A legal nuisance involves a substantial, unreasonable and repeated or ongoing interference with the use or enjoyment of a neighbour's land (examples include smoke, smells, noise and overhanging trees).
It is for the court to decide what is substantial and unreasonable and this will often depend on the nature of the local area. For example, noisy or smelly factories will not normally be regarded as causing a nuisance if they are sited in industrial areas. Nor will it be a nuisance if the occupier who suffers the damage has put up with it without complaint for a long time, or if the occupier suffered the damage because of an unusual sensitivity (for example, unusually delicate plants). Public authorities may sometimes be allowed to cause a nuisance in the course of necessary work they perform.
The occupier who complains of what appears to be a nuisance caused by a neighbour may:
- ask the neighbour to stop the activity, or take action to prevent the nuisance
- contact a Community Mediation Service
- take direct action. If whatever causes the nuisance comes over the boundary, the occupier can remove it, for example, cutting an overhanging branch back to the boundary line. If the cause of the nuisance is mainly on the neighbour's land, the occupier may go on to the neighbour's land (only with permission) and do no more than is reasonably necessary to stop the nuisance (great care must be taken to limit what is actually done). Legal advice should be sought in advance.
- apply to a court for an order to stop the nuisance injunction or an order that the neighbour pay compensation (damages). Where there is a nuisance, the Magistrates Court can grant injunctions. However, legal advice should be obtained about what other remedies may be available.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.