Nuisance – Unreasonable Interference with Use and Enjoyment of your Property
11 December 2024

A legal nuisance refers to a situation where an individual or entity engages in activities or behaviours that interfere with the use and enjoyment of another person's property or their right to live in a peaceful and healthy environment. The action for private nuisance protects a person’s right to the “use or enjoyment of an interest in land, or of some right over or in connection with it”.


Some common examples of private nuisances in New Zealand might include:

  • excessive noise: such as loud music, machinery, or construction work that disrupts a neighbour's peace and quiet
  • overhanging branches or encroaching structures: trees or buildings on one person's land extending onto another person's property
  • pollution: contaminated runoff from one property affecting the water quality of a neighbouring stream or river; or
  • offensive odours: odours emanating from a nearby factory, landfill, or agricultural operation that impact neighbouring properties.


Whereas trespass to land is confined to intrusions upon land that follow directly upon the defendant’s act, the tort of private nuisance provides a remedy in respect of indirect or consequential interference with land. In addition, while trespass to land is actionable per se without proof of damage, nuisance, as an action on the case, requires proof of actual or imminent harm. Private nuisance is defined as a recurrent or persistent activity or state of affairs causing a substantial and unreasonable interference with the claimant’s land, or with their use or enjoyment of that land.


In order to constitute an actionable nuisance, the interference with the plaintiff’s use and enjoyment of land must be substantial and unreasonable. Almost all human activity involves some risk of harm, discomfort, or annoyance to others, and everyone must put up with a certain level of such interference as a normal and accepted incident of living in an organised society in close proximity to others. The function of the tort of private nuisance is to strike a fair and workable balance between the conflicting claims of neighbouring occupiers of land, “each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interest of the other”.


The appropriate balance is struck by reference to the standard of “unreasonableness”. Sometimes, this standard is expressed as a principle of “reasonable user”, which emphasises the right of every occupier to put land to any ordinary and reasonable use, having due regard to the fact that there is a neighbour, and asks whether the defendant has abused or exceeded that right. More often, it is expressed in terms of the neighbour’s right to be free from an unreasonable level of interference with the protected interest in the use and enjoyment of land. The court asks whether the interference suffered exceeds what a normal occupier in the plaintiff’s position could reasonably be expected to tolerate.


The right to the beneficial use and enjoyment of land is an expansive one; therefore, actionable harm takes a wide variety of forms. It may consist of encroachments from the defendant’s land, as where tree branches overhang neighbouring land or tree roots grow into a neighbour’s soil. Physical damage to the land itself, or to plants growing on the land, or to buildings and structures on the land obviously interferes with the occupier’s right to use and enjoy their land and qualifies as actionable harm. Causing an occupier to suffer personal discomfort from smells, smoke, or noise may also constitute an actionable nuisance. Private nuisance covers a wide range of harms, but the key unifying feature of the tort resides in the general kind of harm that is caused rather than any particular class of conduct.


To establish a legal nuisance claim in New Zealand, the following elements generally need to be proven:

  • interference: the activity or condition in question must interfere with the use and enjoyment of the affected property or affect a significant number of people
  • unreasonableness: the interference must be unreasonable, meaning that a reasonable person would find it objectionable or intolerable under the circumstances
  • causation: the defendant's actions or negligence must be the direct cause of the nuisance; and
  • damage or harm: there should be actual harm, loss, or damage suffered by the affected party.


Remedies for nuisances in New Zealand can include:

  • an injunction: court order to stop the offending activity or condition
  • damages: compensation for any harm or loss suffered by the affected party; and/or
  • abatement: the removal or elimination of the nuisance by the responsible party.


If you believe you are experiencing a legal nuisance or are accused of causing one, we advise you to consult with a lawyer who can provide guidance and assistance based on the specific circumstances of your case.


For more information, please contact Brett Vautier, Mitch Singh, Paul McKendrick, or Paul Kim.


5 October 2026
Many people spend time preparing a will, but far fewer consider what would happen if they were still alive but unable to make decisions for themselves. An Enduring Power of Attorney (EPA) is an important legal document, which enables you to appoint another person (known as your attorney) to make decisions for you if you become mentally incapable of doing so yourself. Like a will, an EPA can be updated as your circumstances change. Like insurance, an EPA may never be needed, but it provides important protection should the unexpected occur. There are two types of EPA. The first relates to property and the second relates to personal care and welfare matters. Property Attorney Your property attorney will make decisions relating to financial assets; that is arranging benefits, paying bills, looking after bank accounts, and buying and selling assets (selling the family home to pay for care for example). You can appoint any number of people to act as a property attorney together or separately, and/or appoint attorneys in succession if you think that is a sensible idea too. You can also elect whether the EPA for property is to take effect immediately and then endure past the point you have lost capacity, or whether it is to take effect only in the situation where you have lost capacity. An EPA that takes effect immediately can be useful if you are travelling overseas or are physically unable to manage aspects of your affairs yourself. While you retain capacity and you remain able to continue managing your own affairs, your attorney’s role is generally to assist rather than take over. Personal Care and Welfare A personal care and welfare attorney will make decisions relating to your health and wellbeing such as your medical treatment, living situation, what level of care you receive, and the like. You can only appoint one attorney at a time as a personal care and welfare attorney. However, like the EPA for property, you can also appoint attorneys in succession. The EPA for personal care and welfare will only ever take effect in the situation where you have lost capacity. What Happens if you do not have an EPA? If you lose capacity and have not appointed an attorney, your spouse, partner, children, or relatives may discover they are unable to access bank accounts, manage investments, sell property, sign legal documents, or make certain healthcare decisions. This is mostly because financial institutions and government agencies generally require proper legal authority before allowing another person to act on your behalf. Without an EPA, family members may need to apply to the Court for orders appointing a property manager to manage your financial affairs and/or a welfare guardian to make personal care and welfare decisions. This process can be a stressful, an expensive, and a time-consuming exercise at a time when stress levels are already high. Things to Think About when Preparing your EPA The sorts of things you need to think about when preparing your EPAs are: Who you would want as your property attorney(s) and any successor attorneys. Who you want as your personal care and welfare attorney and any successor attorneys. Whether you wish to impose any conditions on your attorney. Whether you wish to require your attorneys to consult or provide information to named persons. In relation to your property attorney, whether you authorise your attorney to use your property for their own benefit or the benefit of any other person. In relation to your property attorney, whether you authorise your attorney to use your property to provide gifts (either to family or charities).  It is also important to be aware your EPA needs to be signed and witnessed in the presence of either a lawyer, registered legal executive, or an authorised officer of a trustee corporation for your EPA to be valid. Proposed Changes to the Legislation The Law Commission has recommended replacing the current Protection of Personal and Property Rights Act 1988, which governs EPAs, with an entirely new Act. The Government has accepted the central recommendation to replace the legislation and has indicated substantive reform work is a priority. We do not know precisely what those changes (if any) will look like, but the proposed reforms are summarised as follows: More emphasis on your wishes: Under the current framework, attorneys are often guided by what they think is in your best interests. The proposed reforms would place much greater weight on your own wishes, values, beliefs, and preferences. That may mean that rather than simply appointing an attorney, you may be encouraged to leave more detailed guidance to your attorneys. The attorney’s role may be more focussed on carrying out what you would have wanted rather than them deciding what they think is best. A new supporter role: The proposed reforms establish the creation of a formal supporter whose job is to help a person understand information, weigh options, and communicate decisions without actually making the decision for that person. Capacity may be viewed more flexibly: The reforms recognise capacity is not always all or nothing. The new framework is expected to allow more tailored arrangements rather than completely removing a person’s decision-making authority. Greater safeguards against abuse: Future reforms are likely to strengthen oversight and accountability for attorneys by introducing better record-keeping requirements, clearer obligations on attorneys, and potentially a voluntary register of EPAs. Summary EPAs are not just documents for the elderly. Accidents, illnesses, and unexpected medical events can affect anyone at any stage of life. By putting an EPA in place, you retain control over who will make decisions for you if you cannot make them yourself and, having EPAs in place, can reduce stress for your family in the event you lose the capacity to make decisions for yourself. The Law Commission’s review of the legislation is a good reminder of just how important EPAs are, and we are of the view that ensuring they are in place is of the utmost importance. That being said, the current EPA system is effective and still one of the most important estate planning documents available. If you are interested in learning more about EPAs and the importance of them or would like to discuss putting them in place, please reach out to one of the team members at Glaister Keegan. We would be happy to assist you.
31 August 2026
We're pleased to introduce Zak Nasir , Senior Associate in our Land Development and Commercial Property team. Zak brings a unique blend of legal and planning expertise, helping clients navigate some of New Zealand's most complex property and development projects. With extensive experience in land development, subdivisions, commercial property and resource management matters, Zak advises developers, private clients and infrastructure providers on all aspects of property acquisition, development structuring, subdivision, leasing and disposal. His practice spans projects of all sizes, from boutique developments through to major residential subdivisions involving hundreds of lots. Before becoming a lawyer, Zak worked as a town planner, giving him a valuable understanding of the planning and development process. This background allows him to identify potential issues early and provide commercially focused, practical advice throughout the life of a project. Clients and colleagues alike value his ability to bridge legal, planning and development considerations to achieve successful outcomes. He has previously worked in London as a lawyer and most recently at a large top tier firm in Auckland. Throughout his career, Zak has advised on significant commercial property transactions, large-scale development projects, leasing arrangements and Public Works Act matters. He is known for his pragmatic approach and his ability to work collaboratively with surveyors, engineers, planners and government agencies to resolve complex issues efficiently. Whether assisting first-time developers or experienced industry participants, Zak is committed to delivering clear, practical solutions that help clients move forward with confidence. We are delighted to have him as part of the Glaister Keegan team and look forward to the continued value he brings to our clients and colleagues. Contact: zak.nasir@glaister.co.nz
31 August 2026
Alternative Holidays Current system If the full-time employee works on a public holiday that is an OWD, they get one full alternative holiday , no matter how many hours they worked. The full-time employee must take their leave on another OWD. The full-time employee can cash their leave up after 12 months. Proposed new system The full-time employee earns alternative holiday hours , matching the number of hours they worked (or were on call and called in) on the public holiday. The full-time employee can take the hours on any day they could normally work . The full-time employee can cash their hours up at any time . Leave Payments Current system Leave payments require multiple calculations to account for variable hours and payments. Annual leave taken soon after parental or volunteer leave is paid at a lower rate . Proposed new system All leave is paid at an hourly rate , based on the lowest hourly rate payable for the day the leave is taken plus an average for piece‑rate work. Fixed allowances are paid in full during leave. Annual leave after parental or volunteer leave is paid normally . Leave Compensation Payments (Replacing “Pay as You Go”) Current system Employers and workers can agree to “Pay as You Go” (8% of gross earnings) for casual short‑term work. Proposed new system A Leave Compensation Payment (LCP) of 12.5% of a worker’s ordinary hourly rate is paid on all casual hours . Workers with standard hours also get LCP on additional hours they work, instead of accruing annual or sick leave on those hours. Fixed‑term workers earn leave from day one . For more information please contact Brett Vautier and Paul McKendrick.
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