Vegan massage therapist Cilla Carden and her fight against her neighbours over the smell of barbeque and the noise form kids playing basketball has been the talk of the town here and grabbed media attention worldwide.
It has caused many of us to ask the question: “what actually is ‘nuisance’ and what can you or your neighbours lawfully do on their own property?”
Broadly speaking, a nuisance is an unreasonable interference with the use and enjoyment of your neighbour’s land. Typically, this may include loud noises, odours, or excessive light pollution. In such disputes, plaintiffs often seek an injunction to prevent the act from persisting, and possibly damages to remedy the wrong committed against them.
Although publicly derided and made fun of, Ms Carden’s claims do raise questions as to how far the scope for nuisance goes; what unusual circumstances might a court characterise as an act as being a nuisance to neighbours?
How noisy is too noisy?
One of the claims raised by Ms Carden against her neighbours was excessive noise emanating from young children. Although seemingly innocuous, such a claim has been confirmed by courts to be a nuisance. A couple in the UK lost a court dispute with their downstairs neighbour over noise from the wooden floor in their Kensington home. In this case Judge Nicholas Parfitt said the noise of simple ‘day-to-day living’ caused by children running around and dropping things around the house, was ‘sufficiently loud to be invasive and disturbing’. The court awarded the plaintiff over A$190,000 in damages in addition to a staggering over A$1,700,000 in legal fees- a stark warning of how brutal neighbour disputes can become. Instances like this seem to point to a somewhat arbitrary threshold as to what would constitute an interference with the use and enjoyment of land. For example, would it be okay to bounce a basketball against a wall late at night versus after school? Would it be unreasonable to do the vacuuming at midnight on a Monday night?
Closer to home the court has found instances where just noise was enough to constitute a nuisance. In a bitter dispute over noisy floor tiles in a Claremont unit, a respondent was ordered to rectify floor work and upon its completion engage an acoustic expert, at his own cost, to ensure that the level of noise was reduced from roughly 75 decibels to no more than 55 decibels.
How smelly is too smelly?
Ms Carden sought to claim that the meat odour wafting into her yard was causing sufficient discomfort to constitute an act of nuisance. Unpleasant odours are not particularly unusual grounds to be described as nuisance. A local court in Berlin ruled that a woman could no longer smoke on her balcony between 8pm and 6am because the evening cigarettes ‘constituted a very big encroachment on the personal sphere of the neighbours’. This begs the question, what odours would be considered too unreasonable for neighbours to tolerate? In the Berlin case, the sanction to not smoke came with a warning that violation of the court order would result in a potential fine of up to A$400,000 or 6 months in prison.
Where is the limit?
An interesting question arises in neighbourhood disputes; where is the line that the Court says makes an act too unreasonable to tolerate?
An argument can be made that in choosing to live in an area with irritating neighbours, some degree of consent is acknowledged if a disturbance was present prior to moving into the property. What is certain is that every case is unique and should be considered on its facts.
One difficulty that arises in strata disputes involving damaged property is in distinguishing whether the property is common property or non-common property. Each state has different methods of determining how property is characterised, with WA being no exception. Disputes regarding common property are usually taken up with Strata managers, and if unresolved, can be pursued through the State Tribunal. Non-common property however, is assumed to be the responsibility of a property owner who assumes the cost of repair.
No laughing matter
With neighbourhood disputes becoming more common, what might be considered satirical, may in fact have significant legal ramifications. Perhaps the best advice might simply be to try and love thy neighbour – we all have to ensure some types of restriction when we live in close proximity with each other – but if things escalate and you absolutely can’t endure it then know that there are avenues and remedies. But as in all litigation, be careful of the potential risk and costs of heading straight to Court.