The historical background – role of the Attorney General – public nuisance as a crime affecting the public at large – ‘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 – PYA Quarries
The law of public nuisance, very broadly speaking, encompasses matters which concern public health and the highway, issues which can have a significant effect on the local population.
Public nuisances are always criminal offences and they may be enforced against by the Attorney-General or by the local authority for the benefit of the wider community.
At the same time, a private individual (or individuals) may obtain a civil law remedy (for instance an injunction or damages) as long as it is possible to show some special wrong over and above that suffered by the rest of the affected public. These pages are concerned mainly with the very general principles which are relevant in the case of claims by private individuals. Anyone seeking to find a coherent set of themes in public nuisance will find the task much more difficult than is the case with private nuisance.
It is worth adding that whilst public and private nuisance protect different interests, they have overlapping aims. In private law proceedings, therefore, it is by no means uncommon for remedies to be sought via both routes. If one fails then it may be that the other succeeds.
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.
- Public nuisance as a criminal offence
- Proportion of people affected?
- Special damage and the right to take proceedings
- Are public and private nuisance mutually exclusive?
- The duty to prevent / abate a public nuisance
- Personal injuries / public health
- Highway cases
The law of public nuisance has been described as a ‘rag-bag of odds and ends’. It has been convincingly argued that public nuisance is a historical anomaly, riding on the coat-tails of private nuisance.
Centuries ago, early commentators began to compile court records of judgments concerning different types of nuisance which affected individuals in the enjoyment of their properties (precursors of private nuisances, where a right to exclusive occupation must be proved). Over time, these commentators felt it necessary to add accounts of similar types of nuisance which affected the local community (rather than private individuals and the enjoyment of their land).
Originally, adjudication of these latter claims would only take place in the local criminal courts (the leet courts). Inevitably, they concerned activities which were prevalent in the community, such as smelly pigs or rubbish placed on the highway. 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. All public nuisances are criminal offences. They must have affected a significant proportion of the Queen’s subjects. They tend to affect public health, or are concerned with the use of the highway. In particular, they tend to continue to cover the same subject-matter as they did centuries ago, and these are often topics which are also the subject-matter of private nuisance proceedings. As has already been said, they are actionable in the civil courts where the claimant can show some special wrong over and above the damage done to the rest of the affected community. Public nuisance only has a very loose historical connection with private nuisance, and they are concerned with very different interests.
Public nuisance as a criminal offence
All public nuisances are crimes. One standard work on the criminal law states 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 omission is “to endanger the life, health, property, morals, or comfort of the public”. Another has said that a public nuisance is an “offence against the public, either by doing a thing which tends to the annoyance of all the Queen’s subjects, or by neglecting to do a thing which the common good requires”. A third commentary explains that “common nuisances are such inconvenient or troublesome offences, as annoy the whole community in general, and not merely some particular person”.
Even where the matter said to constitute a private nuisance consists of physical damage, a criminal offence has still been committed (Jan De Nul, 2000).
What proportion of people must have been affected?
In order to make out a case of public nuisance, the act or omission contemplated must have been “likely to inflict significant injury on a substantial section of the public”.
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.
PYA Quarries (1957) provides some additional assistance in answering the question whether there is a wide enough class of people affected, by providing an indication as to the purpose behind the rule. The question whether or not a nuisance is either “widespread” or “indiscriminate” is relevant because it reflects the court’s response to the demand on its time. The court will respond (by entertaining a claim in public nuisance on the relation of the Attorney-General) if it would be unreasonable to expect only one person to take proceedings to put a stop to it.
Special damage and the right to take proceedings
An individual who wishes to make a claim for a remedy in public nuisance must 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)). These are issues of fact.
In cases where serious pollution has affected all members of the public equally, only the Attorney-General has a right to sue (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).
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. 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 probably Corby (2008) in which it was alleged that the claimants’ birth defects were connected with an inadequate contamination clean-up operation.
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 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 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.
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.