When a public authority undertook construction of a light rail project, affected businesses sued in private nuisance for substantial interference with their use and enjoyment of their premises1. They succeeded and were awarded damages. The case illustrates the complexities arising at the intersection of public works and private occupation. In the context of project legislation, the common law presumption against legislative authorisation of what would otherwise be tortious conduct (nuisance) became relevant2. In this regard, legislation is read to justify conduct only to the extent it is the ‘inevitable result’ of the work3. There was substantial interference caused by dust, noise and road closures which the authority failed to show was reasonably minimised.
Gordon Brysland – Tax Counsel Network gordon.brysland@ato.gov.au 0417 605 338
See here for the official PDF of Episode 128 of interpretation NOW!
Thanks – Jeremy Francis, Patrick Boyd, Michael Mirtsis & Charlie Yu.
Footnotes:
1 Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53.
2 [36], Coco (1994) 179 CLR 427 (436), cf Smethurst [2020] HCA 14 [118].
3 [36], Benning (1969) 122 CLR 249 (309), Farnworth [1930] AC 171 (183).