Defences to Nuisance

Defences to Nuisance

A number of the defences that apply to other civil wrongs, such as negligence, also apply to nuisance. There are other defences to a nuisance action. They include the following

• Where the cause of the damage is a third party’s intervention.
• Where the matter arises from an unforeseeable event, such as an act of God
• statutory authority and
• the consent of the claimant.

Statutory Authority

Where a person is acting under a statutory authority, such as a state body or a private contractor acting on its behalf, this may immunise what would otherwise be a nuisance.  The principle applies to actions which are the inevitable consequence of what they are authorised to do.

For example, a contractor undertaking road works would not, for this reason alone, be liable to be sued for nuisance. If, however, the nuisance arises from negligence or failure to use a proper method, this defence will not apply.

Public authorities and private bodies may be empowered by law to undertake repair and development work.  For example, Councils have broad obligations to maintain public facilities.

Statutory bodies may have authority, such as laying of pipes, wires, and conduits for services and other infrastructure.  Where the activity is permitted expressly or by necessary implication by the enabling legislation, then there is a defence to an action for nuisance.

Consent & Prescription

A person may be deemed to have consented to a nuisance by failing to challenge it within a reasonable time of becoming aware of it. In the case of certain private nuisances, use for more than 20 / 12 years (depending on whether pre-2009 land law reforms apply) may create an easement in favour of the person who has created or is causing the nuisance.

That easement may permit that which would otherwise constitute a nuisance. Some nuisances only, are capable of being enjoyed as an easement.

Prescription refers to the acquisition of a right acquired by long use. Where a particular action has been undertaken openly for 20/12  years ), it may legalise what would otherwise be a nuisance. The conduct or activity must occur openly with notice to the persons affected.

An easement must be exercised openly with the knowledge of the person affected but without consent.  Generally, 20 years of continuous use is required.  The 2009 land law reforms required the registration of most easements in order to establish them definitively. They were revoked in 2009.

Coming to the Nuisance

Unless an easement may be established, it appears that no right to undertake a nuisance is established by long use. It is not a defence to an action for nuisance that the claimant came to the nuisance.  Short of where an easement is established in the above circumstances, the passage of time does not create a defence.

Undue Sensitivity

Nuisance law looks to the reasonable or average person in considering whether the claimant has been unreasonably affected in the use and enjoyment of his land. Where a person has an undue sensitivity to noise or other nuisance, he is not entitled to any greater protection than a  person of ordinary sensitivity.

Contribution

Contributory negligence on the part of the claimant will arise in some cases. relevant.  Prospectively, the amount of compensation they may receive may be reduced or eliminated depending on the respective degrees of fault.

The cumulative effect of several different persons’ actions may be such as to cause a nuisance.  Each might not suffice to constitute a nuisance by itself.  It may do so in combination with other activities.

If two parties have created or are maintaining a nuisance, then they may be concurrently liable to the claimant. They may claim contributions amongst themselves under the Civil Liability Act.