In addition to statutory offence provisions, private landowners and others affected by the adverse effects of spray drift have the option of pursuing common law remedies, such as nuisance and/or negligence.
Such claims are, however, notoriously difficult and expensive to establish. This is because the burden of proof lies on the applicant to demonstrate, on the balance of probabilities, that a spray drift event was the cause of damage.
To establish that the pesticides in question drifted a specific distance and in sufficient quantities, significant evidence in the form of tests, expert reports, scientific modelling, photographs and oral evidence is required.
The legal hurdles for a successful prosecution or private landowner claim are high and there have been few successful actions relating to spray drift in Australian Courts. Having said this, a recent spray drift case in 2017 saw a farmer awarded $7 million in damages for losses caused by a neighbour’s negligent spraying.