Planning for nuisance? A review of the effects of the Planning Act 2008 on the statutory authority defence in the UK

Purpose – The purpose of this paper is to explore and examine the impact of s.158 of the Planning Act 2008 in the UK, which awards the defence of statutory authority to developers of major infrastructure projects in private nuisance actions. The paper will assess the extent to which this provision could broaden the scope of the existing defence and consider the practical implications of the new measures. Design/methodology/approach – The paper analyses existing case law, and the historic evolution of the UK doctrine of statutory authority, in order to assess the potential judicial approach to the defence in infrastructure planning decisions. Findings – Although s.158 of the Planning Act 2008 appears to further broaden the opportunity for the statutory immunity defence to be used, certain historical restrictions will affect its application. In awarding the defence, the judiciary have taken into account a variety of considerations such as the specificity of the location, the inevitability of the nuisance, the effect on statutory provisions, and the bearing that negligence has on the defence. These exceptions prove that there is no such thing as “blanket immunity”, and developers may still be held responsible for their un‐neighbourly conduct. Practical implications – The scope of the protection conferred on developers of major infrastructure projects can appear confusing and could potentially create the assumption that statutory authority will act as a total defence to any actions. Developers, and their advisers, will need to be aware of the aforementioned exceptions before seeking to rely on the statutory authority defence. Originality/value – This paper proposes that the doctrine of statutory authority has gained a newly significant status and uses recent legislation and a comprehensive overview of the existing case law to demonstrate these findings.