in some way diminishes the plaintiff’s enjoyment or use of the property; and
- The interference in question must be ‘substantial and unreasonable’ by the standards of a ‘reasonable and ordinary person.’
Note that these elements apply in nuisance claims under both s 153 of the SSMA and general tort law. So, the following advice will apply regardless of whether you live in a strata scheme or not.
If these elements are satisfied an order from the NSW Civil and Administrative Tribunal can be sought against direct ‘creators’ of nuisances, parties authorizing others to create a nuisance (e.g., party guests), and any person who exacerbates or ‘continues’ another’s prior nuisance.
Such orders can prohibit recurrence of the nuisance and enable monetary penalties for violations.
Inconvenience or Nuisance? What Nuisances are “Substantial and Unreasonable”
The final step to determining whether you have a nuisance claim is to investigate element (iii) as set out in the extract from Adams above as what is ‘substantial and unreasonable’ by the standards of an “ordinary” person can be ambiguous.
The basic rule here is that a nuisance must be more than a mere inconvenience. For example, if using a car space allotted to an owner under the by-laws makes it difficult for others to park their own cars this does not constitute a nuisance. To determine whether your complaint is substantial will – if it goes before a court – ultimately be up to the presiding magistrate who will endeavour to balance ‘… the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with … it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.’: Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102 [55] (Suthers PM, Charles SM)
As such – whilst this determination is ultimately left to judicial discretion – it can nevertheless be stated that the more universal a domestic function is, the more likely any interference with said function will constitute an unreasonable “nuisance” by the standard of an ordinary reasonable person. For example, Senior Member Blake commented in The Owners – Strata Plan No. 58615 v Almin [2022] NSWCATCD 91 that if the defendant had been feeding birds on her lot at night-time this would be enough to constitute a nuisance because it would likely cause sleep disruption through noise pollution. Thereby disrupting the sleep that is a universal use of domiciles.
What constitutes a “nuisance” can, therefore, be defined rather liberally.
Responding to a Nuisance – Requests and Letters are the First Recourse; Litigation is the Last
Before discussing legal options, it must be kept in mind that any legal action – in or out of court – will be expensive and risk permanently damaging the relationship with your neighbours. The first action to resolve a nuisance claim should therefore always be to ask for your neighbour to cease their conduct without threatening legal recourse.
Should the troublesome party prove difficult however, some legal action may be required to resolve the issue. Given the expenses involved in making civil claims under either s 153 of the SSMA or tort law before a court, your second recourse should generally be to engage a lawyer to provide detailed advice specific to your situation. A further letter or attempting mediation may be warranted for instance before litigation is needed.
No universal guide to litigation can be created as each case will be unique. However, engaging a solicitor with expertise in nuisance and strata law will help you navigate the procedural and substantive issues involved in this process.
Talk it Out, Keep a “Nuisance Diary”, and Seek Advice
A neighbour’s nuisance can often be a serious imposition on the lives of those around them and may even diminish the value of a property.
However – where possible and safe – you should always seek to resolve a nuisance by talking it out. This will help avoid legal fees and preserve relationships.
If such efforts fail however, seeking legal advice about your prospects and having a letter drafted on your behalf is a good first step.
In addition, if you suspect that you might have a nuisance claim it will be useful to keep a kind of “nuisance diary” listing the (i) interference in question, (ii) frequency of interference, (iii) communications with the party causing the nuisance, (iv) affects of the nuisance upon you (e.g., sleep disruption), and (v) any mitigating step taken or not taken by the party causing the nuisance. In the case that your matter goes to Court such a diary will help to establish your case.
Andrew Fairfield and Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
This post appears in Strata News #711.
This article has been republished with permission from the author and first appeared on the Kerin Benson Lawyer website.
Have a question or something to add to the article? Leave a comment below.
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I live in an Apartment block which has a grassy area right underneath. There is a small community library. Also there is a plan to set up a community garden. There is also a plan to establish a children’s playground for usage by all the children in the complex. There are 144 lots.
As this will be in close proximity to the residents in the building particularly those in the lower floors.
I’m particularly concerned with the inevitable serious noise pollution.
Hi Leo
This video about lobbying may be helpful. If you feel strongly about an upcoming decision in your building, see if you have support from other owners. Exercise your power!
NAT: Level Up Your Strata Game. How To Get What You Want! Strata Lobbying 101