The Supreme Court of Western Australia has dismissed a claim in private nuisance brought by a private day hospital against a neighbouring gymnasium in the case of Perth Day Hospital Pty Ltd v Fitness Cartel Western Australia Pty Ltd [No 3] [2026] WASC 314.
The decision discusses the thresholds relating to nuisance, the extent to which a plaintiff’s specialised or hypersensitive requirements can restrict a neighbour’s ordinary use of its land, and what constitutes an ordinary use of land.
Perth Day Hospital Pty Ltd (the Hospital) spent significant sums fitting out its premises within a commercial strata complex on Scarborough Beach Road, Osborne Park and commenced operating a specialised pain management and endoscopy day hospital from the premises. The Hospital’s medical practitioners performed delicate procedures in the day hospital, which included inserting needles into the spines and nerves of patients.
The third defendant, Fitness Cartel Osborne Park Pty Ltd (the Gym), operated a gymnasium from a strata unit directly above the Hospital. The Gym’s premises were comprised of various training zones, including a dumbbell and deadlifting/squat zone, and a ‘HYROX’ zone for high intensity training.
The Hospital brought an action in private nuisance against the Gym, alleging that loud music and vibrations from dropped weights and exercise machines substantially and unreasonably interfered with the operation of the day hospital.
The Hospital initially succeeded in securing an injunction temporarily restraining the Gym’s noise and weightlifting activities during the Hospital’s operating hours, pending trial.
A plaintiff claiming private nuisance must clear several hurdles before a court will permanently intervene in a neighbour’s property rights. The Court evaluated the case across two key issues:
1. Is the plaintiff's use of the land 'ordinary' for the locality?
The Court confirmed that one must assess whether the plaintiff’s use is an 'ordinary use of land'. It is against the ‘ordinary use’ of the land that the interference must be assessed.
The ’ordinary use’ is determined objectively by reference to the established habits, reasonable expectations, and character of the specific geographic area.
It is the plaintiff’s use (the Hospital), rather than that of the defendant (the Gym), that must be assessed.
2. Is the interference substantial and unreasonable?
One then considers whether there is a substantial and ongoing interference with the ‘ordinary use’ of the plaintiff’s land. The focus of this question is on the diminution in the utility and amenity value of the land itself, rather than the personal discomfort of, or personal injury to, the persons on the plaintiff’s land.
In this case, the commercial strata complex was located in a heavily urbanised, non-residential, light industrial precinct, surrounded by showrooms, automotive yards, and a busy four-lane thoroughfare.
It was revealed that the Gym’s unit had historically been used as a gymnasium, and the Hospital’s unit had previously been used for standard commercial administrative offices, and even as a bowling alley.
The Court was of the view that the establishment of a day hospital was a significant change to the previous use of the Hospital’s premises from a standard Class 5 commercial office to a Class 9a health care facility. This change represented a profound structural and environmental transformation to an exceptionally delicate use.
The Court accepted that between December 2025 and April 2026, the Gym’s operations had not been ‘conveniently done’, meaning that reasonable measures to mitigate noise and vibrations had not been implemented in relation to the Gym’s own ‘ordinary use’ of its premises, in this case, as a gymnasium. During that period, the threshold of nuisance had been reached.
However, the Gym had since implemented mitigating measures which reduced the noise and vibrations to an insubstantial dull thud. The mitigating measures included the installation of multi-layered plywood, secondary high-density rubber tiling, and specialised vibration-reducing nodules. The Gym also implemented procedures to monitor the behaviour of its clients and installed signage to prohibit the dropping of weights.
The Court held that there was no ongoing or threatened interference with the Hospital’s ‘ordinary use’ of its premises at the time of trial and noted that the Hospital’s use of its land was abnormally sensitive because of its strict requirements for performing delicate medical procedures.
As such, the introduction of an abnormally sensitive day hospital into an established commercial and industrial area was not considered to be an ‘ordinary use’ of the land.
An owner who proposes to change the use of its premises to a more sensitive use, even with all necessary planning approvals and permits, may not be able to constrain its neighbours from the use of their own premises in a manner that may interfere with that more sensitive use.
This consideration should form part of any buyer’s or tenant’s due diligence on any premises that it seeks to secure.
This article was written by Michael Stone, Senior Associate and Fabrice Lincoln, Partner, Real Estate.