High Court of Australia provides guidance for navigating public nuisance claims

The case, Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53, involved claims brought by local businesses located along the corridor of the SLR project for private nuisance caused by the prolonged construction period of the project.

The High Court considered whether Transport for New South Wales (TfNSW) could rely on its statutory authority or section 43A of the Civil Liability Act 2002 (NSW) (Act) to avoid liability. The decision underscores the complexity involved when managing risks associated with project delays, statutory powers, and neighbour impacts during major public infrastructure projects.

In its judgment, the High Court addressed, firstly, when interference with adjoining land during construction becomes actionable as private nuisance, and secondly, whether a public authority can invoke statutory authority or section 43A of the Act to defend against liability when it does.

The High Court reaffirmed that, under Australian law, private nuisance requires a substantial and unreasonable interference with the complainant’s use and enjoyment of the land, based on the severity and duration of the interference, balanced against what a normal occupier should reasonably tolerate. This test is different from other jurisdictions, such as the United Kingdom, which instead focus on whether the use of the land is “uncommon”. Applying the Australian test, the High Court held that the construction of the SLR project caused substantial interference with the business owners’ use and enjoyment of the land amounting to private nuisance for part of the construction period.

When considering the question of statutory authority, Gageler CJ stated: “except where a public authority can demonstrate it to be the inevitable result of the exercise of the power authorised by the statute, a substantial interference by the public authority with the use and enjoyment of neighbouring land is ‘either not actionable at common law or else outside the protection of the statute’.”

TfNSW failed to prove that it acted with reasonable regard for neighbouring users of land during delays caused by the project, or that the delays were inevitable. The High Court held that section 43A of the Act did not apply because the nuisance claim was not “based on” the exercise of a special statutory power.

This decision offers practical considerations, including that:

• extended occupation of public roads and prolonged disruption can trigger liability even for authorised works;
• authorities and contractors must adopt proactive measures to minimise interference caused by works, including robust utility investigations and realistic programming;
• approval or authorisation does not confer blanket immunity;
• compliance with implied conditions of reasonable care remains essential; and
• allocation of delay risk and incentives for timely completion should be carefully structured to avoid liability exposure.

Co-written by Cormac Mercer of Pinsent Masons.