Defences to private nuisance Flashcards
The Defence of Prescription
Where a private nuisance continues for 20 years, D may be entitled to claim a prescriptive right to engage in the relevant interference. - establish an easement
D must show that:
(i) The interference amounted to a private nuisance throughout the twenty-year period; and -
(ii) The interference must have been engaged in as of right: i.e., not secretly, forcibly, or without permission. - can be spotted by C, no suggestion of force or C hasnt told you, you cant do this
Sturges v Bridgman: for over twenty years D had used noisy machinery. C then built a consulting room situated near D’s machinery.
* Prescription failed as a defence. The nuisance began when C’s new building was erected.
The Defence of Statutory Authority
D must show that interference with C’s rights is permitted either by
(a) express wording in the statute or by (b) necessary implication. -
D can point to output of sovereign legislator and say parl has authorised this - judge must read statute closely
Metropolitan Asylum District Managers v Hill: issue – did statute authorise D to situate an isolation hospital (smallpox treated here) in a pleasant residential area? - strong public interest for treating small pox but ppl living near will be uneasy - obvious competing land uses
HoLs - this is a private nuisance
D granted conditional authority - ppl building hospital only override prop rights of inds where it is absolutely unavoidable - not nec to build hospital here can be built elsewhere
Tate & Lyle v Greater London Council: D (council) negligent in the design and construction of a ferry terminal, there was a statute authorising the construction of the ferry terminal as mass transit = important so public interest)
- Actionable priv nuisance but claimants could only recover 75% of their loses.
- A proper design would have still caused 25% of the interference (inevitable interference) suffered by C so not actionable
statute did not absolve greater london from need to have all reasonable regard and care
The Defence of Consent
Consent may be pleaded as a defence to private nuisance claims.
* Available where C, knowing of the danger to his or her property, has (by word or deed) shown willingness to accept the relevant risk(s).
The Partial Defence of Contributory Negligence
Trevett v Lee (dicta in a public nuisance case).
* Authority is ‘scant’ (Markesinis and Deakin’s Tort Law, 8th edn, 429).
* However, Markesinis and Deakin’s Tort Law (ibid, 430). - tend to associate this with negligence law, nothing in 1945 act on contributory negligence that rules out use of this partial defence in this area
Where D can arg that to the extent the C has failed to take reasonable care of their own interests, any remedy should be reduced
Trespassers and Private Nuisance
Act of a trespasser does not yield a defence where D knowingly or negligently continues the nuisance
(Sedleigh-Denfield v O’Callaghan). - D’s = monks, unknown to them and with no consent from them, Middlesex county council comes onto their property and puts in place a drain, a grate is placed over it to prevent it being blocked - that grating is prone to blockage - monks become aware of drain and tendency for it to be blocked, becomes locked then heavy rain and rain pours off D’s property onto claimants and does damage - is D liable? - yes
D had adopted the nuisance - done nothing to prevent
Coming to the Nuisance: - not a defence
Miller v Jackson (Court of Appeal Majority) - cricket case - C comes to nuisance (brought it on themselves)
* Ineffectual as a defence.
public benefit
not a defence
Adams v Ursell:
* Facts: a fish-and-chip shop in an area where residents enjoyed a high level of amenity.
* D argued that his business served the public interest (by making meals available to poorer residents).
* D’s argument was rejected. Public benefit is not a defence.
* While D’s attempt to rely on public benefit as a defence was unsuccessful, public benefit is relevant to the balancing exercise conducted in cases of interference with amenity.
More Than One Wrongdoer
not a defence
Thorpe v Brumfitt:
* It is no defence to argue that a private nuisance arose from the combined acts of different persons (and that D alone was not the source of the interference). - if involved then can be sued - may use law of contribution but can still be sued
The Planning Permission Cases
Gillingham BC v Medway (Chatham) Dock :
* Planning permission granted; former naval dockyard used as a commercial port.
* Consequently, the character of the neighbourhood was altered; amenity diminished.
* Buckley J held that the interferences suffered by C were not actionable. - grant of a planning permission was a defence (controversial)
Wheeler v Saunders:
* D obtained planning permission to build two housing units for pigs close to C’s property.
* Smell reduced C’s amenity.
* Trial judge and Court of Appeal (unanimously): actionable private nuisance.
* Not a strategic planning permission it only allows an intensification of an existing use, it is not publicly significant in the way the earlier Gillingham case was
- Planning permission need not preclude the possibility of bringing a private nuisance claim where only the interests of C and D are involved.
- Planning permission: grants of planning permission may preclude a claim where the public interest is being served.
- Cf Barr v Biffa Waste Management Services.
Coventry v Lawrence
* Lord Neuberger rejected Buckley J’s approach in Gillingham BC v Medway (Chatham Dock)
* Lord Carnwath endorsed Buckley J’s approach
* A majority in the Supreme Court took Lord Neuberger’s view.
- A broad conclusion on Coventry v Lawrence: the public interest - do not think a planning permission in terms of a defence, think of it as relevant to the grounds of a remedy
