From Advocatespedia, The Law Encyclopedia
Public nuisance is traditionally a criminal offence, defined as an unlawful act or omission which endangers or interferes with the lives, comfort, property or common rights of the general public. Though a criminal offence, a public nuisance can also give rise to a civil claim for damages.A public nuisance is conduct, behaviour, (or lack thereof), where injury, loss or damage is suffered by the local community as a result. Court proceedings for public nuisances are generally instigated by local authorities through the Magistrates’ Court or the Crown Court. On conviction, the defendant can be ordered to pay a fine and/or receive a prison sentence.Many types of commercial operations are at risk of committing a public nuisance, but identifying the public affected is not always straightforward. An injunction was ultimately granted to stop the quarry from causing a public nuisance. Among other things, the court held that the public means a class of Her Majesty’s subjects. Not every member of the class need be affected by the nuisance so long as a representative cross-section is. Additionally, if the nuisance is so widespread that the community as a whole must take action, as it would be unreasonable for a single individual to do so, then the nuisance is public. Consequently, the public means a considerable number of persons or a section of the public.It is not necessary for the defendant to have knowledge of the nuisance. It is sufficient to show that they were negligent, ie. they ought to have known that a nuisance would occur. To be liable for public nuisance, the defendant must have interfered with public property, or with a right common to the public. Examples of public nuisance include pollution of navigable waterways, interfering with the use of public parks and the creation of public health hazards. Public nuisance can be the result of negligence or intentional activity. Courts will also scrutinize factors like the kind of neighbourhood, the nature of the harm and the proximity to those who are injured.
1. Public authorities who are responsible for protecting the rights of the public. These include state and federal agencies such as parks departments or environmental protection agencies; and
2. Those individuals who suffer a particularized harm from the nuisance. This means a harm different in kind than that suffered by the public at large.
There are several defences available to those accused of creating a nuisance. One important defense is called ‘coming to the nuisance’. It applies when the harmful activity was operating before the plaintiffs acquired the property impacted by the nuisance. If the owners were aware of the nuisance-creating activity at the time they purchased the property, the defendant may invoke the defence of ‘coming to the nuisance’. This defense effectively argues that the plaintiffs knew what they were getting themselves into and assumed the risk of harm. While in the past, ‘coming to the nuisance’ was considered an absolute defense, today it is a factor that the courts will consider in determining whether the plaintiffs may recover for nuisance.A similar defense is assumption of the risk. Assumption of the risk can be claimed when the defendant proves that the plaintiff knew of the defendant’s use of the property and decided to operate or live near the nuisance anyway. The plaintiff in a nuisance case can recover damages for harms suffered. The creator of the nuisance will be liable for compensatory damages, covering the value lost due to the nuisance and any reduction in property value. In addition, if the nuisance is an ongoing activity, the court may issue an injunction ordering the harmful activity to cease.Just as courts may consider social utility when determining liability, courts may consider social utility when determining the appropriate remedy. Even if the activity in question has been ruled to be a nuisance, the courts may permit it to continue if the utility of the activity outweighs the harm to the plaintiff. In such cases, a court will not issue an injunction, but will instead order the creator of the nuisance to make ongoing payments to the plaintiff.Effectively, the law forces the plaintiff to bear the consequences of a socially useful enterprises, but requires that the plaintiff be compensated for the harms. Nuisance is a complex area of tort law, involving questions of law, society, and economics. It potentially covers any conduct which has a significant, detrimental impact on the use of property, so the range of nuisance cases can be very broad. Courts have taken different approaches to questions of nuisance, so the legal analysis will vary depending on which jurisdiction the case is brought.A public nuisance is an unreasonable interference with the right of the general public to enjoy public property, such as public parks, beaches, and waterways. Conditions that endanger the health, safety, peace, or comfort of the general public are public nuisances. Thus, pollution of a public reservoir would be an example of a public nuisance.The Constitution bars individuals from suing for generalized grievances that are common to all members of the general public. Because public nuisances by definition interfere with the rights of the public at large, the only individuals with standing to sue for public nuisance are government officials and individuals who have experienced special harm above and beyond what the public at large has experienced. Public nuisances are often classified as criminal offenses. Public nuisances are typically remedied when a public official, such as a city attorney, brings a claim for criminal or civil damages against the perpetrator. The city may also be able to obtain an injunction to halt the offending activity.
1. Shahbaz Khan And Ors. vs UmraoPuri And Ors.(1908) ILR 30 All 181
2. Janki Prasad And Ors. vs Karamat Husain And Ors.AIR 1931 All 674, 137 Ind Cas 578
3. AlimahomedSalemahomed vs Municipal Commissioner Of Bombay(1925) 27 BOMLR 581
4. Emperor vs Bharosa Pathak And Ors.(1912) ILR 34 All 345
5. Bhuban Ram And Ors. vs BibhutiBhusan Biswas47 Ind Cas 287
6. The Advocate-General Of Bombay vs Haji Ismail Hasham(1910) 12 BOMLR 274
7. Surendra Kumar Basu vs District Board And Anr.AIR 1942 Cal 360