U2 AOS1 - Defences to Nuisance

Question 1

Lack of elements

Answer 1

• The defendant can argue that any or all of the elements of nuisance have not been proven on the balance of probabilities:
  
  • The plaintiff did not have a property right in or over the land, such as if they were visiting
  • There was no unreasonable interference, rather, the defendant was using their own land in a reasonable manner, such as mowing
  • The plaintiff did not suffer damage loss or injury, such as if they were a night shift worker or had soundproofing

Question 2

Statutory authorisation

Answer 2

• This defence can be raised if legislation passed by the Victorian or Commonwealth Parliament allows for the defendants conduct. This defence will require a careful analysis of the statute and the facts of the case
• The defendant must show that the legislation confers a mandatory duty to undertake an action and that the nuisance is an inevitable consequence of performing that duty (i.e. the only way the action could be performed)