250 Chapter 9Nuisance, trespass, defamation and vicarious liability
Prescription
Prescription is a property right which can give a right to continue committing what would
otherwise be a nuisance. The right is acquired by continuously doing the act which causes
the nuisance for 20 years. However, the act must be committed without force, openly and
without permission. Also, as the following case shows, the act complained of must have
amounted to a nuisance for the whole 20 years.Defences
Statutory authority
A defendant will not be liable for a nuisance which was necessarily committed in order to
comply with a statute.Consent of claimant
It is a complete defence that the claimant consented to the nuisance being committed. (The
defence of consent was considered in relation to negligence. See volenti non fit injuriaon
p. 237.) However, a claimant who occupies or buys land in the knowledge that a nuisance
is being committed is not taken to consent to the nuisance. So in Miller vJackson (1977)the
Court of Appeal held that a cricket club, which had played cricket on certain grounds for
many years, could be committing a nuisance when a housing estate was built nearby.Allen vGulf Oil Refining Ltd (1981) (House of Lords)An Act of Parliament gave Gulf Oil the right to compulsorily purchase land and build an oil
refinery on it. Once the refinery was running, a nearby resident said that its noise, smell and
vibrations amounted to a nuisance.
HeldIt was Parliament’s intention that the oil refinery should be built and should operate
on the site. As the noise, smells and vibrations were an inevitable consequence of the
operation of a refinery, the defendant had a complete defence.Sturges vBridgman (1879) (Court of Appeal)A confectionery manufacturer used heavy pestles and mortars on his premises, which were
next door to a doctor’s premises. Although the pestles and mortars caused noise and
vibrations, this did not bother the doctor until he built a consulting room which adjoined the
room where the pestles and mortars were used. Then the doctor claimed that the use of
the pestles and mortars amounted to a nuisance.
HeldThe doctor was granted an injunction to prevent the use of the pestles and
mortars. Although the pestles and mortars had been making the noise and vibration for
over 20 years, the nuisance had not been committed until the new consulting room was
built.