7.2 Nuisance, negligence and trespass
In addition to pollution offences, there are offences for causing an environmental nuisance under the Waste Management and Pollution Control Act and for causing a public health nuisance under the Public and Environmental Health Act 2011.
Pollution which causes environmental damage or injury to land (as opposed to the public at large) may also give rise to civil claims for private nuisance or trespass at common law. If pollution is caused by a person’s negligence, it may give rise to a civil claim under the common law of negligence.
Common law does not strictly recognise compensation for “environmental” harm but it does recognise damage to property2 and so it can be a useful source of legal rights, if property is damaged by pollution.
An environmental nuisance is something that has an adverse effect on the amenity of an area that:
is caused by noise, smoke, dust, fumes or odour; and
unreasonably interferes with or is likely to unreasonably interfere with the enjoyment of the area by persons who occupy a place within the area or are otherwise lawfully in the area; or
is an unsightly or offensive condition caused by contaminants or waste.3
It is an offence to cause an environmental nuisance under s83(5) of the Waste Management and Pollution Control Act. The Waste Management and Pollution Control Act does not apply to mining sites, petroleum operations and pipeline operations but similar offences of causing an environmental nuisance exist under different legislation:
The Mining Management Act sets up an offence for doing an act or failing to do an act that is in breach of an environmental obligation under the Act and causes environmental nuisance on a mining site. An environmental nuisance under the Mining Management Act means:
(a) an adverse effect on the amenity of land caused by noise, smoke, dust, fumes or odour; or
(b) an unsightly or offensive condition on the land.
The Petroleum Act sets up an offence for doing an act or failing to do an act at a petroleum operation that causes the release of a contaminant or waste material on, above or under land, if the contaminant or waste material causes an environmental nuisance to land all of which is within one kilometre of the site where the contaminant is released.6An environmental nuisance under the Petroleum Act means an adverse effect on the amenity of the land caused by noise, smoke, dust, fumes or odour; or an unsightly or offensive condition on the land.
The Energy Pipelines Act also has an offence for causing an environmental nuisance. A person must not, during the conduct of an authorised pipeline operation do an act, or fail to do an act, that causes the release of a contaminant or waste from a pipeline, if the contaminant or waste causes an environmental nuisance to land all of which is within one kilometre of the pipeline.8
The penalty for causing an environmental nuisance under all of these Acts is a level 4 penalty under the Environmental Offences and Penalties Act. A level 4 penalty is punishable on conviction by a fine of up to 77 penalty units for a person and up to 385 penalty units for a corporate body. For more information on penalties, see Fact Sheet 1.7 on Penalties .
The Waste Management and Pollution Control Act is administered by the Department of Natural Resources, Environment, The Arts and Sport. As the Act does not state who may bring prosecutions for offences, private prosecutions for offences may be brought by members of the public. Prosecutions must be brought within 12 months of the Department of Natural Resources, Environment, The Arts and Sport first becoming aware of the commission of the offence. Similarly, members of the public may bring private prosecutions for offences under the Energy Pipelines Act and Energy Pipelines Regulations.
Enforcement proceedings for offences under the Petroleum Act may only be commenced with the written consent of the Minister for Resources.10 Members of the public may therefore bring private prosecutions against offenders provided that they obtain the consent of the Minister for Resources. Proceedings may be brought at any time. Enforcement of offences under the Mining Management Act may only be commenced by the Chief Executive Officer of the Department of Resources or with his or her written approval. Proceedings must be commenced within 12 months after the day on which Chief Executive Officer first became aware of the commission of the alleged offence.
Pollution or waste may also be considered to be a risk to public health or environmental health under the Northern Territory Public and Environmental Health Act 2011 and Public Health (Nuisance Prevention) Regulations.The Public and Environmental Health Act 2011has two offences relating to public health nuisances. A public health nuisance is anything that puts, has put or will put at risk or damages, has damaged or will damage public health. Public health means the physical, mental and social wellbeing of the community. For example, a public health nuisance could relate to a place, dust, fumes, vapour or other emissions, water, or refuse. It is an offence to intentionally or recklessly engage in conduct which results in a public health nuisance. It is also an offence to knowingly allow a public health nuisance and intentionally fail to remove it or prevent it.
Under the Public Health (Nuisance Prevention) Regulations certain activities are deemed to be nuisances. For example, chimneys which emit lots of smoke (except from houses) and premises or workplaces in such as state as to be a nuisance or injurious to health are nuisances.
If you are affected by a public health nuisance, you can complain to an authorised officer of the Department of Health. An authorised officer must investigate your complaint and decide whether or not a public health nuisance exists. The Chief Health Officer of the Department of Health may issue a public health notice or public health order to direct a person to rectify a public health nuisance.
Enforcement of breaches of the Public and Environmental Health Act 2011may only be started by an authorised officer of the Department of Health or by a person authorised by the Minister for Health. Proceedings may only be started within two years of the offence.
In addition to public health nuisances, the common law of public nuisance may also be relevant to dealing with nuisances. This applies when members of the public at large suffer injury, loss or damage as a result of a nuisance.
Some pollution or waste might also constitute a private nuisance. A private nuisance is a substantial and unreasonable interference with the use and enjoyment of land. Private nuisances affect individuals rather than the public at large.
A nuisance is an act or omission which interferes with, disturbs or annoys a person in the exercise or enjoyment of his or her ownership or occupation of land or of some easement, profit, or other right used or enjoyed. Common private nuisances include the spread of dust, smells and noise. To bring a civil claim for nuisance, the pollution must be actually harmful to a person’s property or in some way reasonably affect the enjoyment of it. Some nuisances may also give rise to trespass or negligence, where for example, pollution escapes from someone else’s land onto private land.
The remedies for nuisance are injunctions and damages.30An injunction is an order made by a court to stop a person doing something, or in some cases, to require them to do something. Damages are an award of money to be paid by a person as compensation for loss or injury.
Pollution incidents may also give rise to common law claims in trespass. This occurs when a person intentionally or recklessly wrongly allows something to enter onto another person’s land. For example, by dumping waste or spraying toxic chemicals onto another person’s land. The remedies for trespass are injunctions and damages. An injunction is an order made by a court to stop a person doing something, or in some cases, to require them to do something. Damages is an award of money to be paid by a person as compensation for loss or injury.
A person must take reasonable care to avoid a reasonably foreseeable risk of causing damage to property or injury to a person. If land has been damaged or people have been injured by pollution caused by someone’s negligence, it may be possible to claim compensation or damages for the loss or damage suffered. It may also be possible to restrain activities which are causing damage by seeking an injunction.
To being a claim in negligence four things need to be proven:
The person who was responsible for the injury or damaged owed the person bringing the claim a duty of care. This will usually be proven if the person responsible should have reasonably foreseen that his or her conduct may have been likely to cause loss or damage to the person bringing the claim
the person responsible breached that duty by failing to take reasonable care
the breach of duty caused injury or damage to be suffered by the person bringing the claim – damage includes personal injury, such as illness or disease or property damage or economic loss
the injury or damage suffered was not too remote a consequence of the breach of duty – usually this means that a reasonable person should have foreseen that the damage could have been caused.
How to take action
You can report pollution to the Department of Natural Resources, Environment, The Arts and Sport by telephoning the Pollution Hotline. If pollution is coming from a mine, petroleum or pipeline operation, you can report this to the Department of Resources.
If pollution is causing a public health nuisance, you can report this to the Environmental Health officers at the Department of Health.
If you are concerned about damage to the environment caused by pollution, please contact the Environmental Defenders Office to obtain legal advice on the legal options available to you to stop the pollution or to clean up the damage. The Environmental Defenders Office is a community legal centre, which specialises in public interest environmental law.
If you have been injured by pollution or have suffered property damage, you should contact a lawyer to obtain independent legal advice.
If you need help with a legal case but cannot afford to pay for a lawyer you may be able to get help from: