Defences, Remedies, HRs and Private Nuisance

Question 1

who bears burden of proof for defences in PN?

Answer 1

D - they must establish, on balance of probabilities, that the relevant requirements can be satisfied

Question 2

what are the possible defences available in PN claims?

Answer 2

• prescription
• statutory authority
• consent
• contributory negligence
• act of a trespasser

Question 3

what are not defences to PN claims which have been discussed? (incl. 4 cases)

Answer 3

• coming to the nuisance (Miller v Jackson)
• public benefit - not a defence but relevant to the balancing exercise in amenity cases (Adams v Ursell)
• multiple responsibility, meaning cannot argue that a PN arose from the combined acts of different persons (Thorpe v Brumfitt)
• planning permission - relevant only to remedies (Coventry v Lawrence)

Question 4

planning permission cases in defences to PN (x3)

Answer 4

• Gillingham BC v Medway Dock - essentially turned planning permission into a defence
• Wheeler v Saunders - grants of planning permission may preclude a claim where public interest is being served; cases should, however, be brought before the courts regardless
• Coventry v Lawrence - rejected Buckley J’s approach in Gillingham; relevance to remedies

Question 5

prescription (incl. case)

Answer 5

• where a PN continued for 20 years, D may be entitled to claim prescriptive right to engage in the relevant interference
• to establish a prescriptive right, D must show that:
  1. the interference amounted to a PN throughout the 20yr period; and
  2. the interference must have been engaged in as of right: (a) not secretly, (b) forcibly, or (c) without permission
• Sturges v Bridgman - prescription failed as a defence as the nuisance at hand only began when C’s new building was erected <20yrs ago

Question 6

statutory authority (incl. 3 cases)

Answer 6

• D must show that interference with C’s rights is permitted either by (a) express wording in the statute or by (b) necessary implication
• private rights should be invaded only where it is necessary/unavoidable (Metropolitan Asylum District Managers v Hill)
• D will not be liable in PN for the inevitable results of the authorised activity (burden of proof on D) (Corporation of Manchester v Farnsworth, affirmed in Allen v Gulf Oil)

Question 7

2 cases which argue the statutory authority defence (incl. commentary)

Answer 7

• Allen v Gulf Oil - act of parliament allowed D to build an oil refinery which caused offensive noise, smell and vibrations to C’s property
• affirmation of Corporation of Mancester v Farnsworth approach as Lord Wilberforce states that in cases of statutory authority, the courts perform the exercise of weighing up public and private interests and make their decisions on that basis
• Lord Keith’s dissent was based around the contra preferentem rule, arguing that one could acquire the land but the Act did not authorise them to operate the land; Markesinis and Deakin viewed this analysis as ‘absurd’
• Tate & Lyle v Greater London Council - a proper design of the ferry terminal would have caused 25% of the interference suffered by C
• the statute did not absolve D from the need to have ‘reasonable regard and care for the interests of other persons’ (Lord Templeman)

Question 8

consent (incl. case)

Answer 8

• consent is available to be pleaded where C, knowing of the danger to his or her property, has (by word or deed) shown willingness to accept the relevant risk(s) (Leakey v National Trust - Megaw LJ (obiter))

Question 9

contributory negligence (incl. case, commentary and statute)

Answer 9

• contributory negligence could possibly yield a partial defence in PN (*Trevett v Lee (dicta))
• common law authority within this area is ‘scant’ (Markesinis and Deakins)
• however, they find that there is no reason to draw the conclusion that contributory negligence is precluded in PN, under the Law Reform (Contributory Negligence) Act 1945

Question 10

act of a trespasser (incl. 2 cases and commentary)

Answer 10

• act of a trespasser does not yield a defence where D knowingly or negligently continues the nuisance (Sedleigh-Denfield v O’Callaghan)
• in Sedleigh-Denfield Ds were said to have ‘adopted’ the nuisance by doing nothing to identify or prevent the risk at hand (Weir)
• ‘The obligation postulated in… Sedleigh-Denfield… was an obligation of reasonable care’ (Megaw LJ in Leakey v National Trust)

Question 11

overview of remedies in PN law (incl. case)

Answer 11

• C may recover damages for past harm (material damage), inconvenience (unreasonable interference with amenity) AND future (anticipated) harm
• C may return to court in respect of further interferences (Redland Bricks v Morris)