Public Nuisance

– Common Law

Man Covering EarsA public nuisance is more than a just an annoyance. There must also be reasonable steps taken by the complainant to a void the nuisance, otherwise they too can be deemed responsible. It may involve trespass, burning off, smell, poorly positioned rubbish or cars.

If someone is experiencing a public nuisance they can report it to their local municipality. If they have not dealt with the issue in a reasonable time then the complainant is able to begin the process in the courts.

This charge is generally laid in situations where a person does an act which is either not authorised by law or fails to discharge a legal duty, and the act either endangers the life, health, property, morals or comfort of the public, or obstructs the public in the exercise of legal rights.

Examples of Public Nuisance
  • A neighbour has several cars that don’t fit in their drive way. They park their cars on the nature strip and over the foot path so the footpath is completely covered. Neighbours and their small children are forced to walk onto the road to move around the cars. The neighbours have been asked to park their cars more safely, however they have not.
  • An aspiring handyman is teaching himself all manner of building techniques in his inner-city garage. He is throwing any waste and off-cuts over the fence and into an easement he shares with 3 neighbours. The easement is a shared walkway between the houses and one house requires on the easement for access to their home from the street.
  • An aspiring inner city group of musicians set up a rehearsal space on a nature strip and play loudly throughout their weekend. gathering a crowd, making noise, and creating a dangerous situation with electrical wiring.
Questions in cases like this
  • Was it an annoyance or a nuisance?
  • Were reasonable steps taken to avoid the annoyance?
What are some of the possible defences to Public Nuisance?

Defences to this could be duress, a factual dispute, honest and reasonable mistake of belief, wrongful identification, lack of intent, mental impairment or necessity.

You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.

Maximum penalty and court that deals with this charge

County Court
The offence of a Public Nuisance will likely be heard in the Magistrates’ Court or the County Court depending on the circumstances surrounding the allegations.

What is the legal definition of Public Nuisance?
  1. A person must not—
    1. cause a nuisance; or
    2. knowingly allow or suffer a nuisance to exist on, or emanate from, any land owned or occupied by that person.

    Penalty: In the case of a natural person, 120 penalty units; in the case of a body corporate, 600 penalty units.

  2. A person is not guilty of an offence under subsection (1)(b) if the person had a lawful excuse for knowingly allowing or suffering a nuisance to exist on, or emanate from, any land owned or occupied by that person.1
“Have you been accused of being a nuisance?”
Legislation

Public Health and Wellbeing Act 2008 (VIC) s 61

Elements of the offence

In essence to prove this charge the Police must show that the accused did an act which was not authorised by law or failed to discharge a legal duty and that the act or failure to discharge either endangered the life, health, property, morals or comfort of the public, or obstructed the public in the exercise of their legal rights. Furthermore that the complainant was not in a position to help curtail the nuisance.

Media information
Case studies related to Public Nuisance

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[1] Public Health and Wellbeing Act 2008 (VIC) s 61