Private nuisance: defences and remedies | OCR A-Level Law
For Specification H418
OCR A-Level Law | Free Revision Notes
Estimated study time: 45–55 minutes
This Private nuisance: defences and remedies A-Level Law revision page completes the core OCR rules on private nuisance. Once an actionable nuisance has been established, you need to decide whether the defendant has a valid defence and, if not, what remedy may be awarded. OCR H418 expressly requires knowledge of private nuisance defences, including those that are and are not available, together with remedies. This builds on unreasonable interference [Lesson 127. Unreasonable interference] and prepares you to move on to Rylands v Fletcher [Lesson 129. Rylands v Fletcher].
Learning Objectives 🎯
By the end of this revision page, you should be able to:
Explain statutory authority as a defence to private nuisance.
Explain prescription and its 20-year requirement.
Recognise that coming to the nuisance is not a defence.
Recognise that social utility or public benefit is not a defence.
Distinguish statutory authority from planning permission.
Explain the roles of damages and injunctions as remedies for private nuisance.
Revision Notes 📚
Private nuisance: defences and remedies A-Level Law revision overview
Before considering defences, an actionable private nuisance must first have been established.
This means that you should normally already have considered:
the claimant's interest in land
an indirect interference
the type of interference
whether the interference is unreasonable
the appropriate defendant.
These elements are covered in private nuisance: basic elements [Lesson 126. Private nuisance: basic elements] and unreasonable interference [Lesson 127. Unreasonable interference].
Only then should you ask:
Does the defendant have a valid defence?
For OCR, it is particularly important to distinguish between arguments that are genuine defences and arguments which might sound persuasive but do not provide a defence.
The principal distinction is:
Available defences | Not defences |
Statutory authority | Coming to the nuisance |
Prescription | Social utility or public benefit |
Planning permission alone |
OCR's 2024 mark scheme specifically identified statutory authority and prescription as relevant defences, and coming to the nuisance and social utility as non-defences.
Statutory authority
Statutory authority may provide a defence where legislation authorises the activity that causes the nuisance.
The key authority is Allen v Gulf Oil Refining Co Ltd.
The general principle is that statutory authority can provide a defence to what would otherwise be an actionable private nuisance.
However, simply pointing to legislation is not enough.
Two important questions must be asked:
Is the nuisance within the scope of the activity authorised by the legislation?
Could the nuisance have been avoided through the exercise of reasonable care and skill?
The nuisance must fall within the statutory authority
The legislation must actually authorise the activity that gives rise to the nuisance.
Barr v Biffa Waste Services is identified in OCR materials as authority for the principle that statutory authority may not protect the defendant where the nuisance falls outside the authorised activity.
For example:
Parliament passes legislation authorising a company to construct an underground railway using heavy drilling equipment. The drilling inevitably creates noise and vibrations.
If the noise and vibrations arise directly from the specifically authorised construction activity, statutory authority may provide a defence.
However:
The company also begins operating an unrelated waste-processing plant on the construction site, producing smells that affect neighbouring houses.
If this additional activity is not authorised by the legislation, the defendant cannot simply rely on the statutory authority covering the railway construction.
📌 Exam technique: Quote or identify exactly what the legislation authorises, then link that wording to the nuisance in the scenario.
Reasonable care and skill
Even where an activity is authorised, statutory authority may not provide a defence if the nuisance could have been avoided through the use of reasonable care and skill.
OCR's 2024 mark scheme identifies this limitation through Allen v Gulf Oil Refining Co Ltd.
Suppose legislation authorises a company to operate an industrial facility.
If ordinary operation inevitably causes some noise, statutory authority may protect the company.
If, however, excessive noise is caused because machinery has not been maintained properly and reasonable maintenance would have prevented it, the defence is much weaker.
The legal argument should therefore distinguish:
nuisance that is a consequence of the authorised activity, from
nuisance caused because the defendant failed to operate that activity with reasonable care and skill.
Statutory authority is not the same as planning permission
This distinction is particularly important for OCR examinations.
Statutory authority involves authority arising from legislation.
Planning permission gives permission for development or use but does not, by itself, provide a defence to an actionable nuisance.
OCR's 2022 mark scheme states that planning permission does not override an actionable private nuisance, referring to Coventry v Lawrence.
Example
A business has planning permission to operate a venue until midnight.
Its activities nevertheless create an actionable private nuisance for neighbouring residents.
The business cannot simply argue:
"We have planning permission, so we cannot be liable."
Planning permission and statutory authority are not interchangeable.
⚠️ This has caused difficulty in real OCR examinations. In 2024, some candidates incorrectly applied planning permission where the scenario required statutory authority.
Prescription
A second important defence is prescription.
Prescription allows a defendant to argue that they have acquired a right to continue committing what would otherwise amount to a private nuisance.
The traditional authority is Sturges v Bridgman.
The crucial time period is 20 years.
However, there is a very important qualification:
It is not enough for the defendant simply to have carried out the activity for 20 years.
The activity must have amounted to an actionable nuisance for at least 20 years.
OCR identifies Coventry v Lawrence for this requirement.
Calculating the 20-year period
Consider the following example:
A motorsport track has operated for 30 years. For its first 25 years, it used relatively quiet vehicles during daytime hours. Five years ago, it began using much louder vehicles late at night, creating an actionable nuisance.
The defendant cannot simply say:
"We have been here for 30 years."
The relevant nuisance has existed for only five years.
Prescription therefore cannot be established.
OCR's 2022 mark scheme applied exactly this distinction, emphasising that it is the nuisance complained of, rather than the existence of the activity in general, which must satisfy the 20-year period.
An application checklist for prescription
When the defendant claims prescription, ask:
What precisely is the nuisance complained of?
When did that nuisance become actionable?
Has that same actionable nuisance continued for at least 20 years?
Has the nature or intensity of the activity changed during that period?
If the defendant has operated for 25 years but the actionable nuisance began only eight years ago, the defence fails.
📌 Exam technique: Dates in a private nuisance scenario are rarely decorative. If OCR gives you several dates, calculate how long the actionable nuisance has actually existed.
Coming to the nuisance
Coming to the nuisance means that the claimant moved to the affected land after the defendant's activity had already begun.
A defendant might argue:
"The claimant knew what happened here when they moved in."
However, coming to the nuisance is not a defence.
Miller v Jackson is the key authority identified by OCR.
OCR's 2024 mark scheme explains that the fact a claimant has moved to an area where the nuisance already exists does not prevent the claimant from bringing a private nuisance action.
Example
A cricket club has operated beside a field for many years.
A new resident buys a neighbouring house and cricket balls frequently enter the garden, creating an actionable nuisance.
The club cannot successfully defend the claim merely because the resident moved there after the cricket activity had begun.
Coming to the nuisance may still affect remedies
Although coming to the nuisance is not a defence, that does not mean it is legally irrelevant.
OCR materials state that it may be considered when deciding the appropriate remedy, particularly whether to award:
an injunction, or
damages.
Coventry v Lawrence is relevant to this issue.
This distinction is essential:
Defence question: Does coming to the nuisance defeat liability?Answer: No.
Remedy question: Can it influence what remedy the court chooses?Answer: Yes, it may.
Social utility and public benefit
A defendant may also argue that the activity provides a valuable service to the public.
This is sometimes described as social utility or public benefit.
Examples could include activities connected with:
recreation
employment
community facilities
socially useful services.
However, once an actionable nuisance has been established, public benefit is not itself a defence.
OCR identifies Miller v Jackson for this principle, while Adams v Ursell is relevant to public benefit when considering remedies.
Example
A popular community sports centre creates an actionable nuisance for a neighbouring homeowner.
The centre cannot simply argue:
"Lots of people benefit from our activities, so we cannot be liable."
The social value of the activity does not erase the claimant's private nuisance claim.
Social utility may affect remedies
Like coming to the nuisance, public benefit may still influence the remedy chosen.
A court may have to consider the consequences of restricting an activity when deciding whether an injunction or damages are appropriate.
OCR's materials expressly distinguish public benefit as a non-defence from its potential importance when determining remedies.
This gives you another important exam distinction:
Argument | Defence to liability? | May affect remedy? |
Statutory authority | Yes, if requirements are met | Liability may be defeated |
Prescription | Yes, if requirements are met | Liability may be defeated |
Coming to the nuisance | No | Yes |
Social utility/public benefit | No | Yes |
Planning permission alone | No | Do not treat it as equivalent to statutory authority |
Planning permission is not a private nuisance defence
OCR's 2022 materials make clear that planning permission does not simply "trump" an actionable nuisance. Coventry v Lawrence is the key authority.
Suppose a nightclub has planning permission to operate from a particular building.
If its noise nevertheless constitutes an actionable private nuisance, the existence of planning permission does not automatically defeat the claimant's case.
This is different from a statute specifically authorising an activity which necessarily causes the interference.
Exam comparison
Statutory authority
"The activity causing the nuisance is specifically authorised by legislation."
Potential defence.
Planning permission
"The local planning system permitted the development or use."
Not, by itself, a defence to an established private nuisance.
Choosing the correct defence
When you see a factual scenario, look for specific triggers.
Fact in the scenario | Issue to consider |
An Act authorises the activity | Statutory authority |
The nuisance has existed for decades | Prescription |
Claimant recently moved to the property | Coming to the nuisance, but remember it is not a defence |
Activity benefits the community | Social utility/public benefit, but remember it is not a defence |
Defendant has planning permission | Do not confuse this with statutory authority |
A strong OCR answer does not simply list every defence.
It identifies which arguments are raised by the facts and then explains whether each is actually available.
This approach can later be consolidated through land-specific defences [Lesson 139. Volenti and land-specific defences].
Remedies for private nuisance
If:
an actionable nuisance has been established, and
no valid defence defeats the claim,
the court can consider an appropriate remedy.
The two key remedies emphasised by current OCR materials are:
damages
injunctions.
OCR's general tort content also requires understanding of compensatory damages and the basic concept of an injunction.
Damages
Damages are a financial remedy.
In private nuisance, damages can compensate the claimant for harm that has already occurred.
For example, damages may be appropriate where an actionable nuisance has caused loss or damage to the claimant's property.
OCR's 2022 private nuisance mark scheme also identifies the wider discretion recognised in Coventry v Lawrence, allowing damages to be considered in relation to an ongoing nuisance rather than automatically requiring an injunction.
The detailed principles governing compensatory damages are developed later in compensatory damages [Lesson 140. Compensatory damages].
Injunctions
An injunction is a court order controlling conduct.
In private nuisance, an injunction can restrict the defendant's future activity so that the nuisance does not continue.
OCR identifies authorities including:
Kennaway v Thompson
Coventry v Lawrence
Shelfer v City of London Electric Lighting Co.
An injunction does not necessarily mean that the defendant must stop every aspect of an activity.
It may restrict the activity sufficiently to prevent or limit the nuisance.
Example
A recreational venue creates excessive noise every night.
An injunction might restrict:
the hours during which the noisy activity takes place
the frequency of the activity
the extent of the activity causing the nuisance.
The purpose is to control the future interference.
The broader role of this remedy is covered in injunctions [Lesson 142. Injunctions].
Damages or an injunction?
The court may need to decide whether the claimant should receive:
damages
an injunction
or an appropriate combination depending on the circumstances.
Coventry v Lawrence is particularly important because OCR describes the courts as having wider discretion concerning damages in private nuisance.
Factors that may matter when choosing the remedy include circumstances that did not provide a defence to liability.
For example:
the claimant came to the nuisance
the defendant's activity has a public benefit or social utility.
This does not mean the defendant escapes liability.
Instead, it may affect whether an injunction or damages provide the more appropriate response.
Applying remedies to a scenario
Consider this example:
A successful private nuisance claim is brought against a company whose machinery creates unreasonable overnight noise. The company employs many people and provides an important local service.
The company's public benefit does not defeat liability.
However, when considering remedies, the court might consider whether:
an injunction should restrict the hours of operation, or
damages should compensate the claimant.
A good answer therefore keeps liability and remedies separate.
Complete private nuisance structure
You can now bring Lessons 126 to 128 together.
Stage 1: Can the claimant sue?
Identify the claimant's interest in land.
Stage 2: Is there a nuisance?
Identify the indirect interference and whether it affects the land, its use or enjoyment.
Stage 3: Is the interference unreasonable?
Apply relevant factors from unreasonable interference [Lesson 127. Unreasonable interference].
Stage 4: Who may be sued?
Identify the appropriate defendant.
Stage 5: Is there a defence?
Consider only those raised by the facts:
statutory authority
prescription.
Recognise non-defences:
coming to the nuisance
social utility or public benefit
planning permission alone.
Stage 6: What remedy is appropriate?
Consider:
damages
injunctions.
This full structure will help when you later complete comparing torts connected to land [Lesson 131. Comparing torts connected to land].
Key Words 🔑
Key word | Student-friendly definition | How it may be used in an exam |
Statutory authority | A defence where legislation authorises the activity responsible for the nuisance, subject to the limits of that authority. | Apply the wording and scope of the legislation to the interference complained of. |
Prescription | A defence based on an actionable nuisance having continued for at least 20 years. | Calculate how long the particular actionable nuisance has existed. |
Coming to the nuisance | The claimant moves to land after the defendant's activity has already begun. It is not a defence. | Reject the defence using Miller v Jackson, while recognising possible relevance to remedies. |
Damages | Financial compensation awarded to a successful claimant. | Explain how the claimant may be compensated for harm caused by the nuisance. |
Injunction | A court order which can restrict the defendant's future activity. | Advise whether continuing interference may be controlled rather than simply compensated. |
Hints from the Examiner Reports 💡
Examiner hint: Know the difference between genuine defences and non-defences. OCR's 2024 report states that the relevant issues were statutory authority, prescription, coming to the nuisance and social utility. Many candidates did not realise that the final two were not available defences.
Examiner hint: Do not confuse planning permission with statutory authority. This was a specific problem in the 2024 examination, where some candidates applied planning permission to facts designed to test statutory authority.
Examiner hint: Apply prescription to the actionable nuisance, not simply the age of the defendant's activity. OCR reported that many students could describe the 20-year rule but then applied it incorrectly because the nuisance itself had not existed for 20 years.
Examiner hint: Look for factual clues to non-defences. In the 2024 question, facts about a claimant moving near an existing activity and the social value of a leisure club were designed to trigger coming to the nuisance and social utility. Strong answers recognised those arguments but correctly rejected them as defences.
Examiner hint: Avoid the "shotgun" approach. OCR's 2022 report noted that candidates often included irrelevant private nuisance material. More successful responses selected the legal principles actually raised by the scenario and applied them accurately.
Examiner hint: Do not forget remedies when the question asks for them. OCR's 2022 private nuisance question rewarded candidates who considered the relevant defences and remedies, with stronger responses applying the remedy principles thoughtfully to the facts.
Common Mistakes ⚠️
Mistake: Treating planning permission as statutory authority
Why this is incorrect: The two concepts are different. Planning permission does not automatically defeat an actionable private nuisance, whereas statutory authority may provide a defence where the nuisance falls within legislation authorising the activity.
How to improve: Look for an Act or statutory authorisation before applying Allen v Gulf Oil. If the facts merely say "planning permission", do not automatically treat it as a defence.
Mistake: Counting 20 years from when the defendant first arrived
Why this is incorrect: Prescription requires the actionable nuisance to have existed for at least 20 years.
How to improve: Create a mini timeline from the facts. Mark the point when the activity became an actionable nuisance and count from there.
Mistake: Treating coming to the nuisance as a defence
Why this is incorrect: Miller v Jackson establishes that moving to an area where a nuisance already exists does not provide the defendant with a defence.
How to improve: Write explicitly:
Coming to the nuisance is not a defence, although it may be relevant when deciding the remedy.
Mistake: Treating public benefit as a complete defence
Why this is incorrect: An activity does not cease to be an actionable private nuisance simply because other people benefit from it.
How to improve: Separate liability from remedies. Public benefit does not defeat liability but may influence the remedy chosen.
Mistake: Assuming statutory authority always succeeds
Why this is incorrect: The nuisance must fall within the scope of the authorised activity. The defence may also fail where reasonable care and skill could have prevented the nuisance.
How to improve: Apply both questions:
Is this nuisance within what the legislation authorises?
Could reasonable care and skill have avoided it?
Mistake: Automatically recommending an injunction
Why this is incorrect: An injunction is not the only remedy. OCR materials recognise the court's discretion to award damages, including in circumstances involving an ongoing nuisance.
How to improve: Discuss both damages and injunctions where the facts allow, and explain which is more suitable.
Mistake: Discussing every possible defence
Why this is incorrect: This wastes time and may prevent proper AO2 application of the issues actually raised by the scenario.
How to improve: Look for triggers such as legislation, dates, a recently arrived claimant or public benefit, then address those issues specifically.
Exam-Style Questions ✍️
Question 1
State the time period required to establish the defence of prescription in private nuisance. [1 mark]
Question 2
Explain the defence of statutory authority in private nuisance. Refer to relevant legal authority. [4 marks]
Question 3
Explain why coming to the nuisance is not a defence to private nuisance. [4 marks]
Question 4
Explain the difference between statutory authority and planning permission in relation to a private nuisance claim. [6 marks]
Question 5
Explain the remedies of damages and injunctions in private nuisance. [6 marks]
Question 6
A factory has operated on the same site for 28 years. Its ordinary daytime operations caused no actionable nuisance. Six years ago, it installed larger machinery and began operating throughout the night. The new noise has been established as an actionable private nuisance.
Advise whether the factory can rely on prescription. [6 marks]
Question 7
Poppy recently buys a house beside a community sports ground. Activities at the ground have already been established as an actionable private nuisance. The sports organisation argues that:
the ground was operating before Poppy moved there
thousands of local people benefit from the facilities.
Explain whether either argument provides the organisation with a defence and how the facts may nevertheless be relevant. [10 marks]
Question 8
An actionable private nuisance has been established in each of the following situations:
A: Parliament passes legislation authorising Northlink Ltd to construct an underground transport tunnel using drilling machinery. The drilling inevitably causes noise and vibrations in Eva's neighbouring house.
B: Old Mill Events has operated from the same property for 27 years. Its events were originally held indoors. Eight years ago, it began holding amplified outdoor concerts which have created an actionable noise nuisance for neighbouring land.
C: Riverside Activity Centre creates an actionable nuisance affecting Hannah's garden. Hannah moved into her house only two years ago, long after the centre began operating. The centre is used by hundreds of local children each week.
Advise the defendants as to any available defences and non-defences. Where liability remains, explain the remedies that may be relevant. [20 marks]
Indicative answers and mark scheme
Question 1
Award 1 mark for:
20 years.
The relevant actionable nuisance must have existed for that period.
Question 2
Award up to 4 marks for explaining that:
statutory authority may provide a defence where legislation authorises the activity causing the nuisance
Allen v Gulf Oil Refining Co Ltd is relevant authority
the nuisance must fall within the scope of the authorised activity
the defence may not protect the defendant if reasonable care and skill could have prevented the nuisance.
Question 3
Award up to 4 marks for:
explaining what coming to the nuisance means
stating that it is not a defence
appropriate reference to Miller v Jackson
recognising that it may nevertheless affect the choice of remedy, supported where appropriate by Coventry v Lawrence.
Question 4
Award up to 6 marks for explaining that:
statutory authority arises where legislation authorises the relevant activity
it may provide a genuine defence
Allen v Gulf Oil Refining Co Ltd is relevant
planning permission is different from statutory authority
planning permission does not automatically defeat an actionable nuisance
Coventry v Lawrence supports the position concerning planning permission.
Question 5
Award up to 6 marks for:
explaining that damages provide financial compensation
recognising that damages may compensate for harm already suffered
recognising the wider remedial discretion associated with Coventry v Lawrence
explaining that an injunction is a court order controlling future activity
recognising that an injunction may restrict rather than necessarily prohibit all activity
appropriate authority such as Kennaway v Thompson or Coventry v Lawrence.
Question 6
A strong answer should explain that:
prescription requires an actionable nuisance for at least 20 years
the fact the factory has operated for 28 years is not enough
its original operations did not constitute an actionable nuisance
the actionable nighttime noise began only six years ago
Sturges v Bridgman and Coventry v Lawrence are relevant
the factory therefore cannot establish prescription.
Conclusion: The prescription defence is unlikely to succeed.
Question 7
A strong answer should explain that:
Coming to the nuisance
Poppy moved beside an activity which was already operating.
This raises coming to the nuisance.
Miller v Jackson establishes that this is not a defence.
Poppy's claim is therefore not defeated merely because she arrived later.
Public benefit
The sports ground benefits many members of the community.
This raises social utility or public benefit.
Public benefit is not a defence to an actionable private nuisance.
Miller v Jackson and Adams v Ursell may be used appropriately.
Remedies
Both factors may nevertheless be relevant when deciding whether damages or an injunction should be awarded.
Coventry v Lawrence is relevant to the discretion concerning remedies.
Question 8
A high-level answer should deal separately with each defendant.
A: Northlink Ltd
The facts raise statutory authority.
The legislation expressly authorises:
construction of the tunnel
use of drilling machinery.
The noise and vibrations arise from the activity specifically authorised.
Under Allen v Gulf Oil Refining Co Ltd, statutory authority can provide a defence to an otherwise actionable nuisance.
There is no suggestion that the nuisance results from a failure to exercise reasonable care and skill.
Northlink therefore has a strong argument that statutory authority provides a valid defence.
B: Old Mill Events
The facts raise prescription.
Although Old Mill has occupied the site for 27 years, the actionable nuisance began only when amplified outdoor concerts started eight years ago.
Under Sturges v Bridgman and Coventry v Lawrence, it is the actionable nuisance that must have continued for at least 20 years.
The relevant nuisance has existed for only eight years.
Prescription therefore fails.
Unless another valid defence exists, Old Mill remains liable.
Possible remedies include:
damages for the nuisance
an injunction restricting future noisy activity.
C: Riverside Activity Centre
Hannah moved to the property after the activity had already begun.
This raises coming to the nuisance, but under Miller v Jackson it is not a defence.
The fact that hundreds of local children benefit from the centre raises social utility or public benefit.
Again, this does not provide a defence to an established nuisance.
However, both the fact Hannah moved to the nuisance and the public benefit of the centre may influence the choice of remedy.
The court could consider:
damages
an injunction limiting the nuisance.
Overall conclusion
Northlink has the strongest defence because the nuisance appears to arise directly from statutorily authorised activity. Old Mill cannot establish the required 20 years of actionable nuisance. Riverside cannot rely on either coming to the nuisance or public benefit as defences, although those circumstances may influence the remedy awarded.
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