Introduction Long and uninterrupted use of another person’s land can, in some cases, give rise to what is known as an “easement by prescription” in NSW. An easement by prescription is a property right acquired through long and uninterrupted use of another person's land — not by formal grant, agreement or statute. It is one of the older doctrines in Australian property law, rooted in common law principles that predate the Torrens title system, yet it remains very much alive in New South Wales. This article examines the legal foundation of easements by prescription in NSW, the requirements that must be satisfied, the critical distinction between 'permission' and mere 'toleration', the recent Supreme Court decision in Maloney v Putu Pty Ltd [2023] NSWSC 1148, and the process by which a prescriptive easement can be formally registered. The Legal Basis for Prescriptive Easements in NSW Prescriptive easements in NSW are founded on the common law doctrine of the lost modern grant . The doctrine proceeds on a legal fiction: where land has been used openly and continuously as of right for at least 20 years, the law presumes that a formal grant of the easement was once made but has since been lost. The foundation in NSW lies in the High Court's early decision in Delohery v Permanent Trustee Co of NSW (1904), which confirmed the doctrine's application in Australian jurisdictions. It has subsequently been affirmed in numerous NSW decisions, including the Court of Appeal's important judgment in Dobbie v Davidson (1991) 23 NSWLR 625. Key Principle: An easement by prescription arises where enjoyment of the right has been ' as of right ' — meaning without force, without secrecy, and without permission — for an uninterrupted period of at least 20 years. The requirement that the easement was enjoyed “as of right” is an important one and is to be distinguished from use of the neighbouring land with consent of the adjoining owner or in secret. It is important to note some limitations unique to NSW. Easements of light (the right to receive natural light) cannot be created by prescription after a prescribed date, and any such easements that may have previously existed have been retrospectively abolished. Prescriptive easements remain available, however, for positive rights — most notably rights of way and access. Prescriptive Easements and the Torrens System New South Wales uses a system of title by registration called the Torrens system. The Torrens system uses a centralized, government-backed register to provide secure, conclusive, and indefeasible evidence of ownership. It simplifies property transfers by replacing traditional, complex paper deeds with a single Certificate of Title. The interaction between prescriptive easements and the Torrens title system has generated significant legal debate in NSW. The indefeasibility principle at the heart of Torrens — that a registered proprietor takes title free of prior interests not recorded on the register — sits in tension with rights that arise from unregistered use and that do not appear on the register. In NSW, the accepted position is that a prescriptive easement is enforceable against the servient landowner who was registered during the period of use, on the basis of an in personam exception to indefeasibility. The prescriptive right binds the person who allowed the use, through principles of unconscionability or personal obligation. Whether such an easement automatically binds a subsequent purchaser of the servient land is more complex and depends on the circumstances of that purchaser's acquisition. This is one reason why formalising a prescriptive easement through a court order and subsequent registration is highly desirable: once recorded on the title, the easement is enforceable against all parties. The Requirements for Establishing a Prescriptive Easement To successfully claim an easement by prescription in NSW, the claimant must satisfy each of the following elements: 1. Enjoyment 'as of right' The use must have been without force, without secrecy, and without permission. This three-part formula is the cornerstone of any prescriptive easement claim: Without force: The use must not have been gained or maintained by violence, physical compulsion, or in the face of active resistance by the landowner. Persistent objection by the servient owner will defeat the claim. Without secrecy: The use must be open and visible, not concealed or clandestine. The servient owner must have had actual knowledge, constructive knowledge, or at least the means of knowledge of the use. Without permission: This is the element most frequently contested. Use made with the permission of the servient owner cannot ripen into a prescriptive right, regardless of how long it continues. The distinction between permission and mere toleration is critical and is examined in detail below. 2. Continuity for at least 20 years The use must be continuous and uninterrupted for a minimum period of 20 years. There is no fixed requirement as to frequency of use, but the use must be sufficiently regular that a reasonable person would understand that a right is being asserted rather than mere occasional access being enjoyed. The 20-year period need not immediately predate the application to court — under the doctrine of lost modern grant, any 20-year period of qualifying use may suffice. Crucially, interruption by the servient owner — such as the erection of a fence or locked gate — may restart the clock, and any period during which the dominant and servient tenements were in common ownership cannot count toward the 20-year period. 3. Use must be capable of being the subject of an easement The right claimed must be one that is capable of being granted as an easement — it must benefit a dominant tenement, accommodate and serve that tenement, and the dominant and servient tenements must be occupied by different persons. A right that could not have been lawfully granted by deed cannot be acquired by prescription. 4. The servient owner must have had knowledge (or the means of knowledge) The acquiescence of the servient owner is a necessary element. That owner must have known, or had reasonable means of knowing, that the use was occurring. The law will not fix a landowner with the burden of an easement they had no opportunity to detect or resist. The Critical Distinction: Permission vs Toleration The most practically significant and frequently litigated element of a prescriptive easement claim is the question of whether the use was 'by permission' or 'as of right'. This distinction can be deceptively subtle. The controlling principle was articulated by the NSW Court of Appeal in Dobbie v Davidson (1991) 23 NSWLR 625. Kirby P identified a non-exhaustive list of factors the Court considers in assessing whether use has been as of right or by permission: The length of time over which the conduct has been peacefully followed; The persistence of the conduct despite changes of ownership of the dominant and servient tenements; The variety and number of persons who have made use of the claimed right of way; The absence of physical impediments or obstructions to the use; and The knowledge of the use by the owners of the servient tenement and their failure to attempt to forbid, limit or control it. The NSW Court of Appeal's subsequent decision in Arcidiacono v The Owners – Strata Plan No 17719 [2020] NSWCA 269 reinforced the key principle: the Court must determine whether the servient owner consented to the use, or merely tolerated it. Toleration as a matter of 'good neighbourliness' is not inconsistent with a prescriptive easement — and indeed this was central to the outcome in Maloney v Putu Pty Ltd . Critical distinction: A servient landowner who knows of the use, does nothing to stop it, and is generally neighbourly about it has likely tolerated the use — which is consistent with prescription. A landowner who expressly authorises or grants permission for the use has consented, which defeats any prescriptive claim. Express permission must be assessed objectively, not merely by reference to the servient owner's private or subjective intentions. Even use of the word 'permission' in conversation or evidence will not automatically be determinative if, viewed objectively, the conduct was more consistent with toleration or acquiescence than with a consensual grant. Case Law: Maloney v Putu Pty Ltd [2023] NSWSC 1148 Background The 2023 decision of Peden J in the NSW Supreme Court provides an excellent recent illustration of these principles in practice. The plaintiff was the registered proprietor of 'Portland Head Farm' in Ebenezer, NSW. The only vehicular access to his property crossed over land comprising three lots — one owned by Hawkesbury City Council (which raised no objection), one whose proprietors could not be located, and Lot 119 which was owned by the first defendant, Putu Pty Ltd, and subsequently transferred to the third defendant. The plaintiff, his father and their various invitees — including guests, farm managers, tradespeople, suppliers, livestock transporters and emergency services — had used the access road for more than 20 years as the sole vehicular access to the farm. Historical mapping evidence suggested the access road had existed since approximately 1803. The Issues The two central issues before the Court were: Whether express permission had been granted in a conversation in 1978 between the parties; and If not, whether the use, while perhaps initially tolerated as a neighbourly indulgence, had over time taken on the character of a right. The Court's Findings On the question of express permission, Peden J assessed the evidence objectively. She found that the plaintiff's use was more consistent with use as of right, noting several telling factors: The plaintiff had spoken to third parties about his 'right to use the road', reflecting his own understanding that he held a legal entitlement — not a licence dependent on goodwill; The access road had been used extensively by a large number of persons over many years; The plaintiff had instructed farm managers to grade and maintain the road at his expense; When the defendant placed a gate across the access road after purchasing Lot 119, the plaintiff removed it — and the defendant did not replace it after a conversation in which the plaintiff asserted his right to use the road. Peden J drew the inference that the defendant did not intend to prevent access once she had heard the plaintiff assert his entitlement; The defendant's own words to her real estate agent — that 'there's a private road which runs through our property [which] is an access road and has always been used by the owners of Portland Head Farm' — conveyed the flavour of an entitlement as of right rather than a permissive arrangement. On the 'neighbourly toleration' question, the Court acknowledged that the defendant had given evidence that she had 'agreed' to the plaintiff's use because she was 'a firm believer of helping out your neighbour'. However, Peden J found that this could not amount to the grant of permission, because at no point had the defendant asserted any basis to prevent the use, and she had never in fact prevented it. The words of permission were, in substance, the words of good neighbourliness — which the law of prescription treats as consistent with the acquisition of a right, not as a bar to it. The Court granted the easement by prescription over Lot 119. It declined to make the same order in respect of Lot 118 because the registered proprietors of that lot had not been joined as parties to the proceedings — an important practical reminder about joinder requirements. Key Takeaways from Maloney Whether use has been 'by permission' is a question of fact, assessed objectively against all of the evidence — not simply by reference to words used. Statements consistent with good neighbourliness, or failures to actively resist use, do not constitute permission. A servient owner's failure to take action to prevent access — even after becoming aware of it — will weigh strongly in favour of a finding of use as of right. All persons with a registered interest in the burdened land must be joined as defendants in any proceedings. Formalising and Registering a Prescriptive Easement in NSW The acquisition of a prescriptive easement by long user gives rise to an equitable right. To make that right enforceable against successors in title and fully effective under the Torrens system, it must be recognised by a court order and then formally registered on the Torrens Register. Step 1: Obtain a Court Order The dominant landowner must commence proceedings in the NSW Supreme Court seeking a declaration that the prescriptive easement exists. All registered proprietors of the servient land must be joined as defendants. The applicant will need to file evidence — typically statutory declarations and supporting material — demonstrating that each element of the claim (20 years of continuous, open use as of right without force, secrecy or permission) is satisfied. Step 2: Prepare the Deposited Plan Once a court order is made, a Deposited Plan must be prepared by a registered surveyor showing the site of the easement. The plan must comply with the NSW Registrar-General's Guidelines and the technical requirements applicable to easements in deposited plans. The easement must be defined with sufficient precision — its location, width and nature must be identifiable on the plan. Step 3: Lodge with NSW Land Registry Services The court order and the deposited plan are lodged with NSW Land Registry Services for registration. On registration, the easement is noted on the folios of both the dominant and servient tenements. From that point, the right is enforceable against all subsequent owners of the servient land. Conclusion Easements by prescription remain a live and practically significant part of NSW property law. The doctrine of lost modern grant provides a pathway for dominant landowners to formalise access rights that have been exercised openly for 20 years or more — but only where that use has been genuinely 'as of right' rather than permissive. The 2023 decision in Maloney v Putu Pty Ltd is a useful recent illustration of the principles at work. It reinforces that the distinction between permission and toleration will be assessed objectively and in context, and that good-neighbourly attitudes — however sincere — will not automatically defeat a prescriptive claim. For any landowner or practitioner navigating a potential prescriptive easement — whether seeking to establish one or to resist a claim — early legal advice and prompt action are essential. The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.
Local councils are increasingly employing two mechanisms to reduce the number of applications under assessment. The first is outright rejection — returning applications on the stated basis that required documents or information are missing. The second is more passive but equally damaging: not issuing an invoice for assessment fees, leaving the application suspended in a state where it cannot be formally lodged and cannot advance. Both mechanisms carry real consequences for applicants. A development application ( DA ) that is rejected or that has not been formally lodged attracts no assessment obligations from the consent authority, no appeal rights in the Land and Environment Court of NSW ( LEC ), and no protection against planning controls that may change in the interim. This article sets out the legal rules that govern pre-lodgement rejection, explains why invoice delay can be just as harmful as outright rejection, and identifies the avenues available to applicants who find themselves in this position. The legal rules governing pre-lodgement rejection Section 39 of the Environmental Planning and Assessment Regulation 2021 ( EP&A Reg ) outlines the circumstances in which a consent authority can reject a DA at the pre-lodgement stage. The provision is deliberately narrow. A council may only exercise this power: on one of the specific grounds set out in section 39(1)(a) to (f) of the EP&A Reg; and within 14 days of receiving the DA via the NSW Planning Portal. The mirror provisions for modification applications are found at section 114(1)(a) to (d) of the EP&A Reg. Any rejection that falls outside this framework — whether because it is issued after the 14-day period has elapsed, or because it relies on grounds not found in the EP&A Reg — is legally invalid. It is an exercise of power the council simply does not have, and is open to challenge in Class 4 of the LEC's jurisdiction. The grounds on which rejection is permitted Section 39(1) of the EP&A Reg provides: (1) A consent authority may reject a development application within 14 days after receiving the application if — (a) the application is illegible or unclear about the development consent sought, or (b) the application does not contain the information and documents that are required by — (i) the approved form, or (ii) the Act or this Regulation, or (c) for an application for State significant development — the Planning Secretary considers the application incomplete for reasons given by written notice to the applicant, or (d) for an application for integrated development — the application does not identify all of the approvals required to be obtained, as referred to in the Act, section 4.46, before the development may be carried out, or (e) for an application required to be accompanied by a biodiversity development assessment report under the Biodiversity Conservation Act 2016 — the application is not accompanied by a report, or (f) for an application required to be accompanied by a species impact statement under the Fisheries Management Act 1994, section 221ZW — the application is not accompanied by a statement. The reference in section 39(1)(b)(i) to the 'approved form' relates to the form approved by the Planning Secretary and published on the NSW Planning Portal, as defined in Schedule 7 of the EP&A Reg. The relevant document at the date of this article is the Department of Planning and Environment's Application Requirements (March 2022). Essentially, the permissible grounds for rejecting a standard DA are that it is illegible or unclear, that it omits material required by the approved form, or that it omits material expressly required by the EP&A Act or EP&A Reg. One point warrants emphasis above all others: a council cannot reject a DA at the pre-lodgement stage on matters of merit. Councils occasionally attempt to return applications because their preliminary view is that the application will not be approved, or because the plans appear to involve non-compliances. This is not a lawful basis for rejection. The pre-lodgement gateway exists only to verify that the prescribed documents and information have been provided. Consideration of the merits — under the framework in section 4.15(1) of the EP&A Act — is reserved for the assessment stage, which begins only after lodgement. A merit-based rejection will almost invariably be susceptible to challenge. The 14-day window and the problem of invoice delay A council's power to reject a DA or modification at the pre-lodgement stage expires 14 days after the application is received via the NSW Planning Portal. A rejection notified after that point is legally invalid. We have observed councils purporting to reject applications well outside the 14-day window, sometimes by weeks or months, and in our experience applicants rarely challenge this. A separate but equally serious problem arises where a council does not reject the DA — but also does not issue an invoice for assessment fees. The NSW Court of Appeal and the LEC have now clearly held that a DA is only formally 'lodged' once the invoice has been issued and the fee paid: Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264 ; Commitment Pty Ltd v Georges River Council (No 2) [2022] NSWLEC 94 . Because a DA is only formally 'lodged' once the invoice has been issued and the fee paid, a council that withholds the invoice can hold an application in permanent limbo without ever technically rejecting it. The same rule applies to modification applications by virtue of section 99(4) of the EP&A Reg. An application that has not been lodged in this sense cannot proceed to assessment, generates no appeal rights, and remains exposed to any change in applicable planning controls that occurs after submission. The stakes could not be higher, as the facts of Hinkler Ave 1 Pty Ltd v Sutherland Shire Council [2023] NSWCA 264 ( Hinkler ) demonstrate. In Hinkler, the applicant uploaded a DA for a mixed-use development incorporating affordable housing to the NSW Planning Portal on 22 October 2021. No invoice was issued by the council until 2 December 2021 — five weeks after submission. During that window, on 26 November 2021, the SEPP ( Affordable Rental Housing ) 2009 ( SEPP ARH ) was replaced by the SEPP ( Housing ) 2021 ( SEPP Housing ). A savings provision in the SEPP Housing preserved rights for DAs already 'made' before its commencement. Had the invoice been issued and paid before 26 November 2021, the applicant would have been entitled to rely on the former SEPP ARH. Because it was not, the Court of Appeal held the DA was not 'made' in time, and the applicant was required to satisfy the more demanding requirements of the new SEPP Housing. At paragraph [159], Preston CJ (of LEC) noted that a council's failure to issue an invoice within a reasonable time may constitute a breach of statutory duty, and that an applicant in that position may seek an order of mandamus compelling the council to fulfil its obligation. Options available to applicants Applicants faced with an unlawful rejection or an unreasonable invoice delay have genuine legal options. Internal review under section 8.2 of the EP&A Act allows a council to reconsider its own decision. Supported by clear written submissions identifying why the rejection was not authorised by the EP&A Reg, this process can produce a faster and less costly resolution than litigation — particularly where the council's position appears to rest on a misreading of the application rather than a deliberate strategy. Judicial review is available in Class 4 of the LEC where a jurisdictional error can be established. Depending on the circumstances, an applicant may seek: certiorari to quash the rejection decision; mandamus to compel the council to accept the application and issue an invoice; and declaratory relief confirming that the rejection was unlawful. If your DA or modification application has been rejected on questionable grounds, rejected outside the 14-day window, or if an invoice has not been issued within a reasonable period, we recommend seeking legal advice without delay. The consequences of inaction — including exposure to changed planning controls — can be irreversible. The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.
Part 1: The Law of Private Nuisance in NSW What is Private Nuisance? Private nuisance is a common law tort that protects landowners from substantial and unreasonable interference with their use and enjoyment of land. Unlike public nuisance — which affects the broader community — private nuisance is concerned with protecting the rights of individual landowners against interference caused by neighbouring activities. The tort does not require any physical entry onto the plaintiff's land. Interference caused by noise, vibration, dust, fumes, noxious odours, or prolonged obstruction of access can all found a nuisance claim, provided the interference is sufficiently serious. At its core, private nuisance seeks to balance two competing interests: the right of a landowner to enjoy their property without undue disturbance, and the freedom of a neighbouring landowner to use their land for legitimate purposes. Key Elements of a Private Nuisance Claim To succeed in a claim for private nuisance, a plaintiff must establish two key elements. First, there must be a substantial interference with the plaintiff's ordinary use and enjoyment of their land. Trivial or fleeting disruptions will not meet this threshold. The interference must be something that a person of ordinary habits and sensibilities, taking into account the surrounding environment and circumstances would find genuinely disruptive to their normal use of property. Second, that interference must be attributable to the defendant's use of land or activities that affect the plaintiff's land. The concept of 'substantial interference' is assessed objectively, having regard to the locality in which the land is situated and the reasonable expectations of persons using land in that area. Courts will consider the nature, duration, frequency, and intensity of the interference when determining whether it crosses the necessary threshold. A person who operates a business in Sydney's CBD, for example, must tolerate a greater degree of noise and disruption from nearby commercial activities than a homeowner in a quiet suburban street. How Private Nuisance Differs from Negligence Private nuisance is frequently conflated with the tort of negligence, but the two are conceptually and practically distinct. In negligence, the central question is whether the defendant failed to exercise reasonable care — the focus is on the defendant's conduct. In private nuisance, the focus is on the nature of the interference with the plaintiff's land, not the manner in which the defendant behaved. A defendant who has exercised all reasonable care and skill, and who cannot be criticised for the way in which it conducted its activities, may nonetheless be liable in private nuisance if the interference with the plaintiff's land is found to be unreasonable. This distinction has significant practical consequences for plaintiffs. It means that landowners and business operators who suffer interference with their properties are not required to identify and prove a specific act of carelessness on the part of the defendant. The question is whether the interference itself was unreasonable — and whether the defendant can demonstrate a lawful justification for it. The Locality Principle NSW courts apply a locality principle in assessing private nuisance claims. The reasonable expectations of ordinary landowners differ depending on whether property is located in a quiet residential area, a busy commercial precinct, or an established industrial zone. The standard applied is that of a person of ordinary habits and sensibilities living in the relevant locality, not an unusually sensitive plaintiff whose discomfort results from a pre-existing vulnerability. Defences Available to Defendants Several defences may be available to a defendant in a private nuisance claim. The most commonly invoked — particularly in the context of public infrastructure — is the defence of statutory authority. Where legislation authorises a public authority to carry out works that would otherwise constitute a nuisance, the authority may escape liability on the basis that the interference was an inevitable consequence of exercising its statutory powers. A common example is roadworks where a statutory authority, typically a Council is authorized by legislation to carry out roadworks that may impact on private land. However, the defence is not unlimited. To succeed, the defendant must establish both that the statutory power authorised the relevant interference and that the power was exercised in a manner that reasonably minimised the impact on affected landowners. A statutory power to build, without more, does not authorise every form of disruption that results from the way in which construction is carried out. Other recognised defences include prescription — where the nuisance has continued openly for 20 years without objection — and consent. These defences are narrowly applied and will rarely excuse substantial ongoing interference. Remedies for Successful Plaintiffs A successful plaintiff in a private nuisance action may seek two principal forms of relief. Damages may be awarded to compensate for losses suffered as a result of the interference, including loss of use and enjoyment of land, diminution in property value, and losses to a business operated from the affected premises. In some cases, consequential economic losses arising from the interference may also be recoverable. An injunction may be available to restrain the defendant from continuing the nuisance, though courts exercise discretion in granting injunctive relief and will consider whether damages would be an adequate remedy and where the balance of convenience lies. Why Private Nuisance Matters for NSW Landowners Private nuisance remains one of the most valuable legal tools available to NSW landowners and business operators who suffer interference with their properties. It does not require proof that the defendant was careless. It does not require physical entry onto the plaintiff's land. And it is not dependent on any specific statutory compensation scheme. This combination of features makes private nuisance particularly relevant for those affected by large-scale construction projects, infrastructure works, and industrial or commercial activities in proximity to their premises. The High Court's decision in Hunt Leather v Transport for NSW [2025] HCA 53 has confirmed and clarified the legal principles that govern such claims — and in doing so, has strengthened the position of aggrieved landowners considerably. Part 2: Hunt Leather v Transport for NSW [2025] HCA 53 — Case Summary Background and Facts The case arose from the construction of the Sydney Light Rail project — a major infrastructure undertaking in the Sydney CBD, connecting Circular Quay with Randwick and Kensington. Transport for NSW ( TfNSW ) was the statutory authority responsible for the design and delivery of the project. The plaintiffs, including Hunt Leather Pty Ltd, were proprietors of businesses located along the construction route. They brought representative proceedings seeking damages against TfNSW in private nuisance, alleging that TfNSW's construction activities caused substantial interference with their businesses through noise, dust, vibrations, and impediments to access. The central complaint was not merely that construction was disruptive, but that it extended far beyond the timeframes set out in TfNSW's Initial Delivery Program ( IDP ) — the document that notified affected businesses of the anticipated duration of construction in each stage or 'fee zone.' The delays were substantially caused by the unexpected discovery of underground utilities along the construction route, which had not been identified or accounted for when the IDP was prepared. The Trial Decision At first instance in the NSW Supreme Court, the trial judge found TfNSW liable in private nuisance. The judge held that the delays which caused construction to extend beyond the IDP periods amounted to unreasonable interference with the plaintiffs' enjoyment of their properties. Critically, the trial judge rejected TfNSW's submission that it had exercised reasonable care in planning the works and that this was sufficient to defeat the claim. The judge accepted that reasonableness in nuisance is assessed by reference to the nature of the interference — not the conduct of the defendant. The NSW Court of Appeal TfNSW appealed, and the NSW Court of Appeal overturned the trial judge's findings. The Court of Appeal concluded that the plaintiffs had failed to establish that the interference was unreasonable. In the Court's view, the IDP could not be treated as a reliable benchmark for assessing the reasonableness of the interference, because it made no allowance for contingencies such as inclement weather or the discovery of underground utilities. The Court also held that the plaintiffs had failed to establish what pre-construction investigations TfNSW could reasonably have undertaken, whether those investigations would have been feasible, how long they would have taken, and whether they too might have constituted a substantial interference with the plaintiffs' land. In the absence of that evidence, the plaintiffs could not demonstrate that the construction exceeded a reasonable timeframe. The Court of Appeal went further, stating that it could not be the law that construction authorised by statute becomes actionable nuisance simply because it takes longer than scheduled. This observation reflected significant judicial caution about the prospect of imposing nuisance liability on public infrastructure projects that experience ordinary construction delays. The High Court Decision The High Court allowed the plaintiffs' appeal and upheld the trial judge's finding. In doing so, the Court provided the most authoritative and comprehensive statement of the principles governing private nuisance to emerge from an Australian appellate court in many years. The lead judgment was delivered by Justices Gordon and Edelman, with the Chief Justice and other members of the Court providing separate concurring judgments. Substantial Interference — The starting point for any nuisance claim is whether there has been a substantial interference with the plaintiff's ordinary enjoyment of land. This threshold must be established by the plaintiff and is assessed objectively by reference to the locality and the reasonable expectations of persons using land in that area. The High Court confirmed that this element was clearly established on the facts: the prolonged occupation of fee zones, far beyond what was contemplated in the IDP, plainly constituted a substantial interference with the plaintiffs' use and enjoyment of their properties. Common and Ordinary Use — Once substantial interference is established, the onus shifts to the defendant to justify it. The first question is whether the defendant's use of land was 'common and ordinary' for that locality. This is assessed with regard to the objectively reasonable expectations for land use in the relevant area. The Court emphasised that 'common and ordinary' does not mean 'performed with reasonable care.' The inquiry is about the nature of the use itself — whether it is the kind of use that landowners in that locality could reasonably expect from their neighbours — not about the standard of care with which it is carried out. Conveniently Done — Even if a defendant's use of land is found to be common and ordinary, it may still constitute nuisance unless the defendant can establish that the interference was 'conveniently done.' This test requires the defendant to demonstrate that it took reasonable steps to minimise the extent of the interference with the plaintiff's enjoyment of land. As Justices Gordon and Edelman explained, this requires consideration not merely of the convenience of the defendant, but also the convenience of the plaintiff. A defendant cannot point to its own operational preferences, financial constraints, or project management decisions to justify an extended and substantial interference with a neighbouring landowner's use of their property. Burden of Proof — The High Court confirmed the allocation of the burden of proof with clarity. The plaintiff bears the legal onus of establishing substantial interference with the common and ordinary use of their land. Once that is established, the onus shifts to the defendant to prove — by way of defence — that its use of land was common and ordinary and was conveniently done. The plaintiff also has an evidentiary onus to identify the respects in which the defendant's conduct was not conveniently done, but is not required to prove a detailed counterfactual about what the defendant could have done differently and with what result. No Counterfactual Required — One of the most important aspects of the High Court's decision is its rejection of the Court of Appeal's finding that the plaintiffs were required to establish what steps TfNSW could and should have taken prior to and during construction to reduce the interference, and to prove that those steps would have made a material difference. The High Court held that this requirement imposed an unrealistic and disproportionate evidential burden on plaintiffs who are unlikely to have access to the defendant's internal planning records, operational data, and project management decisions. Statutory Authority Defence TfNSW argued that it was immune from liability on the basis that the Sydney Light Rail was authorised by legislation. The High Court upheld the Supreme Courts' rejection of this defence. The Court confirmed that statutory authority requires the defendant to establish that the interference was an inevitable consequence of the exercise of the statutory power — not merely that the project as a whole was authorised by statute. Because the prolonged delays that caused the interference resulted from TfNSW's own planning decisions and choices, rather than from the inherent nature of the authorised works, the interference was not inevitable. The statutory authority defence therefore failed. Section 43A of the Civil Liability Act 2002 (NSW) TfNSW also relied on s 43A of the Civil Liability Act 2002 (NSW), which attenuates the standard of care applicable to public authorities exercising special statutory powers. The High Court unanimously confirmed that s 43A does not operate as a standalone defence, but rather adjusts the applicable standard of care. More importantly, the Court held that s 43A did not apply on the facts because the planning and procurement of the project did not involve the exercise of a 'special statutory power' within the meaning of the provision. Outcome Although the Justices reached different conclusions on the question of whether TfNSW's use of land was 'common and ordinary,' they were unanimous in finding that TfNSW's construction was not 'conveniently done.' TfNSW was accordingly held liable to the plaintiffs in private nuisance, and the trial judge's award of damages was reinstated. Part 3: Implications for Private Nuisance Law in NSW Nuisance and Negligence Are Distinct The High Court's most enduring contribution in Hunt Leather is the unequivocal confirmation that private nuisance and negligence are distinct torts governed by different principles. For plaintiffs, this is of profound practical significance. A landowner or business operator who suffers substantial interference with the use and enjoyment of their property is not required to prove that the interfering party was careless, that a duty of care was owed, or that the defendant breached any applicable standard of reasonable conduct. The question in nuisance is whether the interference itself was unreasonable — not whether the defendant's behaviour was unreasonable. This distinction opens the door to liability even where the defendant has done everything that could reasonably be expected of a careful and diligent operator. A Stronger Position for Affected Landowners For NSW landowners and business operators, Hunt Leather provides a clearer and more accessible legal framework for pursuing private nuisance claims arising from construction and infrastructure works. The rejection of the counterfactual requirement — which would have compelled plaintiffs to mount a detailed expert case about how the defendant's project planning should have been conducted — removes a significant practical obstacle. Affected parties need only identify the respects in which the defendant's use of land was not conveniently done. Once that evidentiary case is made, the burden falls squarely on the defendant to justify the interference. This is a more workable framework for landowners and business operators who will often lack access to the defendant's internal planning documents, programming schedules, and operational decision-making. It recognises that the plaintiff is not in a position to know the full detail of how the defendant managed its project. Obligations for Statutory Authorities and Project Proponents The decision carries important and practical implications for statutory authorities responsible for infrastructure and construction projects, as well as for their contractors and project managers. The mere fact that works are authorised by statute will not protect an authority from liability in private nuisance. To successfully invoke the statutory authority defence, the authority must demonstrate that the interference with neighbouring landowners was an inevitable consequence of exercising its statutory powers — and that those powers were exercised diligently and expediently and with proper consideration for the interests of affected parties. Where delays and disruptions result from the authority's own planning choices — inadequate pre-construction investigations, unrealistic programming or poor risk management — the statutory authority defence will not provide protection. Authorities and contractors must invest seriously in thorough pre-construction investigations, realistic and contingency-aware programming, and active management of construction impacts on neighbouring properties and businesses. Where extended works or delays are unavoidable, authorities should be in a position to demonstrate the specific steps taken to minimise the impact on affected parties. The 'Conveniently Done' Standard The High Court's articulation of the 'conveniently done' standard will be a focal point of future private nuisance litigation. The test is a demanding one. It requires defendants to demonstrate not merely that their chosen approach to construction was operationally convenient or cost-effective for them, but that it gave proper and genuine consideration to the impact on neighbouring landowners. The interests of the plaintiff must be weighed alongside the interests of the defendant in assessing whether the interference was conveniently done. In practice, this means that authorities and project proponents should document their impact mitigation efforts from the earliest stages of a project. Evidence of proactive engagement with affected businesses, meaningful adjustment of construction sequences to reduce impacts, and genuine consideration of alternative approaches will all be relevant to establishing that the interference was conveniently done. Defendants who cannot point to such measures will face significant exposure. Conclusion Hunt Leather v Transport for NSW [2025] HCA 53 is the most significant development in the law of private nuisance in Australia in recent decades. By authoritatively clarifying the framework for establishing and defending nuisance claims, and by firmly distinguishing the tort from negligence, the High Court has provided both plaintiffs and defendants with a clearer understanding of their legal rights and obligations. For landowners and business operators in NSW, the decision confirms that private nuisance is a robust and accessible legal remedy — one that provides genuine protection where the use and enjoyment of land is substantially and unjustifiably disrupted by the activities of others. For statutory authorities, infrastructure proponents, and their contractors, it is a clear signal that thorough planning, realistic programming, and genuine impact mitigation are not merely good practice — they are legal imperatives. The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.
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