Nuisance, Planning and Regulation: The Limits of Statutory Authority
Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith (eds), Defences in Tort (Hart 2015) 183-206
25 Pages Posted: 20 Dec 2017
Date Written: January 8, 2015
In this chapter, I examine the defence of statutory authority in the law of private nuisance. I argue that if we let our guard down, the de facto extension of the defence could put at risk the continued vitality of private nuisance as a cause of action. Recent developments in the law of private nuisance have threatened in effect to extend the defence of statutory authority to encompass the defendant’s compliance with regulatory regimes governing his activity, and at least some instances in which planning permission has been granted for the use of land causing the alleged nuisance. I argue that there are fundamental objections to these de facto extensions of statutory authority, and that they are inconsistent with core features or aspects of that defence. The core message of the chapter is summed up by Tony Weir’s characteristically pithy remark that ‘administrators cannot authorise torts’.
Keywords: tort law, private nuisance, defences, statutory authority, planning permission, regulatory compliance
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