Nuisance

Defences
The main defences in nuisance are: statutory authority and prescription.
Defendants may also avoid liability if a statute creates other means of dealing with
the problem they are complaining of.

Statutory authority

Where a statute orders something to be done, and doing that thing inevitably
creates a nuisance, there will be no liability because the statute is treated as having
authorised the nuisance. In Allen v Gulf Oil Refining Ltd, the company pleaded
in their defence that the nuisance was an inevitable result of operating the refinery,
which they had power under statute to do. The relevant Act only gave express
permission to the company to compulsorily purchase land and to build the refinery
but not the power to operate it. However, it could be inferred that they should also
operate the refinery. The defence of statutory authority therefore succeeded and an
injunction against the operation of the refinery was refused. If a nuisance can be
avoided by the use of reasonable care and skill, statutory authority will not offer a
defence. The House of Lords in Allen pointed out that if the nuisance caused by
the refinery was more than the inevitable consequence of the refining process, it
could not be said to have been authorised by statute. It has been argued that
planning permission acts in the same way as statutory authority. This view was
rejected by the courts in Gillingham Borough Council v Medway (Chatham)
Dock Co, although it was accepted that planning permission can have a role to play
in assessing reasonableness. This issue was raised again in Watson v Croft
Promo-Sport Ltd, the circuit owners had planning permission for the circuit and
claimed that it changed the character of the area which meant that their activities
could not amount to a nuisance. The Court of Appeal disagreed, saying that the
area was still largely rural. However, the planning permission was relevant to the
question of whether the defendants use of the land was reasonable. The claimants
were awarded damages, but not an injunction.

Alternatively statutory remedies

The kind of activities that can amount to nuisance (such as pollution) are often
regulated by statutes, and the case of Marcic v Thames Water Utilities Ltd
makes it clear that where these statutes provide self-contained systems for dealing
with a failure to abide by their requirements, a claimant must use those systems,
and cannot choose to sue in nuisance instead. In this case, the House of Lords held
that the Water Industry Act 1991 provides that where a company fails to perform
the duty to provide, improve and extend such a system of public sewers
adequately, the Director General of Water Services can make an enforcement order
against them. The Act also expressly provides that customers cannot use a private

law action to complain about breach of a statutory duty which the Director General
of Water Services can enforce by making an enforcement order. The House of Lords
held that to allow a nuisance claim would be inconsistent with the statutory rules,
and would conflict with the clear intentions of Parliament.

Prescription (refer tutorial)

Inapplicable defences
There are 3 inapplicable defences : public benefit; use of care and skill; and
consent, or coming to the nuisance.

Public benefit

It may seem reasonable that an activity which provides a public benefit should be
less vulnerable to nuisance claims, but this is not the case. In Bellew v Cement
Co Ltd.(refer tutorial) This issue was addressed from a slightly different angle in
Dennis v Ministry of Defence where the High Court held that the public interest
in this case was so important that it would not be appropriate to stop the flying, but
argued that this did not mean that the Ministry should not compensate those
affected by the noise. The court held that the principle was that if society benefited
from an activity, society(in the form of Ministry) should pay to compensate those
who suffered as a result of that activity.

Care and skill

Another inapplicable defence in nuisance is care and skill. If a defendants use of

land is unreasonable, and damage to the claimants enjoyment of their own land
was the foreseeable result of that, the fact that they have used care and skill to
prevent such damage is not a defence.

Coming to the nuisance

In nuisance, the cases where a type of consent defence has been put forward are
those where the nuisance existed when the claimant came to the land, and
defendants have sought to argue that this amounted to consenting to the nuisance(
coming to the nuisance). The courts have, however, repeatedly rejected this
argument. In Sturges v Bridgman, the confectioner claimed that the doctor could
be considered to have consented to the noise of his business, since it was already in
existence when the doctor moved in, but the court held that this was not a defence
in private nuisance. In Miller v Jackson, the cricket club argued that in moving
there, when they were aware of the club, the defendants had come to the
nuisance, but the majority of the Court of Appeal held that this was not a defence.
This approach was confirmed in Dennis v Ministry of Defence, where the
Ministry of Defence argued that the claimants had no case because the airbase was
already operating before they bought the Hall, but the High Court dismissed this

argument, confirming that it was no defence that the claimant had come to the
nuisance.
Remedies

Injunction (refer tutorial)

Damages

The case of Cambridge Water Co v Eastern Counties Leather establishes that

the test for remoteness of damage in nuisance is reasonable foreseeability test as
laid down in Wagon Mound No 1. The claimant must prove that the interference
actually caused the damage complained of. Damages can be recovered for
damage to the claimants land, or the enjoyment of it, and also for injury to the
claimant which is associated with loss of enjoyment, such as loss of sleep, or
discomfort caused by noise or smells.

Abatement

Abatement involves self0help, and allows the claimant to take steps to end the
nuisance. Where the claimant needs to enter the defendants land for this purpose,
notice must be given; if it is not, the abator will become a trespasser.
Problems with private nuisance
One of the problems with private nuisance is the types of damage covered. The
failure to protect recreational facilities such as views can be criticised. The outcome
of the case of Hunter v Canary Wharf Ltd and London Docklands
Development Corporation seems particularly unsatisfactory. The law as it
currently stands seems to provide a green light for large property developers to
completely ignore the interests of local residents in the areas under development.
Secondly, the requirement for rights in land. The House of Lords decision in Hunter
v Canary Wharf regarding who can sue for nuisance has been regarded as a
backward step by some. Lord Cooke made a powerful dissenting judgment that
there was no logical reason why those who were actually enjoying the amenities of
a home should not be able to sue someone who unreasonably interfered with the
enjoyment. This problem may in time be overcome by the increasing use of the
Human Rights Act to deal with nuisance-type problems.