Defences and Remedies in Nuisance

In one line

Prescription and statutory authority are the two real defences; the remedies are damages, an injunction and abatement.

In the wording a student can write in an exam: the defences to an action for nuisance are prescription, where the defendant has continued the nuisance as of right for twenty years so as to acquire an easement, and statutory authority, where the legislature has authorised the very act complained of; the remedies are damages, an injunction under sections 38 and 39 of the Specific Relief Act 1963, and the extra-judicial remedy of abatement, that is, the removal of the nuisance by the person injured.

The defences

1. 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. Three points decide most questions.

Time runs from when the nuisance began, not from when the activity began. A factory that has worked for thirty years but whose fumes only began to reach the plaintiff's land five years ago has no prescriptive right.

The enjoyment must be as of right, that is, open, without force and without permission.

Prescription runs against a private nuisance only. No length of time legalises a public nuisance.

2. Statutory authority. Where a statute authorises the act complained of, the harm that inevitably follows is not actionable. As chapter [General Defences II] explains, the authority may be absolute or conditional, and it never authorises negligence.

What is NOT a defence

Prescription for a public nuisance. Time gives no right.

That the plaintiff came to the nuisance. He may buy or occupy land next to an existing nuisance and still sue.

That the defendant's act is for the public benefit. A useful activity carried on unreasonably is still a nuisance, though the point may affect the remedy.

That the nuisance is due to the acts of others as well. Where several people each contribute, each may be liable although his own contribution alone would not be a nuisance.

That reasonable care was taken. Nuisance is not negligence.

That the place is a suitable one for the activity. Suitability of the locality is a factor in deciding reasonableness, not a defence in itself, and it counts for very little where material damage to property is caused.

The remedies

1. Damages. Where the nuisance has caused material damage, the measure is the cost of repair or the diminution in value. Where it has interfered with comfort, the damages are general and are assessed for the inconvenience suffered.

2. Injunction. This is the remedy that actually stops a nuisance, and it is governed by the Specific Relief Act 1963. Section 38 allows a perpetual injunction to prevent the breach of an obligation, and covers the invasion of a right to property where there is no standard for ascertaining the actual damage, or where compensation in money would not be adequate relief. Section 39 allows a mandatory injunction, compelling the defendant to undo what he has done, for example to pull down a wall that obstructs a right to light or to remove a plant that emits the fumes.