Nuisance has been mentioned a number of times so far. The legal meaning of the word is not the same as the ordinary meaning. A nuisance can either be litigated in court under the common law, or it can be dealt with under the Local Government Act 1993 (Tas) (LGA), which gives a solid definition of nuisance. This section deals only with the Local Government Act 1993, as pursuing a nuisance action under common law will most certainly require legal advice, whereas a complaint to council under the LGA can be done by a person online or over the phone. However, the legislation is unclear as to whether a nuisance must cause a harm to the person who brings the nuisance to the attention of council. The standard appears to be the health, safety or welfare of the public.
Under section 199 of the LGA, a nuisance is anything that:
- causes, or is likely to cause, danger or harm to the health, safety or welfare of the public; or
- causes, or is likely to cause, a risk to public health; or
- gives rise to unreasonable or excessive levels of noise or pollution; or
- is, or is likely to be, a fire risk; or
- constitutes an unsightly article or rubbish.
This could include a number of things, such as possible dangers, as well as stored waste, or fuels. The occupier who is harmed by what appears to be a nuisance caused by a neighbouring occupier may do the following:
- Talk to the neighbour directly. Request the neighbour to stop the activity or to take action to prevent the nuisance.
- Take direct action, or self-help. If the thing creating the nuisance extends on to the damaged occupier’s land, the occupier may deal with it there, for example, cutting off an overhanging branch back to the boundary line. If the thing creating the nuisance is mainly on the neighbouring occupier’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.
- Contact Local Council. The Council can issue an abatement notice, and take necessary action to abate the nuisance if the nuisance constitutes an immediate danger to person or property, the person causing the nuisance can’t be found, or the abatement notice has not been complied with (Local Government Act 1993, ss200–203).
- Ask a court for an order. This is called a nuisance order under the Local Government Act 1993 (s201). The court may issue either a nuisance order requiring compliance with an abatement notice issued by Council, or a fine. A nuisance order can require Council or the individual to take action.
Remember, there is no substitute for neighbours talking to each other about their backyard environmental problems in order to achieve a mutually acceptable resolution. Whilst the law may provide remedies to such problems, when the issue has been fought and settled each neighbour must return to their homes and continue to live side by side.