Defences

Question 1

Prescription

Answer 1

20 years since interference began

Not secretly, forcibly or without permission

1) D must not abuse his/her private right
2) D must carry on his activity in a way that causes the least practical interference
- Shoreham UDC

3) Can apply to nuisances arising from noise (Coventry v Lawrence)

Question 2

Statutory Authority

Answer 2

Either by

1) Express working of a statute
2) Necessary implication

Metropolitan Asylum Direct v Hill: mental hospital in a nice area
Held: is a nuisance, only there by conditional authority so not enough for the defence
Private rights should only be interfered where is is NECESSARY to do so (Geddis)

No liability can occur for inevitable interferences (Allen v Gulf Oil)

Question 3

Planning Permission

Answer 3

Planning authority can, through its development plans and decisions, alter the character of a neighbourhood

Gillingham v Medway: dockyard for economic revival; vs
Barr v Biffa Waste

Met with controversy in Coventry v Lawrence as differing opinion on whether the Gillingham approach should be adopted

Question 4

Contributory Negligence

Answer 4

Partial defence to PN (Travett v Lee)

Question 5

Consent

Answer 5

Full defence
Available where C, knowing of the danger to his property has (by word or deed) shown willingness to accept the relevant risks (Leakey v National Trust)

Question 6

Coming to the Nuisance

Answer 6

Had been defence (Miller v Jackson) cricket case

Not any longer (Coventry v Lawrence)

Question 7

Multiple Responsibility

Answer 7

Only liable if made a “substantial contribution to harm” (Thorpe v Brumfit)

Question 8

Measured duty of care

Answer 8

If act of god, also need measured duty of care (lightening fire tree case)

Holbeck v Scarborough: erosion. Held D should have followed advice from the geologists. Duty arises when:

1) The defect is known
2) Hazard or danger to C is reasonably foreseeable
3) Fair, just and reasonable (Caparo)