Final stop for private nuisance: Hunt Leather v Transport for NSW
Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53
The High Court of Australia has provided long-awaited clarity on the relevant principles which underpin the tort of private nuisance.
Prior judgments
At trial, Transport for NSW (TfNSW) was found liable in private nuisance for having caused substantial interference with the plaintiffs’ enjoyment of their land, by reason of its construction activities having extended beyond the anticipated timeframe of the project. The NSW Court of Appeal overturned that finding of liability, including on the basis that the plaintiffs had not established what was pre-construction activity on the part of TfNSW would have reduced that interference. The Court of Appeal also stated that as a matter of policy, it ‘cannot be the case that construction authorised by statute becomes actionable nuisance if it takes a month or two months or three months longer than scheduled.’
High Court of Australia
In reinstating the trial judge’s finding of liability in private nuisance, the High Court of Australia has confirmed that, at its core, the tort of private nuisance aims to balance a plaintiff's right to enjoyment of their land with the liberties of a defendant to use other land.
The starting point is whether there has been a substantial interference with the plaintiff’s ordinary enjoyment of land. Once this is established, the focus then shifts to whether the defendant has acted with ‘any lawful ground of justification or excuse.’
The test in this respect is twofold. A defendant will be liable in private nuisance if that substantial interference was caused by either:
- the defendant’s use of their land being for a purpose that is not ‘common and ordinary;’ or
- if that use was ‘common and ordinary,’ it was not ‘conveniently done.’
'Common and ordinary'
What is ‘common and ordinary’ should be determined with regard to the locality of the land and the objectively reasonable expectations for use of land in that area. In this respect, the Court emphasised that the use of the word ‘reasonable’ ought not be confused with ‘reasonable care’ so as to conflate private nuisance with the tort of negligence. Rather, the consideration is whether the use itself was reasonable.
‘Conveniently done’
Even if a defendant uses its own land in a common and ordinary way, and exercises reasonable care or skill, it may nonetheless be liable in private nuisance, unless it can be established that the substantial interference with the plaintiff’s land was ‘conveniently done.’
This test requires a defendant to reasonably minimise the extent of the interference with the plaintiff's ordinary enjoyment of their land. As Justices Gordon and Edelman explained at [113] in the lead judgment, it requires consideration ‘not merely of the convenience of the defendant, but also the convenience of the plaintiff.’
In a separate judgment, Gagelar CJ emphasised a distinction between 'unreasonable' in nuisance and 'unreasonable' in negligence, with ‘unreasonableness’ in the context of nuisance not referring to risk-creating conduct of the defendant, but to the reasonable expectations of a normal person occupying the plaintiff's land.
Burden of proof
The High Court confirmed that the legal onus rests with the plaintiff to establish that there was a substantial interference with the common and ordinary use of their land arising out of the defendant's use of its land.
Once that is established by the plaintiff, the onus then shifts to the defendant to prove, by way of defence, that its use of land was common and ordinary, and was conveniently done. That being, to avoid liability, a defendant must demonstrate that its use was undertaken with ‘a proper consideration for the interests’ of the plaintiff (per Beech-Jones J at [274]).
However, the plaintiff also has an evidentiary onus to identify the respects in which the defendant’s use of land was not conveniently done.
The High Court held the plaintiffs did not need to establish the counterfactual of what would have occurred had TfNSW done more in advance of the Project to manage the timeframe of construction, or to identify the point at which it became unreasonable for the plaintiffs to continue to suffer substantial interference with their land without compensation.
The High Court overturned the Court of Appeal’s finding in this regard.
Section 43A Civil Liability Act
The High Court affirmed that s 43A is not a ‘defence’ but an attenuation of the standard of care applicable to public authorities. The High Court unanimously upheld the Supreme Court and Court of Appeal’s analysis that the planning and procurement of the project was not a ‘liability based on’ the exercise of a special statutory power and that s43A did not apply on the facts.
Statutory authority
The High Court otherwise upheld the lower courts’ rejection of TfNSW’s statutory authority defence.
The legislation authorised TfNSW to construct the light rail but did not mandate the manner or timing of the works. TfNSW was required to establish that it exercised its powers with a view to minimising the interference with the enjoyment of the plaintiffs’ land.
TfNSW failed to establish that it exercised its statutory powers in accordance with those implied conditions for the duration of the nuisance. The interference was not inevitable. Rather, it resulted from delays and planning choices, not from the inherent nature of the project.
Outcome
Although the High Court judges reached different conclusions as to whether the use of land by TfNSW was ‘common and ordinary’, the Judges unanimously found that TfNSW’s construction of the Project was not ‘conveniently done.’ As such, TfNSW was held to be liable to the plaintiffs in private nuisance.
Implications
There has long been debate about the principles underpinning the tort of private nuisance and its intersection with and differentiation from the tort of negligence. The High Court of Australia has put an end to that debate.
The two torts are distinct. Whereas the tort of negligence is concerned with the unreasonableness of a defendant’s conduct, the tort of nuisance is concerned with the unreasonableness of the interference with the plaintiff’s property. A defendant may exercise reasonable care and nonetheless be liable to a plaintiff in private nuisance.
In this respect, a plaintiff who suffers property losses by reason of the use of land by a defendant may have a more straightforward cause of action in private nuisance than in negligence.
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