Public Nuisance

11 Key excerpts on "Public Nuisance"

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  eBook - ePub

  Statutory Nuisance and Residential Property

  Environmental Health Problems in Housing

  • Stephen Battersby, John Pointing(Authors)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  9

  4.11 This is a very wide definition, criticised by some for being vague and much too wide.10 In order to engage with the nuisance limb of statutory nuisance, a Public Nuisance will need to endanger “the health and comfort of the public at large”.11 This does not mean that everyone in the neighbourhood must be affected by a Public Nuisance. But if only a few people are affected or if the nuisance is such that a number of individuals are each separately victims of a private nuisance, then a Public Nuisance will not be made out. In R v Rimmington , Lord Roger opined that “a core element of the issue of Public Nuisance is that the defendant’s act should affect the community, a section of the public, rather than simply individuals”.12

  Statutory nuisance

  4.12 In the rest of this chapter, we will be concerned with aspects of the statutory nuisance regime affecting the occupation of residential property. We are particularly concerned with two types of statutory nuisance: first, with those arising from the state of the premises – s.79(1)(a) EPA 1990, and secondly, with noise emitted from premises – s.79(1)(g).

  4.13 As with nearly all forms of statutory nuisance, those arising from the state of the premises and noise are required to fall within one or other of the two limbs of the statutory nuisance regime. Section 79 EPA 1990 stipulates that a statutory nuisance must be “prejudicial to health or a nuisance”. These two limbs are alternative requirements, but it is not required that an abatement notice drafted to regulate a statutory nuisance stipulates the limb under which the enforcement action is being taken.13

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  Tort Law in Bangladesh

  Applications and Challenges

  • Sakif Alam(Author)
  • 2021(Publication Date)
  • Routledge India

    (Publisher)

  3 which is hopelessly inadequate for an injury with an estimated possible monetary equivalent of ৳2,000,000. Therefore, not only is the standard of proof in tort law lower, but also the compensation one can receive is considerably higher.

  Nuisance, which is a very vague term, is a French word meaning “harm” or “annoyance.”4 Perhaps no other word has vexed the English language as much as “nuisance,” since it has meant anything from an alarming advertisement to a cockroach baked in a cake.5 However, there is agreement among scholars, lawyers, and judges that the word is incapable of a precise definition. Nonetheless, from its provenance, nuisance has been, and is, an interference with the use and enjoyment of one’s land. This action was (and is) different from trespass in that there is no direct entrance onto a person’s property, but it causes disturbance to the enjoyment of the aggrieved party’s land. The example in the first paragraph is illustrative, as the person never entered your apartment uninvited and played loud music; rather, he was playing loud music on his property, which obstructed your enjoyment of your property.

  There are two kinds of nuisance – private and public – and I shall probe both in this chapter. A private nuisance is anything that interferes with the enjoyment of an individual’s property, such as, inter alia, smell, noise, or dust. A Public Nuisance is anything that interferes with the rights of the community, which could range from blocking a public highway to indecently exposing oneself to another.6 Nonetheless, as will become evident in this chapter, courts have provided guidelines as to what actions constitute nuisance, and similarly, what actions, though prima facie annoying, are not nuisances.7

  3.1 Actions giving rise to lability

  Appleby v Erie Tobacco Co8

  Erie Tobacco Company (hereinafter “Erie”) operated in a town near Appleby’s place of business and manufactured plug tobacco, which is tobacco leaves pressed together to create a brick-like mass for the purposes of chewing. The process of producing plug tobacco involves steaming, steeping, and stewing tobacco leaves. It is then added to a mixture of sugar, liquorice, and other ingredients, which are first boiled together. However, this process produces an odour that has been described as a “most sickening,” “very bad,” “very, very offensive,” and “very nauseating” smell, which causes vertigo and dizziness. Nonetheless, Erie is doing their best to contain the smell so that others are not detrimentally affected and have produced witnesses who say the smell is “not unhealthy” and one person has even said that it is “just splendid.” Since people were disturbed by the activity at Erie, the question submitted before the court was whether the smell resulting from the manufacture of plug tobacco constituted a nuisance. The court held it to be a nuisance and said:

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  Environmental Law in Scotland

  An Introduction and Guide

  • Francis McManus(Author)
  • 2016(Publication Date)
  • Edinburgh University Press

    (Publisher)

  CHAPTER 2 Nuisance The law of nuisance concerns itself with resolving the conflicting interests in the use of land. The law of nuisance protects the occu-pier of land from unreasonable interference which is taking place outwith the land that is affected. Whether any given state of affairs ranks as a nuisance in law is a question of fact and degree. In order to ascertain whether the adverse state which the pursuer complains of ranks as unreasonable and, therefore, a nuisance in law, the courts take a variety of factors into account. As far as the law of Scotland is concerned, the pursuer requires to prove culpa (or fault) on the part of the defender. Also discussed in this chapter are the defences which are available in an action in nuisance. Introduction The law recognises that the occupier of land has the right (for example, by virtue of being the owner, tenant or subtenant of the land) to enjoy the occupation of that land. However, such a right to use one’s land as one pleases is circumscribed by the law imposing an obligation on the occupier of the land not to use it in such a manner as to unreasonably interfere with the enjoyment of my neighbour’s occupation of land. 1 In 1933 Burn- Murdoch observed that the law of nuisance was a modern development and was not recognised as such by the institutional writers. 2 In essence, the law of nuisance is concerned with the law of neighbourhood. 3 However, the expression, ‘nuisance’ is a rather amorphous concept. Indeed, it is fiendishly difficult to define. 4 According to Smith, a nuisance comprises an operation on the part of the defender which, taking into account the natu-ral rights of his neighbours, is unreasonable or extraordinary on account being unnatural, dangerous or offensive; and such operation must have caused material injury.

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  Sourcebook on Tort Law 2/e

  • Graham Stephenson(Author)
  • 2012(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  1 These mechanisms for protecting the environment are a valuable addition to the common law, although it would seem that the reverse is true, in that the common law controls in most cases will surely be taking a back seat in the fight against environmental damage. The common law may be seen as the backdrop against which the other controls now operate. We shall be considering the scope of the common law actions only in this chapter, although often the solution may lie in the public law domain.

  The second point of an introductory nature is that the tort comprises two separate and, possibly historically distinct, causes of action, that is, public and private nuisance. Whilst it is true that they are independent actions, they often overlap and the same set of facts may well give rise to an action in both and, in addition an action under the rule in Rylands v Fletcher, assuming for the moment that that is a distinct cause of action.

  DISTINCTION BETWEEN PUBLIC AND PRIVATE NUISANCE

  A Public Nuisance is normally considered to be an interference or misuse which either (a) affects the exercise of some public right; or (b) substantially affects the health, safety, or convenience of a substantial number of people within the area of effect. Private nuisance is commonly regarded as an unreasonable interference with the use or enjoyment of the claimant's land or recognised interest in land.

  Public Nuisance, it must be emphasised, is a crime as well as a tort, whereas private nuisance is a tort only. A civil action for a Public Nuisance would normally be brought by the Attorney General in what is known as a relator action, although the frequency of resort to this procedure has been considerably reduced by the introduction of the public law controls mentioned above. A private individual may bring an action in Public Nuisance provided she can show that she has suffered special damage over and above that suffered by the community at large. A private individual must take the initiative at all times in a private nuisance action.

  Public Nuisance protects a wider range of interests in that the claimant need not have an interest in land, as is generally thought to be the case, in a private nuisance action. Personal injury damages are definitely recoverable in a Public Nuisance action provided the claimant can show special damage as mentioned earlier. In private nuisance, as with the rule in Rylands v Fletcher,

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  Environmental Protection and the Common Law

  • John Lowry, Rod Edmunds, John Lowry, Rod Edmunds(Authors)
  • 2000(Publication Date)
  • Hart Publishing

    (Publisher)

  2 Nuisance, the Morality of Neighbourliness, and Environmental Protection J.E. PENNER INTRODUCTION T HE LAW OF nuisance is often, perhaps typically, described with some frustration, as an ill-defined branch of tort law with an inadequate the-oretical basis which, for example, makes resolving its relationship to the tort of negligence very difficult. 1 The frustration can be eased, however, by bear-ing in mind that the law of nuisance is a development of the common law, as a result of which it has its own “proprietary” and “atheoretical” subject matter, terms I shall explain below. As to the common law nature of nuisance: when a lawyer, academic or prac-tising, is faced with sorting out any particular branch of the common law, there is a perennial tension between achieving the goal of precise definition and theo-retical explanation on one hand and accommodating the reasoned decisions in actual cases on the other. I hasten to say that this is not to be confused by those under Dworkinian influences with a tension between the “fit” of one’s theory of a branch of law with the cases as against the “substance” of justice, as defined by the best moral philosophical theory one can muster. 2 The tension here is one of explanation. As analysts of the common law, we naturally accord great respect to the actual decisions in actual cases and the reasons given for them. In the crucible of actual contests where the rights and fortunes of real people are at stake, we correctly suppose that, generally, judges acting in good faith will decide a case based upon reasons which will have a good deal of rational appeal to the litigants which, even if unfavourable to their cause (which will be the case for half of them), will at least express as persuasively as possible the sense or logic of the law’s appreciation of the situation giving rise to the conflict.

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  Compensating Landowners in the Vicinity of Airports

  A Comparative Study of the Neighbour Conflict

  • Magdalena Habdas(Author)
  • 2023(Publication Date)
  • Routledge

    (Publisher)

  215

  213 M. Russo, ‘Productive Public Nuisance: How private individuals can use Public Nuisance to achieve environmental objectives’, (2018) 5 University of Illinois Law Review 1974–1975.

  214 Keating (2012), 10.

  215 Van der Merwe (1987), 109; Nolan (2013), 262.

  This is where a difference in approaches among jurisdictions to the phenomenon of nuisance may be observed. As already examined in Section 1.2, some legal systems place nuisance within tort law, others within property law or at the intersection of tort and property.216 This has natural consequences in the available remedies, once it is established that nuisance has reached a level at which no one should be required to tolerate it. Nevertheless, in most jurisdictions, the main measure of protecting against nuisance is ensuring that it is discontinued, whereas compensation for damages is seen as a separate matter and is approached differently in various legal systems.217 In property law, the basic remedy for violating someone’s right of ownership is, apart from the action to return the thing to the owner (actio vindicatio), the action of cessation (actio negatoria), which is both an action and a remedy.218 Both actions are dedicated to the protection of the ownership right and are available per se, so in order to rely on them no damage needs to be proven or sustained. The cessation action applies to all violations of ownership which do not consist of depriving the owner of physical control over a thing. The aggrieved owner is essentially suing for the indirect interferences to stop and the success of the claim does not depend on whether immissions are being caused intentionally or unintentionally, in bad or in good faith.219 The action of cessation does not encompass claiming compensatory damages. Obtaining them requires showing economic (e.g. costs necessary to clean land contaminated by noxious discharge from neighbouring land, costs of treating impairment of hearing caused by excessive noise) or non-economic loss (e.g. violation of personality rights, such as dignity and peace of mind, by causing pain and suffering) for which the lawmaker makes someone responsible. This denotes applying principles of tortious liability,220 whether strict or based on fault,221

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  Economic Torts and Economic Wrongs

  • John Eldridge, Michael Douglas, Claudia Carr(Authors)
  • 2021(Publication Date)
  • Hart Publishing

    (Publisher)

  7 Economic Wrongs and Private Nuisance: A Common Law Perspective PAULA GILIKER * I. Introduction The tort of private nuisance 1 seeks to protect the plaintiff from unlawful inter-ference with his or her use or enjoyment of land, or of some right over, or in connection with it. As a tort protecting land rights, it is often termed a ‘property’ tort 2 and this trait influences who can sue and the remedies provided. Only plaintiffs with a legal right to, or exclusive possession of, the land, will be able to sue. 3 Remedies equally respond to an ‘undue’ interference with the plaintiff ’s land rights. Compensation will be awarded for diminution in value of the plaintiff ’s land and for loss of its ‘amenity value’. 4 In the leading nineteenth century case of St Helen’s Smelting Co v Tipping , 5 Lord Westbury made it clear that private nuisance would not only remedy physical (material) damage to property (for example damaged crops and buildings), but would extend to sensible personal discomfort (caused, for example, by fumes and noxious gases). In this latter category, however, * Professor of Comparative Law, University of Bristol. 1 This chapter will not cover the law relating to the rule in Rylands v Fletcher which is part of private nuisance in the law of England and Wales, but is treated as part of the tort of negligence in Australia: see Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 (HCA). To avoid clumsy duplication, the chapter will also use the term ‘plaintiff ’ in relation to English and Australian law, although English law now prefers the term ‘claimant’. 2 D Nolan, ‘“A Tort Against Land”: Private Nuisance as a Property Tort’ in D Nolan and A Robertson (eds), Rights and Private Law (Oxford, Hart Publishing, 2011) 459. 3 Hunter v Canary Wharf Ltd [1997] AC 655 (HL). For complications this may cause to business plaintiffs, see Colour Quest Ltd v Total Downstream UK Plc [2010] EWCA Civ 180, [2011] QB 86.

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  Delict Essentials

  • Francis McManus(Author)
  • 2017(Publication Date)
  • EUP

    (Publisher)

  Buckley J went on to state that the growing corpus of human rights law dictated that the appropriate remedy, in terms of the law of nuisance, should be that of damages, as opposed to an injunction or a declaration. Not for distribution or resale. For personal use only. THE LAW OF NUISANCE 45 However, in the Outer House case of King v Advocate General for Scotland (2009) Lord Pentland refrained from expressing a view as to whether Dennis represented the law of Scotland. Motive of the defender If the relevant state of affairs is generated by the defender simply to punish the pursuer, that is to say it is motivated by spite, the courts are readily inclined to hold that the state of affairs ranks as a nuisance. For example, in the leading case of Christie v Davey (1893) the claimant’s family were musically inclined and frequently practised their instruments to the annoyance of the defendant who retaliated by banging trays on the party wall which separated his house from that of the claimant. It was held that the noise which was generated by the defendant amounted to a nuisance in law, because it was motivated by spite. Similarly, in Hollywood Silver Fox Farm Ltd v Emmett (1936) the claimant bred foxes on his land. The defendant objected to this practice and caused guns to be fired on the boundary which separated his premises from those of the claimant. It was held that the noise constituted a nuisance in law. Locality The nature of the locality has a bearing on whether a state of affairs can rank as a nuisance in law ( Trotter v Farnie (1830)). The reasoning behind this approach is that if a state of affairs is typical of a given locality, the pursuer would be presumed to have become habituated, at least to some extent, to the nuisance in question.

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  Scottish Environmental Law Essentials

  • Francis McManus(Author)
  • 2019(Publication Date)
  • Edinburgh University Press

    (Publisher)

  3 STATUTORY NUISANCE INTRODUCTION In the last chapter we looked at how a private individual can invoke the common law to secure redress against the defender whose conduct unreasonably interferes with the former’s enjoyment of land. However, the common law has its limitations. For one thing, to raise an action in nuisance is expensive. We have also seen, in Hunter v Canary Wharf Ltd ([1997] Env LR 488), that the pursuer requires a proprietary interest in the land that is affected by the conduct of the defender, in order to raise an action in nuisance. In this chapter we look at the subject of statutory nuisance which, as we have seen (p. 3, above), has its origins in the mid-nineteenth century. Currently, the law relating to statutory nuisance is found in ss. 79–82 of the EPA 1990, to which we now turn our attention. STATUTORY NUISANCES Section 79(1) of the EPA designates a variety of adverse environmental circumstances as a nuisance. We now look at each in turn. Premises Under s. 79(1)(a) ‘any premises in such a state as to be prejudicial to health or a nuisance’ rank as a statutory nuisance and, therefore, fall to be dealt with in terms of the EPA. The subsection comprises two quite separate limbs, namely: (a) premises that are prejudicial to health; and (b) premises that are a nuisance. Therefore, in order to rank as a statutory nuisance the relevant premises must either be prejudicial to health or a nuisance, or both. ‘Prejudicial to health’ In order for premises to be prejudicial to health, in terms of the EPA, the physical state of the premises must be prejudicial to health, in contrast to the use to which the premises are put (see, e.g., R v Parlby (1889) 22 QBD 520). Furthermore, it is not sufficient that 22 SCOTTISH ENVIRONMENTAL LAW ESSENTIALS the relevant state of affairs simply interferes with human comfort. Rather, the premises must affect human health: Salford City Council v McNally [1976] AC 379.

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  Great Debates in Tort Law

  • Jonathan Morgan(Author)
  • 2022(Publication Date)
  • Hart Publishing

    (Publisher)

  NUISANCE AND THE ENVIRONMENT 341 130 Coventry (n 42) [205], [212] (compare discussion in M Lee, ‘Tort Law and Regulation: Planning and Nuisance’ [2011] JPL 986). 131 [1996] Ch 19, 36. 132 Watson [2008] EWHC 759 (QB) | [2008] 3 All ER 1171, [54]–[56]. 133 Tetley v Chitty [1986] 1 All ER 663. 134 Lee, ‘The Public Interest in Private Nuisance: Collectives and Communities in Tort’ [2015] CLJ 329. 135 AI Ogus and GM Richardson, ‘Economics and the Environment: A Study of Private Nuisance’ [1977] CLJ 284, 319. (On the wider economic question cf A Thomas, ‘Reassessing the Regressivity of the VAT’ (OECD, 2000).) 136 Lee (n 134) 333. 137 ibid. noted that such an exercise has frequently been carried out to justify courts rejecting the relevance of planning permission. 130 For example in Wheeler v Saunders, the grant had serious procedural flaws. The defendants’ application for planning permission had given the ‘misleading’ impression that it would not intensify their pig-farming operations. The planners had also failed to consult the council’s own environmental health department. Peter Gibson LJ described the grant of permission as ‘incomprehensible’. 131 Faced with such a procedurally questionable planning process, little wonder that the court was unenthusiastic about allowing it to override the claimant’s property rights. Other examples of procedural flaws include public inquiries allowing applicants to dictate their own acceptable levels of noise, 132 or a local authority granting permission to its own tenant. 133 Controversy is inherent in balancing the public interest against private rights, as Lee fully accepts. 134 Even apparently neutral, obviously just principles can prove controversial. For example, it popular to call for ‘polluters to pay’ so that goods and services reflect their true (environmental and social) cost.

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  Rights and Private Law

  • Donal Nolan, Andrew Robertson(Authors)
  • 2011(Publication Date)
  • Hart Publishing

    (Publisher)

  Private Nuisance Law: A Window on Substantive Justice 505 ant did was reasonable because the defendant’s expected gains outweighed the expected losses to those put at risk. That argument is much more likely to lead to a punitive damage award than a finding of reasonableness. Unless the person(s) put at risk by the defendant’s conduct or activities are trespassers on the defendant’s land, in which case the defendant’s rights are paramount, the defendant’s creation of significant foreseeable risks to others’ persons or property is unreasonable unless the risks are necessary in order for those others to obtain, directly or indirectly, desired benefits that substantially outweigh the risks, are not too serious, and are risks about which they have been warned if it was feasible to do so. 59 The equal freedom, rights-respecting (rather than utilitarian efficiency) nature of the references to reasonableness in private nuisance doctrine is elaborated, albeit with considerable obfuscation, in the first and second Restatements . The gravity–utility balancing test in section 826 of each Restatement is a misleading charade, although one must wade through a number of other sections and comments before this becomes clear. The introductory note to the discussion of private nuisance in the First Restate-ment states: ‘For the purpose of determining liability for damages for private nuisance, conduct may be regarded as unreasonable even though its utility is great and the amount of harm is relatively small.’ 60 Both the first and second Restatements list three factors as important in determin-ing the utility of the defendant’s conduct: (a) the social value that the law attaches to the primary purpose of the conduct; (b) the suitability of the conduct to the character of the locality; and (c) the impracticability of preventing or avoiding the invasion. 61 Social value depends on whether the ‘general public good’ is advanced.

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