PUBLIC NUISANCE

Summary of this section (updated August 2025)

The historical background – the tort of public nuisance always a crime until 2022 – ‘special damage’ conferring a right to sue in the civil courts – reasonable comfort and convenience of life of a class of Her Majesty’s subjects – s.222, Local Government Act – are public and private nuisance mutually exclusive? – the duty to prevent / abate a public nuisance – personal injuries / public health – highway cases

Note: general rules and principles relevant to the following will be found elsewhere on these pages: (i) defences and (ii) remedies.

Introduction

The law of public nuisance, broadly speaking, encompasses matters which are likely to ‘endanger the life, health, property, or comfort of the public, or obstruct the public in the exercise or enjoyment of rights common to all’.

According to one commentator, a public nuisance is an “offence against the public, either by doing a thing which tends to the annoyance of all the [King’s] subjects, or by neglecting to do a thing which the common good requires”. According to another: “common nuisances are such inconvenient or troublesome offences, as annoy the whole community in general, and not merely some particular person”.

At the same time, to be actionable (i.e. subject to legal proceedings in the civil courts), the individual or individuals must have sustained some non-trivial damage over and above that sustained by the public at large.

Until the enactment of s.78, Police, Crime, Sentencing and Courts Act 2022, a public nuisance was first and foremost a common law crime, having, over centuries, opened up a very wide-ranging set of largely randomly related circumstances both to prosecution and the possibility of civil proceedings (although a substantial body of these circumstances were obstructions to the highway, including the navigable right of way).

It has repeatedly been said that anyone seeking to find a coherent set of themes in public nuisance will be disappointed, public nuisance having been described as a “sort of legal garbage can” and as a “rag-bag of odds and ends”.  There are similarities with the categories of statutory nuisance under s.79, Environmental Protection Act 1990 (e.g. “fumes or gases emitted from premises so as to be prejudicial to health or a nuisance” or “any accumulation or deposit which is prejudicial to health or a nuisance” (s.79(c),(e)).

The tort of public nuisance is not immediately connected with private nuisance, in particular because it is not a tort necessarily connected with the use and enjoyment of land.  However, in civil proceedings, it is by no means uncommon for remedies to be sought via both private and public nuisance in the hope or expectation that if one fails then it may be that the other will succeed. Whilst public nuisance cannot be defined as a tort connected with the use and enjoyment of land, it can also be employed where the enjoyment of property is in issue, for instance where an obstruction on the highway prevents access to land or sufficient light in a building. 

In this part of the website, a brief historical introduction will be provided, since this is probably the best way to understand how public nuisance cases have come to be developed by the courts.  Then there will be an account of various matters relevant to the application of the criminal law, since these must be satisfied if there can be a public nuisance which is actionable in the civil courts.  These lead to the two further counterbalancing considerations.  The first is “What constitutes a ‘class’ of people affected”?  The second is “What constitutes special damage”?  After a brief discussion as to whether or not public and private nuisance are mutually exclusive, three areas of the tort are considered: the duty to prevent / abate a public nuisance on the part of a landowner, personal injuries / public health and finally, highway cases.

This page does not consider the criminal offence under s.78 of the 2022 Act or the use of s.78 in the context of injunctions against protestors or other groups of individuals.   

Historical background

It has been convincingly argued that public nuisance is a historical anomaly, having provided the first means, centuries ago, for resolving conflicts between competing uses of land or ‘quality of life’ issues (such as open waterways, clear roads, wholesome air, unsanitary houses, smelly pigs or rubbish placed on the highway). These conflicts affected the local community, rather than private individuals and the enjoyment of their land (as predecessors of the tort of private nuisance).

Adjudication of such claims could only take place in the local criminal courts (the leet courts).  However, as a more sophisticated court system developed, the judges also started to provide civil law remedies in respect of these common, local, problems. This historical development is manifest in public nuisance as it exists today.

Public nuisance as a criminal offence

Until s.78, Police, Crime, Sentencing  and Courts Act 2022, all public nuisances were necessarily criminal offences a common law.  The standard definition of the common law crime of public nuisance was that: “a person is guilty of the criminal offence of public nuisance if that person (a) does an act not warranted by law or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects”.  The new statutory offence under s.78(1) reflects this definition.

By s.78(6): “The common law offence of public nuisance is abolished”.  But by s.78(8): “This section does not affect – … (b)  the civil liability of any person for the tort of public nuisance”.

As originally drafted, s.78(8)(b) referred to “civil liability for any act or omission within subsection (1)”, demonstrating that a claimant would have to prove an offence contrary to the new statutory offence, but the replacement of this wording with “the tort of public nuisance” demonstrates that a civil claim no longer requires the underlying commission of any criminal offence.  The tort of public nuisance was formerly parasitic on the commission of a criminal offence, but that is no longer the case.

Judges will have previous cases on which to develop the common law, but whether they will consider themselves to have a wide new-found freedom, or whether they will consider themselves constrained by the previous requirement of an underlying offence similar to the type now which falling within the ambit of s.78(1), remains to be seen.

What proportion of people must have been affected?

In order to make out a case of public nuisance as an actionable civil wrong, the act or omission contemplated must have been “likely to inflict significant injury on a substantial section of the public”.  This requirement will still need to be demonstrated.

In White (1757), for instance, a public nuisance was committed where “all the King’s liege subjects” living in Twickenham were affected by air with “noisome and offensive stinks and smells”.  In Vantandillo (1815) a public nuisance occurred where customers at a rifle range in the fields of Bayswater caused “noise, damage, disturbance and mischief in the area”.

PYA Quarries (1957) concerned quarrying activities which were said to cast stones and splinters into the local area, causing a dust nuisance and vibrations.  One of the judges in the case said that a public nuisance is one which “materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects”.  He went on: “The sphere of the nuisance may be described generally as ‘the neighbourhood’; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case.  It is not necessary … to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected for an injunction to issue.”  In other words, whether or not a significant proportion of the public has been affected, is entirely a matter of fact and degree.  The nuisance must be either “widespread” or “indiscriminate”.

In Jan De Nul (2000), about siltation caused by dredging operations, the judge decided that just because only a few members of the public in fact exercised the right of navigation, this did not detract from the fact that there was such a right available to the general public. 

Special damage and the right to take proceedings

An individual who wishes to make a claim for a remedy in public nuisance must additionally be able to show some damage suffered over and above that sustained by the public generally.

This means that the claimant must be able to demonstrate (a) the effect of some particular type of injury to himself beyond that which is suffered by the remainder of the public, (b) that the injury has been ‘direct’ and not consequential and (c) that the injury has been ‘substantial’ and not temporary or trivial (i.e. not ‘de minimis’) (Benjamin, 1874).

Whether or not an individual has sustained a particular, or special, damage over and above that experienced by other members of the public, is a matter of fact. The key question is whether it is enough that the damage is different in extent and degree (i.e. quantitative), or different in nature and type (qualitative). The policy consideration is whether there might be a multiplicity of proceedings brought by many people who have all sustained the same type of injury: this would not be acceptable to the courts, although it has been convincingly been argued that in the conteext of group litigation, any such problem can bee ironed out by procedural management.

The relevant considerations have not yet conclusively been addressed by the higher courts in England & Wales, but it would seem that where there is a qualitative difference, then this is more likely to constitute “special” damage enabling a person to obtain a remedy.

See Jan De Nul (2000), which approved what was said in the Australian case of Walsh (1952): “delay and inconvenience of a substantial character, direct and not merely consequential, so  long as not merely similar in nature and extent to that in fact suffered by the rest of the public, may amount to sufficient damage, particular to the individual plaintiff, notwithstanding that, in another sense, it is “general” and not “special” damage to him”.

In cases where all members of the public are equally, then only the Attorney-General has a right to take civil proceedings, but presumably only if an offence can be identified (Hickey, 1970). However, a highway authority has the right to take proceedings by virtue of s.130, Highways Act 1980 where proceedings will protect the public’s rights, and a local authority may initiate a claim in its own name where it considers it expedient to do so for the protection of the interests of the inhabitants of the area (see s.222, Local Government Act 1972).

Once a prima facie case of public nuisance has been made out, then the burden of proof switches to the defendant to find some justification or excuse.

Are public and private nuisance mutually exclusive?

The law of private nuisance and of public nuisance are different, in particular by reason of the fact that they protect different interests. As mentioned above, Private nuisance protects landowners in the use and enjoyment of their properties, whereas public nuisance exists above all for the purpose of the protection of the wider local public.

That said, these are by no means mutually exclusive torts, and it may be quite possible to make a claim in the civil courts under both headings. Indeed concurrent claims in private and public nuisance were made in British Celanese (1969) (concerning a single explosive event) Jan De Nul (2000) (siltation of a navigable river) and Colour Quest (2009) (the Buncefield explosion).

The duty to prevent / abate a public nuisance

The occupier or owner of land is under a duty to ensure that that land does not become a public nuisance.  It does not matter how the nuisance arises, whether, for instance from refuse thrown on to the land from time to time, from the accumulations of seaweed in a harbour, polluting liquid or sewage in a canal, or pigeons which roost under a railway bridge.  Liability arises where the occupier knows of the existence of the nuisance, has the means to prevent or abate it and fails to do so within a reasonable time.  As it has been said, the landowner’s business “is to prevent his land from being a public nuisance … whenever he becomes aware that there is a nuisance, the duty to abate it at once arises” (Tod Heatley, 1897).

Personal injuries / public health

One area of obvious incompatibility between private and public nuisance is that in public nuisance cases damages are recoverable where the claimant has sustained personal injury.  The stand-out exemplar of this is Corby (2008) in which it was alleged that the claimants’ birth defects were connected with an inadequate contamination clean-up operation.  Causation was never determined by the courts, but the courts saw no reason to change the position as established by the authorities (that personal injuries are recoverable in public nuisance), despite objections from academics.

See also AB (1992) in which it was alleged that a quantity of aluminium sulphate had been accidentally introduced into the drinking water system at a water treatment works operated by the defendant water authority (liability was admitted).

Highway cases

Highway cases cover a particularly wide variety of circumstances.

First, there are those cases concerned with obstruction.  As to these, a temporary or emergency stop on a highway will be unlikely to constitute an obstruction.  But where the highway has otherwise been made less commodious by a person’s acts, then a public nuisance will have been committed because there has been an interference with the right of the public to pass along it freely.  The fact that the highway is not blocked is neither here nor there.  This is because, even if the right of way is in fact little used except by one or two people, it will affect everyone who wants to use it indiscriminately, with the result that the nuisance is sufficiently widespread so as to be capable of being a public nuisance (see PYA Quarries, (1957), Tate & Lyle (1983) and Jan De Nul (2000).

A frontager is in a rather different position, which is an exception to the general rule in the case of obstruction.  The question whether a householder is or is not obstructing a highway is to be judged by balancing, according to standards of reasonableness, the conduct of the householder on the one hand and the demands of members of the public on the other.  Thus, the erection of scaffolding along the highway to build an extension, and the laying of a hosepipe across the highway, have both been considered reasonable (Harper, 1933 and Trevett, 1955).

Where some danger attaches to a person’s use of the highway, whether by reason of some obstruction (giving rise, for instance, to a collision), or by way of the use of adjacent land (for instance by reason of disrepair), then a stricter standard may be imposed.