Generally, a person can do whatever he chooses on his land provided it is lawful and it does not unlawfully interfere with someone else’s use and enjoyment of their land. However, a balance must be maintained between the competing interests of the parties.

If someone deliberately does something on the land which they own or occupy, and it unreasonably interferes with another person’s use and enjoyment of their land, the affected person may have a claim based on private nuisance.

Private nuisance can occur through material physical damage to another person’s land, such as fire, flood or an encroachment; or it can occur through interference with the use and enjoyment of land, such as noise or odours.

To bring a claim based on private nuisance, a person must prove:

1. He owns or has a right to occupy the land that is being interfered with.

2. The interference with his use and enjoyment is caused by an act of the other party. An act may also include not doing something when it would be reasonable for the other person to do something to avoid the interference, such as extinguishing a fire that started naturally or taking steps to avoid flooding.

3. The interference must be substantial and unreasonable.

The other party will be liable if:

1. He knew or should have known about the nuisance.

2. The interference to the other person’s land was reasonably foreseeable.

3. He did not take reasonable steps to end the nuisance.

In a recent decision in the NSW Supreme Court, a landowner asked the Court to make an order that his neighbour and the Council carry out all necessary works to remove a large boulder that was overhanging his land. Two thirds of the boulder was on his neighbour’s land and one third was on a Council reserve. When the landowner purchased his land, he was aware of the boulder and was uncomfortable about it. He obtained expert reports that said the boulder would not fall onto his land. However, when he tried to sell his land many years later, another expert provided a report that the risk of the boulder falling was unacceptable, even though it may be hundreds of years before that might occur.

The Supreme Court held there was no doubt that the overhanging boulder posed a risk of substantial damage and that it should be removed. The cost of removal the boulder ranged between $264,550 to $683,650.

For more than 50 years, the law has been that there is a general duty of care to remove a hazard, whether caused artificially or naturally, so that it does not harm a neighbour. The duty of care is based on what is reasonable to expect of the person based on their individual circumstances.

The judge said that the neighbour would be expected to remove the boulder if it could easily be removed without incurring substantial expense.

On the facts before the Court, it was held that it would be unreasonable to expect the neighbour and the Council to remove the boulder because they did not contribute to the state of affairs, the work would impose significant hardship on the neighbour and the complaining landowner, who could afford to pay for the removal, did not offer to make any contribution to the cost.

The Court said it would be sufficient for the neighbour and the Council to allow the complaining landowner access to the neighbour and Council’s land to carry out the work himself provided he gives sufficient notice.