Nuisance and defences Chapter 8.4.

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Presentation transcript:

Nuisance and defences Chapter 8.4

What makes a nuisance? What type of nuisance can prevent a person enjoying his or her property?

What nuisance neighbour story can you share?

http://www. heraldsun. com http://www.heraldsun.com.au/news/law-order/nude-nuisance- avoids-conviction-over-cairns-neighbourbood-dispute/story- fnat79vb-1226533973004

Private nuisance dispute between neighbours. The law tries to strike a balance between the conflicting rights of a person to the reasonable enjoyment of a property and the right of neighbours to use their property how they wish. Sometimes that balance is not reached and the plaintiff claims that rights have been infringed. To succeed in an action for private nuisance the plaintiff must prove, on the balance of probabilities: the existence of a nuisance that interferes with enjoyment of property that the nuisance was unreasonable in the circumstances damage was caused by the nuisance.

Read the case Seidler v. Luna Park Reserve Trust (SC) (NSW) 1995 (Luna Park was built in 1935)

Proving private nuisance The nuisance must be substantial in order to be actionable. A trivial nuisance is not unlawful. The nuisance must be unreasonable. The time of day, the frequency of the nuisance, how long it lasts and the character of the neighbourhood may all be relevant factors when determining if an action is unreasonable the plaintiff must prove that damage was suffered. The type of damage suffered can vary depending on the circumstances of the case.

Defences to private nuisance The defendant may be able to defend an action by claiming that: the interference suffered is trivial, not substantial the interference is not unreasonable in the circumstances the plaintiff did not suffer any damage. A defendant cannot argue that the plaintiff chose to come to the nuisance by, eg, moving next door to a cricket club then building near the clubrooms. Defendant can also argue that legislation exists authorising the activity that is causing the nuisance. Eg an airport

Public Nuisance Aim is to protect the general public from public disturbances Plaintiff must show they were mostly affected than other general public Eg blocking public road, nuisance in a children’s park Most public nuisance cases have become criminal actions as the law tries to protect the community in public places (parks, highways, rivers, oceans)

Your turn Complete; Test your understanding 1-4 Apply your understanding 5 Extension optional activity 7