Q&As

Is there a defence to a potential nuisance claim if the nuisance is necessary in order to comply with a statutory duty?

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Published on LexisPSL on 29/06/2017

The following Property Disputes Q&A provides comprehensive and up to date legal information covering:

  • Is there a defence to a potential nuisance claim if the nuisance is necessary in order to comply with a statutory duty?
  • Nuisance: a question of fact
  • Statutory duty as defence?
  • Party Wall etc Act 1996

Is there a defence to a potential nuisance claim if the nuisance is necessary in order to comply with a statutory duty?

We have assumed for the purposes of this Q&A that the replacement of the boundary wall is required by statute. The question of whether the works to replace the boundary wall (the Works) constitute a nuisance is a question of fact. You may wish to review the general principles of nuisance to form a view on this (see: Noise and vibration: Halsbury's Laws of England [124]–[125]). While not strictly a ‘defence’, there is a suggestion that temporary construction works may not amount to a nuisance if they are conducted with all reasonable skill, and if all reasonable precautions not to cause annoyance to neighbours are taken. See Practice Note: Nuisance—what are public and private nuisance claims? for further information (together with the further Practice Notes referred to within it).

Nuisance: a question of fact

To determine accountability for an alleged nuisance the court will look at:

  1. the nature of the defendant’s interference (intentional, negligent or reckless for instance)

  2. the extent of the interference (it must be substantial), and

  3. the reasonableness of the defendant’s conduct

In assessing reasonableness, the court carries out a balancing exercise by weighing the right of the defendant to use their land as they wish against the right of the claimant not to

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