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Neighbours
What is Nuisance?
Nuisance has a much more exact meaning that is used generally in the community. At law, nuisance consists of Public Nuisance and Private Nuisance.
Public Nuisance concerns obstruction, inconvenience or damage to citizens as members of the public in the exercise of their public right. Public nuisance is a criminal offence, and an individual cannot recover compensation for loss as a result of public nuisance unless they can show that they have suffered damage greater than that suffered by the general public. Eg. Obstructing a highway is a public nuisance. The owner of a house that adjoins the highway, whose access is obstructed, can probably exercise a number of legal remedies denied by the rest of the public.
Private Nuisance is the unlawful interference with a persons use or enjoyment of land or of a right in connection with the land. Interference can be either direct or indirect but damage must be proved. The occupier of land is entitled to reasonable use and enjoyment of the property and freedom from interference by such things as noise, smells, smoke, vibrations, dust or reasonable fear of one's safety. (Aerial spraying or adjacent rifle range activities are examples of the latter.)
The right to the law of nuisance is restricted to the person in actual occupation of the land, that is, not the owner of the land if the property is rented, and not the relatives of the occupier. The person who causes the nuisance is the one who creates it. An occupier may be personally liable if they knew of the nuisance and did nothing to prevent it. Eg. Trees in a dangerous condition which the occupier won't remove, or friends of the occupiers children who regularly attend for band practice.
The local authority by-laws and the police can help in isolated instances. We are able to advise you of your options, and assist in seeking a solution without the expense of court action.
Trees
While the law is clear on trees, neighbours frequently disagree. It is a nuisance where there are overhanging branches or intruding roots from the adjoining occupiers trees over, onto or under the occupier's land. In these cases it is the owner of the land upon which the trees are planted who would normally be liable for the damage caused rather than the occupier. The occupier would only be liable normally if they planted the offending trees.
Remedies for Nuisance
• Self Help - A person is entitled to remove the nuisance by, for example, cutting back the branches of the trees or digging the roots to the boundary of his or her land. The owner is considered to own the wood cut and fruit cut from protruding branches, and these are usually returned by putting them over the fence on his or her land.
• A court injunction - An order from the court requiring the offending party to refrain from continuing the actions constituting the nuisance.
• Common Law actions for damages.
• Other remedies exist via the police
Fences
A person can erect a fence upon his or her land without the consent of any neighbour. Such a fence should not be on the boundary, but inside it to prevent any dispute as to ownership, liability for injury caused by the fence, and possible trespassing in its construction.
The Dividing Fences Act (Qld) sets out the law. Before a neighbour is required to contribute towards the cost of the fence, the provisions of the act must be followed. One of these provisions requires a written notice to all parties advising details of the construction and seeking approval prior to any work being done. If work is completed prior to approval being sought by all parties, the other parties have no obligation to contribute towards costs.
Disputes arise:
• as to the location of the boundary;
• as to the type of fence to be constructed;
• as to the most reasonable cost of construction of that fence;
• and as to the cost of repair of an existing fence.
These are frequent complaints by neighbours, and we can assist you. Seek advice before you agree to incur any expense.
We can advise you further on the alternatives open to you or make recommendations to assist you here.
Peace Complaints
Peace and Good Behaviour Act (Qld) provides a remedy for people who are threatened with assault or property damage.
We can assist you if you or your property is threatened or damaged by another.
We can advise you further on the alternatives open to you or make.
Entry onto Land
Trespass
Trespass is a civil Wrong. It is not a criminal offence. It involves a direct interference with the 'possession' of land, and is wrong regardless of whether or not there was an intention to trespass. The most common form of trespass to land in entering or remaining on it without the permission of the owner. Another is dumping rubbish.
It is a separate offence, which the police will prosecute, for a person to be in or on a premises without a lawful excuse.
The law give police wide powers to enter premises. Gas and Electricity authorities are examples of others who may be specifically authorised by law to enter the premises without being liable in trespass.
Defences to Trespass
• Authorised by law (a police officer entering under some legal power, or a bailiff in the course of duty);
• Abaitment of a nuisance (entering onto land to attempt to control a fire);
• Permission given by the person in possession.
Remedies to Trespass
• Ejectment, using sufficient force only. Care should be taken here because greater force than is reasonable is an assault on the trespasser.
• Peaceful re-entry, where a person entitled to possession of land reenters without violence.
• Injunction, to restrain a continuing trespass or prevent a threatened trespass
• Action for ejectment by means of a Supreme Court writ of possession
• Action for damages. That is compensation. For an isolated instance, the occupier is advised to contact the police and have them remove the trespasser. Continuing or repeated trespass requires court action.
We can advise you further on the alternatives open to you or make recommendations to assist you here. |
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Phone
07 4923 5400
Fax
07 4926 1835
Email
admin@colinfleming.com.au
Address
QTV House.
1 Aquatic Place
North Rockhampton QLD 4701
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