WHITE PAPER
Private Nuisance Reimagined
A New Risk Landscape for Construction Projects
May 2026 • 10-minute read time
“Prolonged construction impacts can constitute actionable private nuisance - even where projects are authorised and carried out with reasonable care.”
– High Court of Australia, Hunt Leather v Transport for NSW (2025)
Essential reading for:
Project owners & principals
Risk allocation and governance
Contractors & developers
Claims strategy
Legal & insurance advisers
Coverage intent and program
Hunt Leather Pty Ltd v Transport for NSW
High Court of Australia
2025
The decision reinforces a key principle: duration, mitigation and control are central to assessing nuisance risk.
BACKGROUND
The Hunt Leather decision
The case arose from the Sydney Light Rail project, one of the most disruptive infrastructure developments undertaken in the Sydney CBD. Affected businesses alleged that prolonged noise, dust, access restrictions and delays materially interfered with the use and enjoyment of their premises.
While disruption was anticipated and compensation frameworks were in place, the project extended beyond the originally communicated timeframes.
The High Court ultimately confirmed that Transport for NSW could be liable in private nuisance for part of the construction period.
WHAT THE HIGH COURT CLARIFIED
The modern test for private nuisance
The Court reaffirmed a structured test grounded in the principle of “give and take, live and let live”.
Statutory authority defence
The decision also constrains reliance on statutory authority protections.
Key clarifications include:
01
Protection applies only where interference is an inevitable consequence of exercising statutory power.
02
Prolonged disruption linked to planning, sequencing or execution may fall outside this protection.
03
Claims may arise from how works are carried out, not merely the existence of statutory authority.
This represents a meaningful shift in exposure for project owners, government entities and PPP participants.
Why this is a risk shift
The decision highlights several emerging themes:
Duration matters
Expected impacts may become actionable.
Mitigation is critical
Courts assess reasonable steps.
Economic loss exposure
BI claims may succeed.
BI claims may succeed
Extends beyond contractors.
Insurance considerations
The ruling has implications across key insurance classes:
Public & Products Liability
Broader scrutiny of nuisance-related exposures, particularly on long-duration projects
Greater mportance of definitions such as “property damage” and “occurrence”
Contract Works / DSU
Continued limitation to physical damage triggers
Potential for gaps where disruption occurs without physical loss
Principal-Controlled Programs
Increased focus on how owner and contractor policies interact
Greater need for clarity in coverage intent and allocation
Contracting and risk allocation
In response, market practice is likely to evolve, with increased focus on:
- Neighbour impact management and monitoring
- Allocation of delay and disruption risk
- Express treatment of nuisance-related liabilities
- Alignment between contractual risk allocation and insurance coverage
How these elements interact will be central to managing disputes and project outcomes.
KEY CONSIDERATIONS
Prolonged disruption should be treated as a foreseeable project risk
Nuisance exposure may arise even where works are lawfully authorised
Insurance is only one component of risk management
Early identification and mitigation strategies are critical
Conclusion
The Hunt Leather decision signals a shift in how nuisance is assessed in the construction context. It reinforces the importance of proactive risk management, particularly in complex, urban infrastructure environments.
For industry participants, the focus is likely to shift toward integrated approaches that combine planning, stakeholder engagement, contractual clarity, and insurance strategy to manage this evolving risk landscape.
© 2026 Lockton Companies Australia Pty Ltd. ABN 85 114 565 785 / AFSL 291 954
The contents of this publication are provided for general information only. Lockton arranges the insurance and is not the insurer. While the content contributors have taken reasonable care in compiling the information presented, we do not warrant that the information is correct. The contents of this publication are not intended as a legal commentary or advice and should not be relied on in that way. It is not intended to be interpreted as advice on which you should rely and may not necessarily be suitable for you. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content in this publication.