Following on from our article about what constitutes a nuisance, which can be read here, this article discusses common forms of nuisance that occur in strata schemes being second-hand smoke, light, and noise intrusions from neighbouring properties.
Smoke Penetration
Second-hand smoke penetration from the cigarettes, e-cigarettes, vapes, and the other like items of your neighbours is highly likely to constitute an actionable nuisance so long as the interference in question is not merely the smell of cigarettes.
The reason for this is that the law permits smoking on private property and so smokers are entitled to use their premises for this purpose.
Mere transient smell aside, second-hand smoke is likely to constitute a nuisance if the smoking in question is (i) a frequent occurrence, and (ii) no other steps can be taken to mitigate the smoke-penetration. For example, in Shaw v Euen [2023] NSWCATCD 68 the Court ordered a smoker to cease smoking in his lot’s courtyard because the area was close enough to the plaintiff neighbour’s property that any amount of smoking was liable to penetrate their lot.
Assuming these two aspects, second-hand smoke will constitute a nuisance by reason of the well-established risks to respiratory health. This is so even if no by-laws prohibit smoke penetration from neighbouring lots. In such circumstances, a court can even order neighbours to cease smoking in areas typically used for smoking like a balcony.
Light Intrusion
Light intrusions into your property will generally not be actionable merely because light is inconveniently cast into your property.
However, in Raciti v Hughes (1995) 7 BPR 14,837 the plaintiffs successfully argued before the NSW Supreme Court a case of nuisance based on light pollution/interference. In this case, the defendant neighbour installed a CCTV security system that was activated by movement. When activated, it turned on a bright light that pointed directly into the plaintiff’s backyard. Young J found this was enough of an inconvenience to constitute a nuisance because this caused sleep disruption. As such, the illumination materially disrupted the ordinary use of a domicile in an unreasonable manner.
This finding was well-founded as any interference causing sleep-deprivation is likely to constitute an actionable nuisance. For example, in Munroe v Southern Dairies [1955] VLR 332 where the plaintiff alleged nuisance related to noise, smell and flies occasioned by the keeping of horses on the defendant’s premises to run milk distribution business. The Court held this to be an actionable nuisance in a suburban setting because it disrupted sleep. That sleep-disruption is likely to constitutes a nuisance is further supported by the commentary of Senior Member Blake in The Owners – Strata Plan No. 58615 v Almin [2022] NSWCATCD 91 where he found had the defendant been feeding birds on her lot at nighttime; this would be enough to constitute a nuisance because it would likely cause sleep disruption through noise pollution.
As such – if the light intrusion in question is causing disruption to your sleep – you may well have a claim in nuisance.
Noise Complaints
Noise from neighbours is an inherent part of living in proximity to others.
As such to establish a noise nuisance requires for the interference to your life to be abnormal in that it is beyond the scope of noise or frequency common to residential areas. For a negative example, in Vojkovic v Savva [2023] NSWCATCD 141 a dog barking on five occasions over seven months was found to not constitute a nuisance as this is an expected part of living within a residential area. Likewise, power tools being used in the early or late hours of the day does not constitute a nuisance as crafting activities are a typical within of domestic premises.
It is therefore often difficult to establish that noise-intrusions are nuisances as the scope of noises expected from neighbours within residential areas is quite wide. As such the occasional party by your neighbour is unlikely to constitute an actionable nuisance. But if they do it every night for months this could become abnormal enough to justify a claim.
It is worth reiterating however that an intentionally created noise interference will almost certainly constitute an actionable nuisance.
If you think you may have a claim we encourage you first to try to talk the issue over with your neighbour and if that does not work seek legal advice.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
Authors: Andrew Fairfield & Allison Benson