Public works can be a real nuisance: Liability risks for public infrastructure

In an important judgment for public authorities procuring major infrastructure works, the High Court has held that, absent unambiguous language, statutory authority is not a blanket immunity to private nuisance claims arising from the conduct of the works. Rather, statutory authority only excuses nuisance if the interference with a person’s ordinary enjoyment of their land caused by the works was inevitable and unavoidable by the exercise of reasonable care and skill.

In Hunt Leather Pty Ltd v Transport for NSW; Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53, the court unanimously allowed two appeals from decisions of the Court of Appeal of the Supreme Court of New South Wales.

The case, which concerns the liability of Transport for New South Wales in planning and procuring the construction of the Sydney Light Rail, reaffirms the principles of the tort of private nuisance and will have significant consequences for public authorities undertaking and commissioning public works in Australia.

The case concerned claims by Hunt Leather Pty Ltd and others for private nuisance arising from the planning and construction of the Sydney Light Rail. The appellants operated businesses which fronted roads along the route of the Sydney Light Rail. The businesses were severely affected by prolonged construction works, causing noise, dust, restricted access, and other disruptions.

Decision

The High Court held Transport for New South Wales liable for damages under the tort of private nuisance. In particular, the Court held that:

• there was a substantial interference with the ordinary enjoyment of land by the appellants; and
• Transport for New South Wales did not establish that it had planned and procured the construction of the Sydney Light Rail in a manner which reasonably minimised the extent of that interference (or in the words of Gordon, Edelman and Beech-Jones JJ, in a manner which was “conveniently done”).

The High Court also rejected the application of s 43A of the Civil Liability Act 2002 (NSW) and found that Transport for New South Wales could not escape liability by relying on the defence of statutory authority.

Implications

The case confirms that the tort of private nuisance is governed by principles which seek to strike a balance between a plaintiff’s right to the use and enjoyment of land without substantial and unreasonable interference and the rights of a defendant to use other land.

It was emphasised by the majority that a defendant will be liable in nuisance for a substantial interference with a plaintiff’s right to ordinary enjoyment of land if:

• the defendant’s use of the land is for a purpose that is not “common and ordinary”; or
• the defendant’s use of the land does not reasonably minimise the extent of the substantial interference with the plaintiff’s right to ordinary enjoyment of the land or was not “conveniently done”.

Although the reasoning in each of the judgments differ in respects, the case also highlights that the defence of statutory authority is not unqualified in the context of private nuisance cases and that it is a matter of proper statutory construction. Absent statutory authorisation or clear and unambiguous language to the contrary, the ordinary principles of private nuisance are paramount in determining liability.

Takeaway

If the nuisance is not expressly authorised by statutory authority or an inevitable result of the exercise of statutory powers, public authorities will be liable.

If you found this insight article useful and you would like to subscribe to Gadens’ updates, click here.

Authored by:

Lionel Hogg, Partner
Elizabeth Rudz, Graduate