
There is no doubt that in this day and age, fewer and fewer people know or have anything to do with their neighbours. Gone are the days of street parties held with the intention of keeping neighbourly relationships and keeping informed of what was going on in your local area. Community Facebook pages seem to have replaced the face-to-face contact we have, resulting in many of us passing our neighbours at the local shops, likely without even knowing it!
Seemingly, the need to communicate with neighbours now only really relates to matters that affect their property; like perhaps having your neighbour put your bin out whilst you are on holidays (if you are lucky to even be that close).
This raises the question as to what extent you owe a duty of care to your neighbour and when can you be sued for interfering with your neighbour’s use of their property?
Lord Atkin in the famous decision of Donoghue v Stevenson[1] established the “neighbour principle” where he found that one owes a duty of care to their neighbour; something which can be read literally in this sense. This principle extends to the duty of care employers owe to employees, road users owe to other road users, doctors owe to their patients etc.
The extent to which we owe a duty of care to our neighbours however, is not to guard against all risks of harm or, for that matter, to safeguard neighbours completely from all perils but rather, take reasonable care to avoid exposing neighbours to unnecessary risks of harm.[2]
Everyone is entitled to the use and enjoyment of their own land, so long as it does not unreasonably interfere with their neighbours use or enjoyment of theirs. It goes without saying that in the use or enjoyment of your own land, you must not damage your neighbour’s land or substantially interfere with their ability to enjoy the use of it.
It has previously been determined that for a claim by an affected neighbour to succeed, the interference needs to be substantial and unreasonable.[3] Affected neighbours have previously been successful in pursuing claims against their neighbours where the interference with their property has extended to encroaching tree roots[4], noise emanating from a property,[5] and flooding caused by the construction of a pool, for example.[6]
Recently, the District Court of Queensland considered a dispute between neighbours in Wishart where a timber retaining wall had been erected by a previous owner and on which the current owners of the property had placed at least three dead loads on top of the retaining wall, including soil, trees and a large deck. An engineer who considered the retaining wall noted that “… because of the known impact of tree roots on retaining walls, it is prudent to plant them at least 25 feet from a retaining wall”.[7]
The retaining wall deteriorated to a state where the timber fence was resting on the lower-level neighbours’ gutter on their house and restricted their access to their backyard.[8] Understandably, the impacted adjoining owners were rather upset by the interference they suffered to the use of their home.
The court concluded that such additional lateral pressures put on the retaining wall by these dead loads adversely impacted the stability and performance of the retaining wall and that in the absence of the lateral pressures, the retaining wall was unlikely to have failed.[9]
By failing to take action to prevent this situation from developing, the neighbours were found to be liable in nuisance and were required to contribute to the cost of a new concrete retaining wall.[10]
It has often been said that our homes are our castles and that we are free to use them as we choose, but the recent District Court decision demonstrates that when a neighbouring property is unreasonably impacted, courts will intervene to ensure that all is fair in the neighbourhood.
[1] [1932] AC 562.
[2] Finn v The Roman Catholic Trust Corporation for The Diocese of Townsville [1997] 1 Qd R 29 at 41.; and
Fangyuan v Stockwell [2024] QDC 200 at 88.
[3] SJ Weir Ltd v Bijok 112 SASR 127 at 135
[4] Malliate v Sharpe [2001] NSWSC 1057
[5] Oldham v Lawson [1976] VR 654
[6] Corbett v Pallas (1995) Aus Tors Rep 81-329
[7] [2024] QDC 200 at 148.
[8] [2024] QDC 200 at 65 and 127.
[9] [2024] QDC 200 at 151.
[10] [2024] QDC 200 at 182.

Associate Lawyer
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