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Nuisance – Unreasonable Interference with Use and Enjoyment of your Property

29 November 2023

A legal nuisance refers to a situation where an individual or entity engages in activities or behaviours that interfere with the use and enjoyment of another person's property or their right to live in a peaceful and healthy environment. The action for private nuisance protects a person’s right to the “use or enjoyment of an interest in land, or of some right over or in connection with it”.

Some common examples of private nuisances in New Zealand might include:
• excessive noise: such as loud music, machinery, or construction work that disrupts a neighbour's peace and quiet
• overhanging branches or encroaching structures: trees or buildings on one person's land extending onto another person's property
• pollution: contaminated runoff from one property affecting the water quality of a neighbouring stream or river; or
• offensive odours: odours emanating from a nearby factory, landfill, or agricultural operation that impact neighbouring properties.

Whereas trespass to land is confined to intrusions upon land that follow directly upon the defendant’s act, the tort of private nuisance provides a remedy in respect of indirect or consequential interference with land. In addition, while trespass to land is actionable per se without proof of damage, nuisance, as an action on the case, requires proof of actual or imminent harm. Private nuisance is defined as a recurrent or persistent activity or state of affairs causing a substantial and unreasonable interference with the claimant’s land, or with their use or enjoyment of that land.

In order to constitute an actionable nuisance, the interference with the plaintiff’s use and enjoyment of land must be substantial and unreasonable. Almost all human activity involves some risk of harm, discomfort, or annoyance to others, and everyone must put up with a certain level of such interference as a normal and accepted incident of living in an organised society in close proximity to others. The function of the tort of private nuisance is to strike a fair and workable balance between the conflicting claims of neighbouring occupiers of land, “each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interest of the other”.

The appropriate balance is struck by reference to the standard of “unreasonableness”. Sometimes, this standard is expressed as a principle of “reasonable user”, which emphasises the right of every occupier to put land to any ordinary and reasonable use, having due regard to the fact that there is a neighbour, and asks whether the defendant has abused or exceeded that right. More often, it is expressed in terms of the neighbour’s right to be free from an unreasonable level of interference with the protected interest in the use and enjoyment of land. The court asks whether the interference suffered exceeds what a normal occupier in the plaintiff’s position could reasonably be expected to tolerate.

The right to the beneficial use and enjoyment of land is an expansive one; therefore, actionable harm takes a wide variety of forms. It may consist of encroachments from the defendant’s land, as where tree branches overhang neighbouring land or tree roots grow into a neighbour’s soil. Physical damage to the land itself, or to plants growing on the land, or to buildings and structures on the land obviously interferes with the occupier’s right to use and enjoy their land and qualifies as actionable harm. Causing an occupier to suffer personal discomfort from smells, smoke, or noise may also constitute an actionable nuisance. Private nuisance covers a wide range of harms, but the key unifying feature of the tort resides in the general kind of harm that is caused rather than any particular class of conduct.

To establish a legal nuisance claim in New Zealand, the following elements generally need to be proven:
• interference: the activity or condition in question must interfere with the use and enjoyment of the affected property or affect a significant number of people
• unreasonableness: the interference must be unreasonable, meaning that a reasonable person would find it objectionable or intolerable under the circumstances
• causation: the defendant's actions or negligence must be the direct cause of the nuisance; and
• damage or harm: there should be actual harm, loss, or damage suffered by the affected party.

Remedies for nuisances in New Zealand can include:
• an injunction: court order to stop the offending activity or condition
• damages: compensation for any harm or loss suffered by the affected party; and/or
• abatement: the removal or elimination of the nuisance by the responsible party.

If you believe you are experiencing a legal nuisance or are accused of causing one, we advise you to consult with a lawyer who can provide guidance and assistance based on the specific circumstances of your case.

For more information, please contact Brett Vautier, Mitch Singh, Paul McKendrick, or Paul Kim.