Defences and Remedies in Nuisance

An injunction is discretionary. Where the injury is small, capable of being estimated in money, and adequately compensated by a small payment, a court may award damages instead, and the public importance of the defendant's activity may weigh in that decision.

3. Abatement. The person injured may himself remove the nuisance, and chapter [Extra-Judicial Remedies] takes the rules. The right is narrow: notice must ordinarily be given first, no more must be done than is necessary, and where there is a choice the least mischievous method must be taken. A person who abates a nuisance without notice, or who does more than is necessary, becomes a wrongdoer himself.

4. And for a public nuisance, the Magistrate's conditional order under section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023, and a suit under section 91 of the Code of Civil Procedure 1908, as chapter [Public Nuisance] sets out.

Limitation, and the point about continuing nuisance

Most nuisances are continuing, and section 22 of the Limitation Act 1963 provides that in the case of a continuing tort a fresh period of limitation begins to run at every moment during which the tort continues. So an action is not barred while the nuisance lasts, though damages are confined to the period within limitation.

Section 23 matters where the wrong is not actionable without special damage: the period is computed from the time the injury results, not from the act.

A worked example

For twenty-two years a workshop next to Zoya's house has run a lathe from nine in the morning to six in the evening. Zoya bought the house four years ago. This year the workshop added a night shift.

The day working. The workshop may claim a prescriptive right, since the noise has been made openly, as of right and without permission for more than twenty years. Zoya's recent purchase does not restart the clock, because prescription runs against the land.

The night shift. No prescriptive right can exist, because it began this year. Whether it is a nuisance depends on locality, duration and the standard of an ordinary occupier, and night noise in a residential area is very likely to be one.

Zoya's remedies. Damages for the disturbance, and, more usefully, a perpetual injunction under section 38 of the Specific Relief Act 1963 restraining work between fixed hours. If the workshop has built a wall that channels the noise into her window, a mandatory injunction under section 39 may compel its removal.

Abatement. Zoya may not walk into the workshop and switch off the lathe. Abatement is available for a nuisance she can remove from her own land or, in narrow circumstances, by entering after notice; it is not a licence to interfere with the defendant's business.

Limitation. Section 22 of the Limitation Act 1963 gives her a fresh cause of action every day the night shift continues.

What it does NOT mean

Prescription does not legalise a public nuisance. However long it has continued.

Statutory authority does not authorise negligence. Only the act and its necessary consequences.

An injunction is not automatic. It is discretionary, and damages may be awarded instead where the injury is small and can be compensated in money.

Abatement is not self-help at large. Notice, necessity and the least mischievous method are all required.

Quick revision

1. Two defences: prescription, twenty years as of right, and statutory authority.
2. Prescription runs from when the nuisance began, not from when the activity began, and never against a public nuisance.
3. Not defences: coming to the nuisance, public benefit, contribution by others, reasonable care, and suitability of the locality.
4. Remedies: damages, injunction under sections 38 and 39 of the Specific Relief Act 1963, and abatement.
5. An injunction is discretionary; damages may be substituted where the injury is small and quantifiable.
6. Abatement requires notice, necessity and the least mischievous method.
7. Section 22 of the Limitation Act 1963 gives a fresh period every moment of a continuing nuisance; section 23 postpones the start where special damage is needed.

Test yourself

1. What defences are available in an action for nuisance? Two are real. Prescription: a right to commit what would otherwise be a private nuisance may be acquired as an easement by twenty years of continuous enjoyment as of right, that is, openly, without force and without permission; time runs from the date the nuisance began to affect the plaintiff and not from the date the defendant's activity began, and no period of time will legalise a public nuisance. Statutory authority: where a statute authorises the very act complained of, the harm inevitably resulting from it is not actionable, though the authority never extends to a negligent manner of doing the act, and where the authority is conditional the actor must so conduct himself as to avoid the harm.

2. What is not a defence to a nuisance? That the plaintiff came to the nuisance, since the first occupier of a locality cannot fix its character against later comers. That the defendant's activity benefits the public, though this may bear on whether an injunction or damages is granted. That others contribute to the same interference, since each contributor may be liable although his own share alone would not amount to a nuisance. That the defendant took reasonable care, since the question is the unreasonableness of the interference and not the care taken. And that the locality is a suitable one for the activity, which is a factor in assessing reasonableness rather than an answer, and which carries little weight where material damage to property has been caused.

3. What remedies has a person injured by a nuisance? Damages, measured by the cost of repair or the diminution in value where there is material damage, and assessed generally for inconvenience where the interference is with comfort. An injunction, which is the remedy that stops the nuisance: a perpetual injunction under section 38 of the Specific Relief Act 1963, which expressly covers the invasion of a right to property where there is no standard for ascertaining the actual damage or where money would not be adequate relief, and a mandatory injunction under section 39 to undo what has been done. The remedy is discretionary, and where the injury is small and can be adequately compensated in money a court may award damages instead. And abatement, the extra-judicial removal of the nuisance, which requires notice, permits no more than is necessary, and obliges the abator to choose the least mischievous method. For a public nuisance there are in addition the Magistrate's conditional order under section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023 and a suit under section 91 of the Code of Civil Procedure 1908.