Managing private nuisance risk in development works: lessons from the High Court

The High Court of Australia handed down its judgment in Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53 in mid-December, providing long-awaited clarity on the principles of private nuisance.

The dispute arose in relation to the construction of the Sydney Light Rail (SLR) project, which caused significant disruption to neighbouring businesses. The appellants, Hunt Leather and Ancio Investments, initiated proceedings as lead plaintiffs for landowners near the SLR project who claimed to have suffered loss or damage by reason of a substantial interference with their enjoyment of land. The respondent, Transport for New South Wales (TfNSW), planned and procured the construction of the SLR project.

At trial, Cavanagh J found TfNSW liable in private nuisance for substantially interfering with the plaintiffs’ use and enjoyment of their land, in circumstances where the construction works extended well beyond the anticipated timeframe. On appeal initiated by TfNSW, that initial finding was overturned by the New South Wales Court of Appeal, in part because Hunt Leather and Ancio Investments were said not to have established when, why, or at what point the interference attributable to TfNSW became unreasonable.

The High Court reinstated the trial judge’s decision, holding that the interference became unreasonable because of the extended delays, and that liability in private nuisance turns on whether the impact to the appellants exceeds what a reasonable person should be expected to endure in the circumstances.

Substantial interference 

The High Court emphasised that the principles of private nuisance balance a plaintiff's right to land with the liberties of a defendant to use other land. As such, a majority of the High Court held that liability in private nuisance arises from a substantial interference with a plaintiff's ordinary enjoyment of land if: 

(i) the defendant's land use is not 'common and ordinary'; or 

(Ii) the defendant's land use was not 'conveniently done', in that the defendant failed to reasonably minimise the substantial interference with the plaintiff's ordinary enjoyment of land.

Common and ordinary

What is considered ‘common and ordinary’ is determined by reference to objectively reasonable expectations for land use in the area, rather than by the standard of care taken by the defendant. 

The High Court confirmed that mere compliance with environmental and planning authorisations, including any associated conditions, does not constitute a defence to a nuisance claim. Even if a defendant's land use aligns with planning laws, planning permission for an activity does not, in itself, transform an uncommon purpose into a common one or diminish private law rights, unless there is a specific statutory authority to do so.

Conveniently done

Where a defendant establishes that the activity is a ‘common and ordinary’ use of land, liability in nuisance may still arise if the activity was not ‘conveniently done’. The expression ‘conveniently done’ means that all reasonable and proper steps were taken by the defendant to ensure that no undue inconvenience was caused to Hunt Leather and Ancio Investments’ enjoyment of the land. 

The High Court explained that temporary operations, such as demolition and construction, do not amount to private nuisance if they are carried out reasonably and all proper steps are taken to minimise inconvenience to neighbours. In such cases, neighbours may be expected to tolerate reasonable disruption from noise, dust or other impacts. 

In this case, the Court found that the SLR project exceeded its planned and announced construction timelines due to TfNSW’s failure to properly plan for unexpected underground utilities and to implement effective measures to minimise delays and disruption.

In applying the principles of private nuisance, a majority of the High Court concluded there was substantial interference with Hunt Leather and Ancio Investments’ ordinary enjoyment of their land, and that TfNSW had not discharged its onus to establish it planned and procured the SLR project’s construction in a manner that reasonably minimised the extent of that substantial interference.

Application of Section 43A

Section 43A of the Civil Liability Act 2002 (NSW) provides that a public authority is not liable unless its act or omission was so unreasonable that no authority, having the relevant special statutory power, could properly regard it as a reasonable exercise of that power. The High Court unanimously rejected reliance on section 43A as a defence, holding that the SLR project did not involve an exercise of a special statutory power and therefore the provision did not apply on the facts.

Implications

The High Court’s decision in Hunt Leather v TfNSW provides important guidance to parties undertaking or procuring major development projects.

The case highlights that even with planning approval, proponents can still face liability in private nuisance if their activities cause substantial and unreasonable interference with neighbouring land.

To reduce the risk of private nuisance claims, developers should ensure all reasonable steps are taken to minimise disruption, communicate with affected neighbours and proactively address foreseeable risks, including risks of delays and unexpected site conditions.