An inconvenient truth: difficulties defendants face in avoiding liability in private nuisance
In Enkelmman v Stewart,[1] the Queensland Court of Appeal has demonstrated the difficulties defendants will face in the wake of Hunt Leather in avoiding liability in private nuisance where their own use of land causes substantial interference with their neighbour’s enjoyment of land.
Private nuisance: High Court principles
We recently reported on the High Court’s long-awaited decision outlining the principles for the tort of private nuisance in Hunt Leather Pty Ltd v Transport for NSW. [2]
In essence, there will be a prima facie nuisance where a defendant has created a ‘substantial interference’ with a plaintiff’s ordinary enjoyment of land. Once that substantial interference and causation is proven, the defendant will be liable in private nuisance unless it can prove that it has a ‘lawful ground of justification or excuse’ for creating the nuisance. This two part test requires the defendant to prove that:
- its use of land giving rise to the substantial interference with the plaintiff’s land was for a purpose that is ‘common and ordinary;’ and
- the manner of its use of land was ‘conveniently done’ .
The ‘conveniently done’ test requires consideration ‘not merely of the convenience to the defendant, but also the convenience of the plaintiff.' [3]
Enkelmman v Stewart [2026] QCA 67
The Queensland Court of Appeal has now provided further consideration of the scope and application of these principles.
The appellant was a farmer who built a temporary levee on his property to prevent water from entering it. However, in doing so, the levee had the effect of redirecting water back onto the property of the respondent neighbour.
Substantial interference
The Court of Appeal explained at that the ‘substantial interference’ test is a question of fact. It involves a qualitative assessment that an affected plaintiff can satisfy ‘without requiring proof of impact in terms of quantified revenue or profit impacts for commercial properties.' [4]
In this instance, there was physical interference with the respondent’s land by way of erosion of soils and deposition of silt, which occurred over a number of years. Accordingly, the Court was satisfied that the appellant’s levee had caused substantial interference with the respondent’s enjoyment of land.
Lawful excuse: conveniently done?
Applying the two step test in considering whether the appellant had legal justification for causing substantial interference with the respondent’s land, the Court found that the appellant cleared the first hurdle: the construction of an embankment on farming property in this region was accepted as being a ‘common and ordinary’ use of land.
However, the question was then whether in undertaking such common and ordinary use, the appellant’s creation and ongoing maintenance of the levee was ‘conveniently done’. In considering the meaning of this test, the Court of Appeal explained that the appellant needed to show that he had used ‘means that reasonably minimised the extent of the interference’ [5] to the respondent’s land.
In this case, the evidence demonstrated that the appellant’s use was ‘not directed at all to minimising harm to the respondent but rather exclusively to minimising the imagined harm to [the appellant].’
Accordingly, the appellant was unable to demonstrate that he had considered and acted in accordance with the convenience of the respondent. With that being the case, the appellant’s levee was not ‘conveniently done’ and the appellant was found liable to the respondent in private nuisance.
This case demonstrates the great difficulty that defendants will face in proving that their use of land was ‘conveniently done’ when it causes physical damage or interference with a neighbour’s property.
Contact
