Whether you are aware of it or not, every person who owns land has an obligation to their neighbours not to interfere with their land or cause damage to their land or any structures or crops being grown on it. This is based on legal principles like nuisance and negligence and for certain activities if prescribed by legislation.
Spray drift is one such issue where broadacre farmers, winemakers and market gardeners can potentially run in to trouble. As well as owing an obligation to neighbours not to cause a nuisance to them or their land, the Agricultural and Veterinary Products (Control of Use) Act 2002 imposes a general duty on any using an agricultural product or fertiliser to take all reasonable and practicable measures to prevent or minimise actual or potential contamination of other land, animals or plants that it not trivial.
Where spray drift occurs as a result of a person not taking the necessary precautions to avoid damage to neighbouring properties and any animals or plants on it, the financial consequences could potentially be significant.
A more recent case in Victoria, Butler Market Gardens Pty Ltd v GG and PM Burrell Pty Ltd, involved a claim for damage caused to the a spring onion crop as a result of spraying. In determining that this constituted a substantial and unreasonable interference with the use and enjoyment of the land, they concluded that the neighbour failed to take reasonable precautions and did not take reasonable care to avoid the risk of herbicide spray damage to the spring onion crop. The neighbour who was ordered to pay over $1 million in damages and $375,000 in consequential loss, plus legal costs
It is worth noting that in considering the issue, the Court looked at issues such as whether the crop was damaged prior to the spray; whether the weather conditions were conducive to spray drift; whether the crop was damaged as a result of the spray drift; and whether there was a failure to take precautions against the risk of spray drift.
This highlights the importance of record keeping when spraying crops, so as to ensure this information is available for the Court should you ever find yourself in a situation where crops have been damaged as a result of spray drift.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.