Private Nuisance - Defences (Invalid & Valid)

Non Defences

Types

• Planning Permission

• C moved to the nuisance

• Public benefit / Utility of the nuisance

Non Defences - Planning Permission

Definition (AO1)

Only Parliament can take away private rights to sue (by primary or secondary legislation). Therefore, the mere grant of planning permission (which is granted by local authorities and not Parliament) does not legitimise a nuisance.

• Terms of PP may be relevant evidence as to what is/is not substantial interference

• PP may mean that an injunction is not granted.

Non Defences - Planning Permission

Case (AO3)

(Wheeler v Saunder)

A farmer obtained planning permission to build a pig unit on his land. The owners of some holiday cottages on adjacent land complained of the smell and noise. Farmer was not allowed to claim in his defence that he had Planning permission.

However, the grant of planning permission can operate to change the character of the neighbourhood, which is a consideration when deciding whether an interference with amenity is unlawful.

Non Defences - C moved to the nuisance

Definition (AO1)

In a nuisance case, it is not relevant whether the activity existed when the C moved into the area or afterwards. The law of nuisance is based on the idea that the right to quiet enjoyment is ongoing, and that an activity is a nuisance regardless of when it started.

Prevents the rule of “once noisy, always noisy” - Allows for development

Non Defences - C moved to the nuisance

Case (AO3)

(Miller v Jackson)
Ds were members of a cricket club. Cricke thad been played at the ground for over 70 years. C bought a house and brought action against the club, seeking an injunction to prevent them playing cricket at the ground.

Initially many balls were hit in C’s garden however, the club erected a higher fence which reduced the number of balls to 9 in a 2 year period. There was evidence that C had acted with hostility aimed at the club and its members.

Held that Ds were liable in both negligence and nuisance.

No defence to say that cricket was a social benefit and that C moved to the nuisance, however the social benefit prevented an injunction and only compensation was granted.

Non Defences - Public Benefit / Utility of the nuisance

Definition (AO1)

If an activity is for the benefit of the public, it is irrelevant to the existence of a nuisance. Whether an activity has social benefit will impact on the remedy and may mean an injunction is refused.

Non Defences - Public Benefit / Utility of the nuisance

Case (AO3)

(Adams v Ursell)

Local fish & chip shop was in a residential area - excessive smell amounted to a nuisance. Although the shop was found to provide a social benefit (i.e. employment, convenient food etc.) it was still deemed to be a nuisance & an injunction was given.

Valid Defences

Types

1. Prescription

2. Statutory Authority

3. Consent

Valid Defences - Prescription

Definition (AO1)

The effect of prescription is that the D has acquired the right to commit the nuisance. The defence is rarely available, however, as the interference must have been actionable by the particular claimant for at least 20 years

The D must show that he has been continuing the nuisance for a period of at least 20 years against the C.

Valid Defences - Prescription

Case (AO3)

(Sturges v Bridgman)

D ran a confectionary shop which operated a noisy pestle and mortar. D operated this for over 20 years but had no neighbouring property so there were no complaints.

C then built a consulting room for his practice asa doctor near the noisy shop.

C brought action to obtain an injunction.

Held that the nuisance only arose when it affected the practice and so the 20 years prior did not contribute to the prescription.

Valid Defences - Statutory Authority

Definition (AO1)

Sometimes a statute will permit a D to commit a nuisance and therefore its use can not be unlawful however much it interferes with neighbours amenity. In such cases, the D may be able to rely on the defence of statutory authority if it can show that the nuisance was an inevitable result of doing what the statute authorised.

i.e. Tips & Oil Refineries

Valid Defences - Statutory Authority

Case (AO3)

(Allen v Gulf Oil)

Oil company was authorised by an Act of Parliament to construct an oil refinery in a particular location. Local residents complaned about the noise and vibrations emitted from the refinery.

The oil company was able to plead statutory authority as a defence on the basis that the operation of the refinery is implicitly authorised by the Act and the nuisances are therefore inevitable. (So a lawful interference)

Valid Defences - Consent

Definition (AO1)

If D can show that C has willingly agreed to accept the interference, then C's claim in nuisance will fail.