Defences under private nuisance (prescription and statutory authority) (Private Nuisance)- FS Flashcards
(10 cards)
What is the defence of prescription in private nuisance?
Prescription is a complete defence where the defendant can show that the nuisance has been actionable and uninterrupted for 20 years or more, without the claimant bringing a claim.
What condition must be met for the prescription defence to succeed?
The nuisance must have been actionable—i.e., one that would support a claim—for the full 20-year period. It is not enough that the defendant has simply carried out the act for 20 years.
Can a defendant claim prescription if the nuisance only became actionable recently, even if the activity itself is long-standing?
No. If the nuisance only became actionable (e.g., due to a new neighbour’s sensitivity or presence), the prescription period starts from the date it became actionable—not from when the activity began.
What is the defence of statutory authority in private nuisance?
Statutory authority is a full defence where the nuisance was the inevitable consequence of an activity expressly authorised by statute or legislation
When will statutory authority not protect a defendant from nuisance liability?
If the nuisance was not an inevitable consequence of complying with the statutory permission, the defence will not apply.
How does the statutory authority defence relate to reasonableness?
The defence overrides the standard test of reasonableness. If a statute mandates or necessarily implies the nuisance-causing activity, the defendant is immune from liability, even if the interference is substantial.
Why would a longstanding nuisance be protected under the prescription defence?
Because if the claimant could have brought an action at any time during the previous 20 years and chose not to, the defendant is considered to have acquired the legal right to continue the nuisance.
What distinguishes prescription from delay or laches in nuisance claims?
Prescription is based on a positive right earned over time from continued actionable nuisance. Laches, in contrast, is about prejudicial delay but does not itself create a legal entitlement to continue the nuisance.
Can a defendant rely on both prescription and statutory authority as defences?
Yes, if the facts support both. For example, if the nuisance has continued for over 20 years and the activity is also authorised by statute, either or both defences may apply.
If someone discovers their rights under nuisance law late, can they still sue after 20 years of ongoing nuisance?
No. The defence of prescription still applies. A lack of knowledge of the law does not reset or suspend the 20-year period during which a claim must be brought.
