October 29, 2016

A retired Bribie Island couple was so incensed by the noise and disturbance from their neighbour, for four years they kept a daily record of the next door goings-on to prepare for filing a lawsuit against them.

A six-month “snapshot” of the entries recorded by Herbert Steer and his wife included times when their Pacific Drive neighbour used their rubbish bins, barbecue, air-conditioner or TV and when dogs barked.

Typical entries included “truck next door”; “mother out”; “out in boat”; “Iain starts mower at 6:10pm”; “Iain shovelling dirt in barrow”; “washing boating yard all day, cut trees”; “whipper snippering next door; and “next-door fishing 6:30am to 4pm”.

The nuisance makers – Jennifer McLellan and her adult son Iain – claimed they were merely enjoying their property in a “reasonable, common and ordinary” manner consistent with that of households in any Australian suburb.

Having become “prisoners in their own home” as a result of the Steer’s complaints, the McLellans stopped using their barbecue, rarely welcomed guests and even curtailed TV viewing.

When the matter came before her for a 5 day hearing, Judge Suzanne Sheridan agreed the “enjoyment of the

McLellan’s land has clearly been diminished by the change of lifestyle”.

She also considered Steer had become so “fixated” about the goings on next door that “everything appeared to have become an irritant to him”.

For that reason she rejected the reliability of the diary entries and of his testimony.

Despite asserting in the witness box that he had “never had an argument” with the previous occupants, Steer was forced to concede he had in fact sued them too in the Supreme Court.

And despite swearing in relation to other neighbours “he had not found them to have been noisy,” he accepted under cross-examination that he had serially complained: to one of them about noise within a week of them taking up house; and to another – “yelling and abusing” – about a barking dog.

The judge concluded that noise complained of – from barking dogs, odour from doggy do and smoke from a barbecue – “was not unreasonable in suburban living”.

A complaining neighbour must remember “there must be a measure of give-and-take; live and let live,” she poignantly observed. The injunctions Steer sought were refused.

Even if his complaints had been made out the “absolute curtailment of music, parties, video games and barbecues” was clearly untenable because it would “amount to an unreasonable and unwarranted restriction of the use of the McLellan’s land”.

The Steers were ordered to pay the McLellan’s legal costs.

Steer v McLellan [2016] QDC 260 Sheridan DCJ 14 October 2016

Categories: Litigation & Law Practice , Peter Carter , Civil procedure

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