NSW: What is a Nuisance?

This article defining a nuisance in strata has been supplied by Jasmin H.Singh and Allison Benson, Kerin Benson Lawyers.

The Strata Schemes Management Act 2015 requires, at section 153, that lot owners and occupants must not cause a nuisance. But, what is a nuisance and when does annoying behaviour cross the line into constituting an actionable nuisance? A nuisance could be created by noise, by smoke drift or offensive or harmful smells or by the obstruction of common property such as parking in a way that affects the use of another person’s car space or the common property.

The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134 provides some clarity on the definition of nuisance and the test to establish an actionable nuisance.

The Owners Corporation claimed Mr Veney’s use of his parking space meant other parking spaces were difficult to access. A special by-law gave Mr Veney’s lot exclusive use of part of common property for parking. The Owners Corporation argued that the right to park on common property given in the special by-law was in exchange for the right to use the lot car space (the Court ultimately disagreed with this). However, the special by-law did not contain any terms to this effect. Among the Owners Corporations claims was that Mr Veney’s use of his parking lot was an actionable nuisance pursuant to section 153(1)(a) of the Strata Schemes Management Act 2015.

The Court dismissed the claim of actionable nuisance and stated the following:

1. The mere causing of some inconvenience is not necessarily an actionable nuisance.
2. In broad terms, an actionable nuisance can be described as unlawful interference with a person’s use or enjoyment of land, or of some right over or in connection with the land. Liability is founded upon a state of affairs created, adopted or continued by a person, otherwise than in the reasonable and convenient use of the person’s own land, which, to a substantial degree, harms another owner or occupier of land in the enjoyment of that person’s land (Hargrave v Goldman (1963) 110 CLR 40).
3. In Elston v Dore (1982) 149 CLR 480, it was stated that in most cases the proper test to apply in determining whether a nuisance has been committed is as put by Lord Wright in Sedleigh-Denfield v O’Callaghan [1940] AC 880:
   
   ‘A balance has to be maintained between 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 is impossible to give any precise or universal formula, but 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.’
4. Where nuisance is not defined for the purposes of section 153 of the Strata Schemes Management Act 2015, it should be interpreted in accordance with the common law meaning of an actionable nuisance.

The Court further found that although Mr Veney’s conduct in exercising his right to park his vehicle in his parking lot caused inconvenience to certain occupiers, the inconvenience was also contributed to by the maintenance of the common property garden area. The Court considered that since lot owners have a right to use the common property to gain reasonable access to their parking lots, but do not have a right to use Mr Veney’s parking lot to do this, it was reasonable to conclude that the garden was the actual obstacle to the lot owners enjoying their rights. In considering the whole of the strata scheme’s circumstances, the Court found that Mr Veney’s use of his parking lot should not be regarded as amounting to an unreasonable interference with the rights of other owners or occupiers of lots in the strata scheme.

The key lesson in the case is that not every inconvenience amounts to an actionable nuisance. This is especially so in the context of a strata scheme, where its occupants can be made up of many people. There are bound to be inconveniences and annoyances, but not all of these irritations will amount to an actionable nuisance.

Please note: This is general information and should not be considered to be legal advice. If you are affected you should obtain legal advice specific to your individual situation.

Jasmin H.Singh and Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990

This post appears in Strata News #477.

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Read next:

• NSW: Q&A Light Shining Into the Apartment Causing Nuisance
• NSW: Invasion of Privacy by CCTV Cameras
• NSW: Q&A Which ByLaws Apply to Our Strata Scheme?

This article has been republished with permission from the author and first appeared on the Thoughts from a Strata Lawyer website.

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