Note for example that the right to make noise and smells are relative iv Public

Note for example that the right to make noise and

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defining what relative rights are. (Note for example that the right to make noise and smells are relative) (iv) Public benefit, planning permission, and statutory authority Public Benefit The fact that D’s activity is for public utility doesn’t prevent it also amounting to a nuisance ( Bamford ). However, if an activity is for the public benefit, that may be a consideration taken into account in determining the reasonableness of the defendant’s use of his land. Further, if an activity is in the public interest, a different remedy may be required as an injunction may not be appropriate. ( Dennis ) Bamford v Turnley (1862) 3 B & S 66 Facts: D was burning bricks on his land resulting in smoke and smell that affected C. D won but one of the arguments was that D should not be subject to a claim in private nuisance as his activity was for the public benefit. Notes: Bramwell B for his part felt that an activity was only for the public benefit if there was a net benefit after paying compensation and that the argument did not hold water. - Although the authorities suggest that public benefit is not an absolute defence, it seems that it may be a consideration taken into account in determining the reasonableness of the defendant’s use of land. - If private rights are to be extinguished in favour of the general public this has generally been thought to be a matter for parliament Dennis v Ministry of Defence [2003] 2 EGLR 121 Facts: C, the owner of a country estate adjoining an RAF base, claimed that the noise amounted to a nuisance. D argued that the public benefit prevented it from being characterised as a nuisance. Judgment: Buckley J held that whilst public benefit could not be used to justify conduct that would otherwise be a nuisance, it may be relevant to determining the remedy that should be granted. (If
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nuisance was found, an injunction would have been the appropriate remedy because the conditions for the award of damages in lieu of an injunction, set out in Shelfer , would not have been met. Nonetheless, an injunction clearly would not have been appropriate. Thus, Buckley J effectively extended the circumstances, well beyond Shelfer , when damages could be granted in lieu of an injunction.) Statutory authority Defendants have immunity in respect of proceedings for nuisance in respect of inevitable consequences from carrying out statutorily permitted activity. (Note that the immunity only extends to inevitable interferences) Alternatively, no action lies for doing that which the legislature has authorised, unless done negligently. Allen v Gulf Oil Refining Ltd [1981] AC 1001 Facts: D built and operated an oil refinery under the authority of the Gulf Oil Refining Act 1965. C claimed she was adversely affected by noxious odours, vibrations, and offensive noise levels emanating from the refinery, as well as alleging that she and members of her family lived in fear of explosion at the refinery. D pleaded statutory authority.
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