Torts Connected to Land: Public Nuisance

 L.O:

1. Define public nuisance
2. Explain the main difference between public and private nuisance
3. Explain the fault element for a public nuisance
4. Explain a 'class of Her Majesty's subjects'
5. Explain the main criticisms of public nuisance
6. Explain suggestions for reform
7. Explain the bringing of civil actions for public nuisance
8. Identify relator actions for public nuisance
9. Identify the specific defence to public nuisance
10. Identify the main civil remedies to a public nuisance

Definition of a Public Nuisance

A public nuisance is a nuisance "which materially affects the reasonable comfort and convenience of a life of a class of Her Majesty's subjects"

• Attorney General v PYA Quarries Ltd [1958]:
• The defendants used a blasting system in their quarry which caused noise and vibrations, and threw out dust, stones and splinters affecting people living nearby. The Court of Appeal held that this could amount to a public nuisance, which included Romer LJ's definition, and which has been taken to include a whole range of activities which endanger the public, cause them inconvenience or discomfort, or prevent them exercising their rights
• It was held that a substantial class of people must be affected by the nuisance
• The dust affected 30 households
• The closest the courts got to saying how many people constituted a class was when they said it would be more than two or three, but they said any more would be a question of fact in each case
• An injunction was granted as the result of a 'relator action' to prevent the defendant from emitting quantities of stones, splinters, dust and vibrations from their quarry. A relator action is when an injunction is sought to stop a person committing a public nuisance. Relator actions are brought in the name of the Attorney General and are very rare today
• Benjamin v Storr (1974)
• A man who owned a coffee shop in Covent Garden in London had trade interrupted by tradesmen servicing the business opposite his shop blocking access and restricting light with his horses and carts
• The claimant said that he was affected more than other people because the horses stank and scared away all of his customers, or at least enough to affect trade
• It was held that the claimant must have suffered damage over and above the other members of the class

Activities amounting to a public nuisance were held to be:

• Thomas v NUM (1985) - picketing on a road, preventing access
• Rose v Miles (1815) - Blocking a canal
• Lyons v Gulliver (1914) - Obstructing a highway by queueing on it
• R v Johnson (1996) - making obscene phone calls to multiple women
• Attorney General for Ontario v Orange Productions (1971) - a badly organised pop festival

R v Rimmington (2005):

• The House of Lords tried to clarify when a group of individuals targeted by offensive behaviour could amount to being a class of people for the purposes of the Tort - it said that randomly selected members of ethnic minorities did not on the facts amount to a class of the public. It was decided that sending 538 pieces of offensive material did not affect enough of the public - to the extent that it could be called a 'common injury'

Tate and Lyle Food Distribution Ltd v The Greater London Council (1983)

• The defendants were building a ferry terminal in the same part of the river Thames that the claimants had a jetty for the use of their business
• The part of the Thames they were using became all silted up because of the works, requiring dredging to free it up. It also led to traffic being confined to a narrow channel of the river, causing traffic
• Their claim in negligence and private nuisance failed since they did not possess any private rights which enabled them to insist on any particular depth of water
• The claim succeeded in public nuisance since the interference caused by the ferry terminals affected public navigation rights

Archibold's Definition

"A person is guilty of a public nuisance (also known as common nuisance) who (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 or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects"

Difference with a Private Nuisance

• A public nuisance differs with a private nuisance on the basis of who is affected by the nuisance
• A public nuisance affects a representative cross-section of a class of society in a neighbourhood
• ALSO - the 5 rules in Rylands v Fletcher (1868)
• The defendant must control the land from which the problem has come;
• The defendant must have brought or accumulated something in the course of some "unnatural use" or the land;
• The thing brought or accumulated must be "dangerous", i.e likely to cause damage if it escapes from the land;
• There must be an escape of the dangerous thing;
• There must be damage as a result of the escape;

Public Nuisance: A Crime

• A public nuisance is a crime

Mode of Trial

Under the Magistrates Courts Act 1980, s17(1) and Sch.1, public nuisance is an offence which is triable either way. This means that it can be tried in either a magistrates' court or in the Crown Court

The Fault Element

• There is no requirement of intention or recklessness in the offence of public nuisance; the fault element is one of foreseeability of the risk of the type of nuisance
• The defendant is liable if they knew or ought to have known of the risk of the type or kind of nuisance that in fact occurred
• This type of foreseeability was established in Wagon Mound (No.1) and reiterated in Cambridge Water Co v Eastern Counties Leather PLC (1994)
• It is the same type of foreseeability in private nuisance
• The term 'fault element' is sometimes referred to as mens rea in criminal law

What needs to be foreseeable?

• The Court said that foreseeability of the type of damage suffered is a pre-requisite for establishing liability in public nuisance
• When discussing foreseeability, it is important to mention the principle of remoteness

Foreseeability

R v Goldstein (2006):

• The defendant had enclosed some salt in an envelope with a cheque. It was intended as a joke both because of the age of the debt and as a reference to a recent anthrax outbreak he and the recipient had discussed.
• The salt leaked out of the envelope at the Post Office sorting office, creating an anthrax scare and subsequent evacuation
• The House of Lords held that there was no public nuisance because it was not proved that the defendant knew or reasonably should have known that the salt would escape from the envelope and cause a nuisance. No Mens Rea.

Affecting a Representative Cross-Section of a Class of Society in a Neighbourhood

Romer, LJ stated:

"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, in my judgment, 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..."

A Widespread and Indiscriminate Nuisance

Denning, LJ stated:

"I decline to answer the question how many people are necessary to make up Her Majesty's subjects generally. I prefer to look to the reason of the thing and to say that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large"

Class of People: Local Communities

• R v Ruffell (1991)
• The defendant had pleaded guilty to causing a public nuisance. The nuisance had consisted of an "acid house" party. A side road to the site had been blocked by traffic. There had been very loud music playing all night. The woodlands around the site had been littered with human excrement
• The class of people affected by the nuisance were the local residents
• The defendant unsuccessfully appealed to the Court of Appeal against the custodial sentence imposed in the Crown Court

Class of People: Group with a Common Interest

• R v Ong (2001)
• The defendant and others were planning to interfere with the floodlights in the course of the Premier Division match between Charlton Athletic and Liverpool football teams. They pleaded guilty to conspiracy to commit a public nuisance (and another offence)
• The class of people that would gave been affected by the nuisance were the football spectators
• The defendants unsuccessfully appealed to the Court of Appeal against the custodial sentences imposed in the Crown Court

Class of People: Impact on the Community

• R v Lowrie (2004)
• The defendant who had made a number of hoax calls to the emergency services pleaded guilty to causing a public nuisance. He appealed unsuccessfully to the Court of Appeal against the custodial sentence imposed
• The class of people that would have been affected by the nuisance were those people who were in genuine need of help by the emergency services but could not get help because the emergency services had been diverted elsewhere by the hoax calls

Sending Abusive Letters

• R v Rimmington (2006)
• The House of Lords held that sending racially offensive materials to members of the public was not a public nuisance. Their reasoning was that sending individual letters to individual people did not constitute a nuisance affecting a class of people
• The House of Lords also stated that common law offences such as public nuisance should not be used for conduct covered by a statutory offence unless there was a good reason. Rimmington could have been prosectured under the Malicious Communications Act 1988

Making Obscene Telephone Calls

• R v Johnson (1997)
• The Court of Appeal held that making obscene telephone calls to a number of women in a geographic area was a public nuisance. However, the House of Lords indicated in R v Rimmington (2006) that such behaviour is unlikely to amount to a public nuisance as they were separate calls made to separate people rather than a class of people
• Making obscene telephone calls can now be prosecuted under statutory provisions such as the Communications Act 2003

Law Commission Report No.358

The Law Commission indicated in 2015 that:

1. Prosecutions for public nuisance were still occurring despite the presence of relevant statutory provisions
2. Some nuisance telephone call cases were still being prosecuted as a public nuisance

Both of the above indicate that limitations on prosecution imposed in Rimmington were not being 'reflected in practice'

• The Law Commission said that if a person wants compensation, then Tort is the correct choice, but usually it would make more sense for a Criminal Prosecution to occur first before initiating the civil procedure of a Tort claim. Then, if one wants to pursue a claim in damages, it is usually pretty strong evidence of civil liability when there is a criminal conviction

Public Nuisance: Questions

What criticisms does the Law Commission make of the law on public nuisance?

How does the Law Commission suggest that the law on public nuisance could be reformed?

Civil Actions Against Public Nuisance

Civil actions can be brought against those committing a public nuisance in three ways. The remedies sought will be damages and a prohibitory injunction

1. By a relator action. These are brought in the name of the Attorney General on behalf of a private citizen who has persuaded the Attorney General to agree to the action. Such actions are rare
2. By a local authority under the Local Government Act 1972
3. An action for tort by a private citizen who can show that he has suffered special damage beyond that experienced by the others of 'Her Majesty's subjects'

Relator Actions

Relator actions (legal actions brought by someone with a "right" in the land) for public nuisance are very rare. Possible reasons for this include:

1. There are statutory bodies such as local authorities who will usually bring the actions
2. The Attorney General is unlikely to agree to a relator action unless there is special damage and, if there is special damage, private citizens can bring actions in their own name without the permission of the Attorney General
3. Most nuisance which affects the citizen can be prosecuted under statutory provisions rather than public nuisance

It is often the case that the Attorney General will receive no applications for a relation action in one particular year

Specific Remedy for Public Nuisance

In addition to the general defences to tort, statutory authority is the main specific defence to public nuisance. This means that the alleged nuisance is permitted by statute

Prescription cannot be used as a defence to a charge of public nuisance

Civil Remedies for Public Nuisance

The main civil remedies for public nuisance are damages and injunctions

In terms of Public Nuisance, how do you define interference?

• It must be indirect, of a continuing nature (see PYA quarries) - it MUST interfere physically with a class of people's enjoyment of their property, and must not be a mere interference with a 'thing of delight' such as a view
• Damage can also result from the defendant's part in the damage caused by a naturally occurring hazard e.g heavy rainfall. The defendant will be responsible if they fail to take reasonable precautions
• All of this is subject to reasonableness - the abnormal sensitivity of the claimant and the locality must be taken into account

Whom do you sue?

• The person creating the nuisance
• The occupier of the land where it originated
• The owner of the land if they knew about what was going on and failed to take reasonable steps to prevent it

Summary

Public nuisance is a crime as well as a tort; it must materially, which can mean physically, affect one's enjoyment of one's property, which can be by sound, smell, or physical damage, and must be of something more substantial than a 'delight' e.g a view

Defences

• Normal Tort defences apply, but prescription does not. This is where an activity has been going on for years, apparently without complaint from anyone else. Why the potential claimants didnt complain is a factor in the likely success of a claim
• BUT - it is never a defence to say that the claimant came to the nuisance and so apparently accepted its consequences