Written by In the recent case of Hunt Leather Pty Ltd v Transport for NSW [2023] NSWSC 840, the NSW Supreme Court considered whether the interference caused by the construction of the Sydney Light Rail project from Circular Quay to Kingsford/Randwick constituted a nuisance. The project was due to be completed in March 2019, but due to extensive delays, it was not completed until March 2020. The plaintiffs claimed that Transport for NSW was responsible for the nuisance due to being the statutory authority that developed, planned, and organised the project.
The proceedings were commenced as a class action. The four lead plaintiffs included:
- Hunt Leather, which operated a retail store on George Street.
- Ms Sophie Hunt, who was the CEO of Hunt Leather.
- Ancio Investments, which operated a restaurant business on Anzac Parade in Kensington.
- Mr Nicholas Zisti, who was the sole director of Ancio.
Hunt Leather and Ancio pursued a private nuisance claim, while Ms Hunt and Mr Zisti pursued a public nuisance claim.
Private nuisance claim
Hunt Leather and Ancio submitted that the private nuisance was constituted by both the nature of the activities (involving heavy machinery, vibrations, noise, and dust), the presence of hoardings and the general restriction of pedestrian and vehicular movement, as well as the length of time that the work was being conducted outside their premises. The Court noted that interference by way of construction activities, such as reductions in vehicle or pedestrian traffic, are not by themselves a basis for nuisance. Nonetheless, the Court found that the extensive delays rendered that interference unreasonable, and therefore Transport for NSW should be held liable for the losses sustained.
Public nuisance claim
Ms Hunt and Mr Zisti claimed the public nuisance occurred by damage and obstruction of roadways and footpaths through road closures and the erection of hoardings. The Court noted that for a public nuisance claim to be successful, damage beyond the common injury to members of the public affected by the nuisance must be shown. Ms Hunt and Mr Zisti failed to demonstrate this, and therefore their public nuisance claim was unsuccessful.
This decision highlights the need to carefully consider the risks in planning and management of infrastructure projects likely to impact adjoining landowners.