Last updated 26 September 2024

Generally, nuisance is covered by common law but a variety of Acts of parliament and local (council) laws deal with some specific situations of nuisance (statutory nuisance).

It is recommended that people affected by nuisance speak to their local council, police or seek legal advice before taking action. To support their case, it is advisable for a person who believes that there is an unreasonable interference with the enjoyment of their land to document the situation contemporaneously, such as noting dates and times when this occurred, and attempts that have been made to resolve the matter with the other party.

Statutory nuisance laws

Local governments are responsible for investigating and dealing with nuisance complaints relating to residential premises, provided that there is a local or state law in place about the issue.

Complaints relating to contaminants released into the environment by activities such as mining or manufacturing may be dealt with by the Department of Environment, Science and Innovation.

Difficulties can arise where residences are used as businesses (e.g. the parking or repair of large trucks on acreage). As suburban areas are spreading in South East Queensland, some residential development is occurring next to industrial estates or livestock activities. The industrial activity is usually pre-existing and often subject to relevant approvals. In such circumstances, residents may have to accept living with some of the consequences of the industrial activity (e.g. noise in the early hours or odour).

The nuisance laws are complaint driven, which means a complaint must be made before a problem will be investigated. If a person making a complaint is concerned about protecting their identity, it is necessary to check with the complaint-handling body whether particular details of the complaint will be disclosed to the person or company being complained about.

Breaches of nuisance laws may result in penalties including warning notices, abatement notices and fines. If a notice or fine is issued to a person, they will normally have a right to appeal.

To lodge a complaint, a person should call the relevant local council for residential premises issues and the Department of Environment, Science and Innovation for activities associated with mining or manufacturing.

If there is no relevant authority or the relevant authority cannot provide the assistance required, a person affected by nuisance may choose to pursue their own legal action against the person or organisation causing the nuisance. This is normally a common law nuisance action.

It is always prudent to check with the local council and/or the Department of Environment, Science and Innovation before legal action is undertaken. Making a complaint is normally free but legal action is not. Generally, each council has a different set of local laws. Even if a type of nuisance is not discussed below, it is important to consult the local authority before deciding whether or not to pursue legal action.

Common law actions in nuisance

In addition to penalties for breaches of nuisance laws, a nuisance may give rise to a right to sue a person causing a nuisance if an activity is a substantial and unreasonable interference with the use and enjoyment of land. The person who legally occupies the land is usually the only person who can sue.

A person who creates a nuisance or, in some cases, a person who knows about the nuisance but does nothing to stop it, or does not take sufficient steps to minimise or prevent it, can be sued. A person bringing a nuisance action can ask the court to make orders to stop the nuisance and prevent it from occurring in the future (an injunction), and perhaps compensate the person for any loss or arm they have already suffered (damages). Where an injunction is sought, proceedings must be commenced in the District or Supreme Court. This carries the risk that if proceedings are not successful, the person bringing the action can be ordered to pay towards the legal costs of the person who was sued (a costs order). These costs can be significant and legal advice should be sought before commencing this sort of legal action.