The High Court of Australia has delivered its long-awaited judgment in the Sydney Light Rail appeal, a significant decision concerning the impact of large-scale public construction works on surrounding landowners and occupiers.

The proceedings arose from complaints by businesses along the route of the Sydney Light Rail, that the construction of the Light Rail caused substantial interference with the use and enjoyment of their premises, including through sustained noise, dust, hoardings, barricades and restrictions on access during the construction period.

At first instance, the New South Wales Supreme Court held that Transport for NSW was liable in private nuisance for part of the construction period. Our article on that decision is available here.

In October 2024, the New South Wales Court of Appeal overturned that decision. Our article on that decision is available here.

In Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53, the High Court reaffirmed the principles governing liability in private nuisance and clarified their application to large-scale public construction works.

The High Court confirmed that the proper test for liability in private nuisance arises from a substantial interference with a plaintiff’s right to land; where the interference involves a defendant using its land for a purpose that is not common and ordinary, or where a common and ordinary use does not reasonably minimise the substantial interference with the plaintiff’s ordinary enjoyment of its own land.

Despite some disagreement between the parties and within the High Court as to whether the construction of the Sydney Light Rail constituted a “common and ordinary” use of the road, the majority held that constructing a light rail was a materially different and more intensive use of the land compared to ordinary road use, maintenance or repair. The majority also held that Transport for NSW was not fully protected by either the common law defence of statutory authority or the statutory protections in s 43A of the Civil Liability Act 2002 (NSW). This was because it did not exercise any “special statutory power” within the meaning of s 43A and the statutory authority defence only extended to interference that was an inevitable consequence of exercising its powers.

Against that legal background, the majority held that:

• The construction of the Sydney Light Rail caused substantial interference with the ordinary enjoyment of land by Hunt Leather and Ancio;
• Transport for NSW failed to discharge its onus of establishing that it planned and procured the works in a manner that reasonably minimised the extent of that substantial interference, for the extended period of the works that was in issue; and
• Transport for NSW was therefore liable in private nuisance for that period, notwithstanding that the construction of the Sydney Light Rail was authorised by statute and undertaken in the public interest.

The High Court’s decision is likely to prompt careful consideration by statutory bodies and principals alike who are involved in planning, developing, and constructing projects which interfere with a neighbour’s ordinary enjoyment of its land.

The judgment is available here.