Australia: The law of nuisance: are landlords or tenants to blame?

Last Updated: 2 June 2015
Article by Bill Burrough
Focus: The law of nuisance in the context of leasing
Services: Property & projects
Industry Focus: Property

The law of nuisance is concerned with balancing the conflicting interests of adjoining owners. In this article, we examine the law of nuisance in the specific context of leasing and consider its impact on the landlord-tenant relationship.

Nuisance caused by the landlord

It is difficult to envisage circumstances in which a tenant might be liable for nuisance caused by a landlord to third parties.

However, it is not uncommon for a tenant to have a claim against a landlord for loss suffered by the tenant itself, arising from the acts of the landlord. This is most likely to occur in connection with a breach of the tenant's right to 'quiet enjoyment'. The covenant for quiet enjoyment is an issue we have covered in previous alerts, most recently in February 2015.

A good example of a tenant's success in bringing this type of claim against a landlord is the case of Lagouvardis v Brett and Janet Cottee Pty Limited [1995] ANZ ConvR 590. There, the tenant's permitted use of the leased premises was for computerised signwriting and automotive windscreen and domestic window tinting. The tenant complained that dust was entering the premises from a car park owned by the landlord, situated immediately behind the tenant's workshop. The dust interfered with the fixing of the window tint film which resulted in considerable rectification costs. The tenant subsequently vacated the premises and the landlord claimed for unpaid rent and outgoings. In response, the tenant cross-claimed seeking damages for nuisance or for breach of the covenant for quiet enjoyment.

The Court held that the tenant was entitled to terminate the lease for repudiation by the landlord and to recover damages, with no liability for rent for the remainder of the lease term after termination. In reaching this conclusion, the Court made the following noteworthy findings:

  • the landlord not only knew that the tenant was conducting a very sensitive business on the premises, but also knew that the tenant had complained about the problem
  • the landlord had promised to seal the car park but had failed to do so
  • the landlord had promised to sweep the car park regularly but had failed to do so
  • a serious amount of dust was entering the premises from the car park (the car park being under the control of the landlord) which was causing great detriment to the tenant's business, and
  • the dust penetration was a nuisance.

Nuisance caused by the tenant

Landlords will usually include in their leases an obligation on the tenant not to do anything in or around the premises which may be a nuisance to other occupiers in the building or adjoining properties. Where a tenant does cause such a nuisance, the landlord may give an appropriate notice to the tenant setting out details of the default and requiring the tenant to remedy it. If the tenant fails to comply with the notice, the landlord will have the usual remedies available to it under the lease.

However, as landlords generally do not want to get caught up in disputes between tenants, they will often include further provisions in their leases to state that they are not obliged to actually enforce these rights on behalf of one tenant against another.

There can also be situations where a landlord may be tempted to maximise its rental income by leasing premises for a use that is permitted under the relevant land use zoning and planning approvals, but could be annoying to adjoining property owners. The question that arises in this situation is who can be held liable for a resulting nuisance committed by the tenant – the landlord, the tenant, or both?

This issue came before the United Kingdom Supreme Court in 2014 in Lawrence v Fen Tigers Limited [2014] 2 WLR 433; [2014] 3 WLR 555 (the Fen Tigers Case).

In accordance with relevant planning permissions, a stadium was constructed for various motor sports, including speedway racing and stock car racing. Subsequently, an adjoining motocross track was added. The planning permissions did not place any conditions on the level of noise. Some years later, the complainants bought a house near the stadium and complained about the noise that came from it. Noise abatement notices were issued under Environmental Protection legislation and some works were carried out as a result, but the complainants alleged that the noise was still unacceptable. They brought proceedings against several parties including the landowners, the tenant and the organiser of the events.

The Court held that it was no defence to the nuisance claim that the complainants had acquired the affected property after the nuisance had started. (It might have been a defence if the complaint had arisen because of a post-acquisition change in the use of the affected property by the complainants, but this was not the case here). Further, it was held that a planning authority could not by the grant of planning permission authorise the commission of a nuisance.

The relevant question was what a normal person would think was a reasonable level of noise to have to put up with, given the established pattern of uses, or character, of the locality. While the implementation of a planning permission could be relevant to evaluating the established pattern of uses, it could not be relied upon as making the noise constituting the nuisance 'part of the character' of the locality. In other words, the planning permission was not the major determinant of liability, even where the grant related to a major, strategic development.

Ultimately, the Court held that the activities causing the noise constituted a nuisance. After weighing up all the competing factors in the exercise of its discretion, the Court awarded damages and injunctive relief against both the tenant and the operators of the mortorsport stadium and motocross track.

Subsequently, there was a further hearing to determine whether the landlords could be held additionally liable for damages for the nuisance committed by the tenant. There, the Court reasoned that a landlord would not be liable for nuisance caused by the tenant unless the landlord could be said to have authorised the nuisance, or otherwise had participated directly in the commission of it. If a landlord had been aware of the nuisance but had taken no steps to prevent it, this on its own would not be enough to make the landlord liable. Further, the mere letting of the property would not amount to authorisation unless there was a very high probability that this would result in nuisance.

As a result, the Court went on to find that in this case, the landlords were not liable in nuisance. The majority concluded that the permitted use could have been carried on without causing a nuisance, and the fact that the landlords had canvassed for the continued use of the stadium for motor sports did not amount to participation in the nuisance.

However, it is clear from this case that there may be circumstances in which a landlord may find itself liable for nuisance caused by its tenant.

The Fen Tigers Case and New South Wales

The weight given to a development consent in New South Wales in cases involving nuisance would seem to be consistent with the common law as it is applied in the United Kingdom. In Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363, Basten JA noted at 68: "So far as the operation of the development consent is concerned, that is a matter to be pleaded by way of defence. Whether or not the grant of a development approval will provide a defence to a claim in nuisance, and if so, in what circumstances, may well depend not merely on a pleading but on the evidence".

Key takeaways

Lesson for landlords

Landlords need to carefully consider the use which is to be permitted in the lease. Having a covenant in the lease that the tenant must not commit a nuisance may not protect the landlord where, at the time of the grant of the lease, there is a very high probability that the permitted use will result in a nuisance.

Tip for tenants

Tenants also need to carefully consider the use they intend to make of the premises having regard to the character of the locality. Even if the use is permitted under the lease and allowed under the relevant planning controls, there is no guarantee that an action may not be brought at some time in the future by an aggrieved neighbour.

A word on Statutory Authorities

In certain circumstances where the development is important enough, Parliament may be prepared to enact legislation to overrule the common law. For example, section 19A(2) of the Luna Park Site Act 1990 (NSW) provides that "[t]he emission of noise from the Luna Park site does not constitute a public or private nuisance".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.