Private nuisance - defences

Question 1

Defence of prescription (1)

Answer 1

o Where a private nuisance continues for 20 years, D may be entitled to claim a prescriptive right to engage in the relevant interference e.g. easement
o D must show:
1. The interference amounted to a private nuisance throughout the twenty year period
2. The interference must have been engaged in as of right i.e. not secretly, forcibly or without permission
o Sturges v Bridgman
 For over 20 years D had used noisy machinery – C built a consulting room situated near D’s machinery
 Prescription failed as a defence – nuisance only began when C’s new building was erected

Question 2

Defence of statutory authority (4)

Answer 2

o D must show interference with C’s rights is permitted either by a) express wording in the statute or b) necessary implication
o Metropolitan Asylum District Managers v Hill
 Did statute authorise D to situate an isolation hospital for contagious people in a pleasant residential area?
 Hospital located in this area would be a private nuisance – D had been granted a conditional authority but private rights should only be invaded where it is necessary to do so – location of hospital was not necessary, could have been located somewhere else
o Geddis v Bann Reservoir Proprietors
 It is permissible to override the rights of individuals but only where it is necessary to do so – D bears burden of proof
o Corporation of Manchester v Farnsworth
 D will not be liable in private nuisance for the inevitable results of the authorised activity
o Allen v Gulf Oil
 1965 gulf oil secured a private Act of Parliament
 ‘It is essential that further facilities for the importation of crude oil and petroleum products should be made available
 Gap in legislation – acquisition of land authorised, construction work authorised, but no express authority to use the refinery
 Refinery did not go down well with locals – private nuisance action is brought
 Approved Farnsworth approach – where Parl has authorised a certain thing to be done no liability can arise for inevitable interferences
 Invoked contra preferentem rule 0 Act should be construed against party (d) seeking to rely on it
 The operation of the plant refinery was authorised by necessary implication – intention of Parl was that the refinery operated

Question 3

Defence of consent (1)

Answer 3

o Available where C, knowing the danger to his/her property, has (by word or deed) shown willingness to accept the relevant risk – Leakey v National trust

Question 4

Partial defence of contributory negligence (2)

Answer 4

o If through carelessness, you have acted in ways resulting in you suffering harm, you are personally responsible for the harm you suffer
o Trevett v Lee
o Markesinis and Deakin
 Find no reason to draw the conclusion that partial defence of contributory negligence is precluded in private nuisance

Question 5

Trespassers and private nuisance (1)

Answer 5

o Act of trespasser does not yield a defence where D knowingly or negligently continues the nuisance
o Sedleigh-Denfield v O’Callaghan
 Land under control of monks – local authority enter the land – trespass
 Put a drain which carries water across the land – drain become blocked
 Water floods from monks land to claimant’s property
 The monks were aware that the drain was blocked and did not take reasonable steps to prevent this – the act of the trespasser does not yield a defence where D knowingly or negligently continues the nuisance

Question 6

Coming to the nuisance (1)

Answer 6

o Ineffectual as a defence
o Miller v Jackson
 D’s cricket club balls were impacting claimant’s property – held to be actionable private nuisance
 Could not get injunction as cricket was socially useful
 Lord Denning (dissenting) tried to argue coming to the nuisance provides a defence – was rejected
 Claimant did not sign up to being subjected to the nuisance by purchasing the neighbouring house to the cricket club – coming to nuisance no defence

Question 7

Public benefit (1)

Answer 7

o Adams v Ursell
 Fish and chip shop in area of high amenity
 D argued business served public interest by making meals available to poorer residents at minimal cost – argument rejected
 Multifactorial balancing exercise – may be possible for D to argue providing fish and chips had some public benefit and invite judge to ascribe weight to that but it is NOT a defence to relive D of liability
 Only a consideration not a defence

Question 8

Multiple responsibility (1)

Answer 8

o 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

Question 9

Planning permission as a defence (3)

Answer 9

o Gillingham BC v Medway (Chatham) Dock
 Planning permission granted – former naval dockyard used as commercial port
 Character of neighbourhood was altered – amenity diminished
 Interferences suffered by C were not actionable due to the planning permission
 Judge treats planning permission as a defence – it has strategic benefit to create jobs and boost economy
o Wheeler v Saunders
 D obtained planning permission to build two housing units for pigs close to C’s property.
 Smell reduced C’s amenity.
 Concluded it was actionable private nuisance, not strategic planning permission.
 It does not advance public interest, it is rather extending the use for the land. Distinction between two cases – does the planning permission have strategic significance or is it modest?
 Principle – if claim is concerned with interaction between C and D it is a private nuisance
 Policy – if public interest is being served, planning permission may be a defence
o Coventry v Lawrence
 Should not see planning permission as a defence – if it serves the public interest it is only relevant to the grant of the remedy