Defences to Private Nuisance (OCR A-Level Law): Revision Notes

Defences to Private Nuisance

When a defendant is sued in private nuisance, there are several defences available that may allow them to avoid or reduce liability. Understanding these defences is essential for exam success, particularly when applying the law to problem scenarios or evaluating the strengths and weaknesses of nuisance claims.

Ordinary use of the land

This defence applies where the alleged nuisance consists of normal, everyday activities or sounds associated with reasonable use of property. The law recognises that people must be able to use their land for ordinary purposes without facing liability, even if this causes some minor inconvenience to neighbours.

Southwark London Borough Council v Mills (2001) establishes the key principle. In this case, the claimant complained about normal household noises coming from neighbouring properties. The court held that these sounds were merely ordinary activities and did not constitute a nuisance. Everyday domestic sounds, such as footsteps, voices, or doors closing, are an inevitable part of residential life and must be tolerated to a reasonable degree.

Statutory authority

Public bodies or companies sometimes carry out activities that might otherwise constitute a nuisance, but they do so under powers granted by statute (an Act of Parliament). Where this occurs, the defendant may have a complete defence to a nuisance claim.

The defence operates on the principle that Parliament has authorised the activity in question. However, there is an important limitation: the interference must not exceed what was authorised by the statute. If the defendant goes beyond their statutory powers, or fails to take reasonable care to minimise the nuisance, the defence will fail.

Allen v Gulf Oil Refining Ltd (1981) illustrates this defence in operation. The claimant lived near an oil refinery and claimed that its operation constituted a nuisance. The House of Lords held that Gulf Oil was entitled to statutory immunity because the refinery conformed with Parliament's intention as expressed in the Gulf Oil Refining Act 1965. The statute had authorised the construction and operation of the refinery, and therefore any inevitable nuisance arising from normal operation was protected.

Act of God and nuisances arising naturally

An Act of God refers to a natural event that occurs entirely independently of human action and could not reasonably have been foreseen or prevented. Examples might include extraordinary storms, lightning strikes, or other exceptional weather events. When such an event directly causes the nuisance, it provides a complete defence.

Nicholls v Marsland (1875) demonstrates the defence succeeding. The defendant had created a reservoir by damming a stream on their land. An extraordinarily heavy rainstorm, described as unprecedented, caused the dam to burst and wash away the claimant's bridges. The court held that this qualified as an Act of God because the storm was so exceptional that it could not have been anticipated.

Goldman v Hargrave (1967) clarifies this limitation. A tree on the defendant's land was struck by lightning and caught fire. The defendant was aware of the fire but failed to take adequate steps to extinguish it. The fire spread to the claimant's property, causing damage. The Privy Council held that the Act of God defence did not apply because, although the initial fire was caused by lightning (a natural event), the defendant had become aware of the danger and failed to take reasonable action to prevent it spreading.

Prescription

This defence, though rarely successful in practice, allows a defendant to claim a prescriptive right to continue committing a nuisance. To establish this defence, the defendant must prove that they have been committing the same nuisance continuously for at least 20 years, and that the claimant has been aware of the nuisance throughout this period but has done nothing about it.

The rationale is that if someone tolerates a nuisance for such a long time without objection, it would be unfair to allow them to suddenly complain. However, the 20-year period will not begin to run until the claimant actually becomes aware of the nuisance affecting their land.

Coventry v Lawrence (2014) provides a modern example. Speedway and stock-car racing had taken place at a venue since the 1970s. The court recognised that this long-standing activity had established a prescriptive right, meaning the defendant had acquired the legal right to continue the noise-generating activity despite its impact on neighbours.

Sturges v Bridgman (1879) illustrates when prescription fails. The defendant's premises adjoined those of the claimant, a doctor. For over 20 years, the defendant had used noisy machinery in his confectionery business without any complaint. However, the claimant then built a consulting room in his garden closer to the boundary. Only at that point did the noise interfere with the claimant's use of his land, and he complained. The court held that prescription failed because the nuisance only commenced when the new building was erected. Before that, there had been no actionable nuisance because the noise had not materially interfered with the claimant's enjoyment of his property.

What is NOT a defence

It is important to understand that certain arguments, which might seem intuitively fair, are not recognised as defences to private nuisance.

Coming to the nuisance

The landmark case of Miller v Jackson (referenced in the source material) exemplifies this principle. Even if the defendant's activity predates the claimant's arrival, the defendant remains liable if their activity constitutes a nuisance. The law protects the right to use and enjoy land, regardless of when the claimant acquired that land.

Planning permission

Similarly, obtaining planning permission for a development or change of use does not, in itself, authorise a nuisance. A defendant cannot claim immunity simply because the local authority granted planning permission for their activities.

However, planning permission may be relevant in a more subtle way: it can change the character of the locality, which is one of the factors considered when determining whether a nuisance exists in the first place. For example, planning permission for industrial development in a previously residential area might alter what counts as 'reasonable' in that locality.

Exam technique for defences to private nuisance

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