Introduction to public nuisance

A public nuisance is a crime. Very occasionally, however, it may also be a tort where the
harm suffered is by a section of the community or the community as a whole.
Many areas of public nuisance, such as pollution, noise and public health measures,
have now become regulated by statute and statutory regulations e.g. s.79 Environmental
Protection Act 1990. As a result, public nuisance is now a residual method of dealing with
certain interferences that cannot be dealt with by other means or where an individual
wishes to claim common law damages.
The kind of behaviour that might constitute a public nuisance is varied but probably the
most common is obstruction of Her Majesty’s highway. This activity is also now regulated
by highways legislation.
Definition of public nuisance:
Public nuisances giving rise to an action in tort have been defined as:
"...acts or omissions of the defendant that materially affect the reasonable
comfort and convenience of life of a class of Her Majesty’s subjects."
This definition comes from Attorney General v PYA Quarries [1957] 2 QB 169
where dust and vibrations from the defendant’s quarry were held to be sufficiently
widespread in their effect for them to be a public nuisance. The action involved over
30 households within the local area.
Public nuisance preliminaries

As with private nuisance, there are preliminaries to consider before looking at the
elements that make up the tort of public nuisance. The preliminaries are:

1. Who can sue in public nuisance?

2. Who can be sued in public nuisance?
Who can sue in public nuisance?

As already stated, public nuisance is primarily a crime which will be dealt with by a
criminal prosecution (in many cases, by a Local Authority’s Environmental Health
Department).
Where the public nuisance amounts to a tort, the following may bring an action:

1. An individual.
2. A Local Authority.
3. The Attorney General.

Let’s look at each of these categories in turn.

An individual
An individual may be able to sue in public nuisance in very limited circumstances. To
qualify, they must be able to show that they have suffered ‘special damage’ (Ricket v
Metropolitan Railway (1867) LR 2 HL 175). Special damage means that the claimant has
suffered over and above the rest of the class (and that there is, therefore, a class in the
first place) or in a way that is different in kind from that suffered by the rest of the class.
In Colour Quest Ltd v Total Downstream UK Plc, the court stated that ‘special damage’
must be direct and substantial.
An important distinction from private nuisance and the rule in Rylands v Fletcher is that
the individual claimant need not have an interest in the land affected.
Examples of individuals who brought claims in public nuisance:
Case Facts and decision
Tate & Lyle v GLC The claimant recovered the cost of dredging the river approach
[1983] 1 All ER 1159 to a jetty it used which had silted up because the defendants had
built a new ferry terminal, even though the claimant did not own
the river affected. The building interfered with the public right of
navigation and special damage had been caused to the claimant
(the cost of dredging).
Lyons Sons & Co v The defendant caused a queue outside the claimant’s café twice
Gulliver [1914] 1 a day. This was an inconvenience to the public (obstruction of the
Ch 631 highway), and the claimant suffered special damage as his café
trade was severely disrupted as a result (pure economic loss).

Rose v Miles (1815) 4 The defendant obstructed a public canal which prevented the
M&S 101 claimant from transporting his goods. Instead he had to transport
his goods by land which cost more. The act of the defendant was
a public nuisance (inconvenience to the public), but the claimant
could sue as an individual as he had suffered loss over and
above other members of the public (pure economic loss).
Local Authority
A local authority, which has suffered particular damage, may sue on its own behalf. A
local authority may also sue in its own name to protect the inhabitants of its area.
Where the local authority brings a public nuisance claim on behalf of its inhabitants, the
only remedy available is an injunction.

Attorney General: Relator Action

Finally, where a class of people are affected by the public nuisance and no individual
action is possible or forthcoming, the Attorney General may bring the claim on the class’s
behalf in their name. In this instance, the ‘relator’, a representative member of the class
affected (or in some cases the authority that has been affected), will ask the Attorney
General to act on their behalf.
Where the Attorney General brings a public nuisance claim on behalf of a class, the only
remedy available is an injunction.
Who can be sued in public nuisance?

An action in public nuisance is sufficiently rare for there to have been little judicial debate
over the issue of who may be sued. The tortfeasor is usually easily identifiable. Case law
indicates that the creator of the nuisance (Thomas v NUM) or any person who is
‘responsible’ for the nuisance (e.g. an owner/occupier) may be sued.
Elements of public nuisance

Having discussed the preliminaries, the elements that make up the tort of public nuisance
need to be considered:

1. Act or omission;
2. One-off event;
3. Class of Her Majesty’s subjects; and
4. Materially affects comfort and convenience.
Act or Omission
In public nuisance, as in private nuisance, liability can exist for omissions as well as acts,
which may mean that it is advantageous to sue in public nuisance rather than negligence
where omissions are generally not actionable.

One-off Event
A public nuisance can be a one-off or isolated event unlike a private nuisance, which
generally must be a continuing state of affairs.
‘Class of Her Majesty’s Subjects’
To be a public nuisance it is necessary to show that the effect of the nuisance is
sufficiently widespread. There is no exact number of people who have to be affected for
there to be a public nuisance. It will depend upon the facts of the case (AG v PYA
Quarries).
It is not necessary to prove that every member of the class has been injuriously affected,
just that a representative cross-section of the class has been so affected (AG v PYA
Quarries). In this case, Lord Denning said that a public nuisance was a nuisance which
was "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."
In R v Rimmington [2005] UKHL 63, the court held that a ‘class’ referred to a ‘section of
the public’ or ‘the community’ or ‘a significant section of the community’. A class also had
to suffer a ‘common injury’, i.e. be affected at more or less the same time and in the
same location. Rimmington sent around 500 racially offensive items to people across the
country. The people who received the items were not a ‘class’ in the way required by
public nuisance.
‘Materially Affects Comfort and Convenience’ (The Loss)
Damage that is recoverable in public nuisance includes property damage and
consequential economic loss (Halsey v Esso Petroleum [1961] 1 WLR 683) as in
private nuisance and Rylands v Fletcher.
As opposed to private nuisance and Rylands though, damages for personal injury can
also be recovered (Corby Group Litigation v Corby Borough Council [2009] QB 335) as
can damages for pure economic loss (Rose v Miles).
The claimant can also claim for inconvenience (Walsh v Ervin [1952] VLR 361) but the
interference/inconvenience must be ‘material’ i.e. more than trivial (Jan de Nul (UK) Ltd
v Royale Belge SA [2002] EWCA Civ 209). The exact meaning of this is impossible to
ascertain since it will vary with the circumstances of each case. There is no need for
there to be actual damage. Annoyance or irritation will be sufficient, as long as this is
‘material’. In Benjamin v Storr (1873-74) LR 9 CP 400 the claimant ran a coffee house in
Covent Garden. The defendant auctioneers next door created a lot of obstruction and
inconvenience to the claimant (constantly loading and unloading vans which restricted
access to the coffee house and made the coffee house uncomfortable). This interference
was direct and substantial.
The type of loss must also be reasonably foreseeable (Wagon Mound (No. 2) [1967] 1
AC 617.
Defences Remedies

The same defences apply as for private

nuisance except for prescription. Injunctions and/or damages are available
Prescription is not a defence as a person as for private nuisance.
cannot accede to a crime. The main Note that if the claim is brought by the
defence in public nuisance is that of local authority or Attorney General, the
statutory authority. only remedy available is an injunction.
Examples of public nuisance
Case Example
Attorney General of Ontario v A pop festival.
Orange (1971) 21 DLR (3d) 257

Rose v Miles (1815) 4 M&S 101 Blocking a canal.

Thomas v NUM [1985] 2 All ER 1 Picketing on a highway

Castle v St Augustine’s Link (1922) As the claimant drove past the defendant’s golf
38 TLR 615 course, he was struck by a golf ball. Evidence
showed that golf balls were frequently hit onto the
road and amounted to a public nuisance. The class
of persons affected were highway users and the
claimant had suffered special damage.
R v Shorrock [1993] 3 All ER 917 A house party. The police received approximately
275 complaints, some from persons living four
miles away.
Case Example
Wandsworth London Borough Council Defecating pigeons.
v Railtrack plc [2001] All ER (D) 410
In this case it was held that pigeons roosting
under a bridge owned by the defendants
amounted to a public nuisance and the
defendants were required to ‘pigeon-proof’ the
bridge as a prevention measure.

Corby Group Litigation v Corby Carrying waste in uncovered vehicles.

District Council [2009] EWHC 1944
In this case, a higher number than average of
birth defects in the local population occurred in
an area where the defendant council had
permitted lorries to carry uncovered dangerous
and noxious waste across the city over a number
of years. Although the claims were mostly based
on general negligence, the court confirmed that
this also amounted to public nuisance.
Structure for public nuisance
Identify the parties (claimant name v defendant name) and tort (define).

Preliminaries: Who can sue? Who can be sued?

Elements:
1. Act or omission.
2. One-off event.
3. Class of Her Majesty’s Subjects.
4. Materially affects comfort and convenience (the loss).

Defences
Remedies
Summary

• Public nuisance is defined as "acts or omissions of the defendant that materially affect
the reasonable comfort and convenience of life of a class of Her Majesty’s subjects."
• An individual, local authority or the Attorney General can sue in the tort of public
nuisance.
• An individual can only sue if they have suffered special damage.
• The creator, owner or occupier can be sued in the tort of public nuisance.
• The elements to consider for public nuisance are: act or omission; one-off event; a
class of people must have been affected; and the loss must materially affect the
comfort and convenience of the class (or individual if they have suffered special
damage).
• The defences in public nuisance are the same as for private nuisance, except for
prescription.
• The remedies in public nuisance are the same as for private nuisance, but only
injunctions can be granted where the claimant is the Attorney General or local
authority.