Nuisance (from archaic nocence, through Fr. noisance, nuisance, from Lat. nocere, "to hurt") is a common lawtort. It means something which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "common") or private. A public nuisance was defined by English scholar Sir James Fitzjames Stephen as,
"an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects".[1]
Private nuisance is the interference with the right of specific people. Nuisance is one of the oldest causes of action known to the common law, with cases framed in nuisance going back almost to the beginning of recorded case law. Nuisance signifies that the "right of quiet enjoyment" is being disrupted to such a degree that a tort is being committed .
Under the common law, persons in possession of real property (land owners, lease holders etc.) are entitled to the quiet enjoyment of their lands. However this doesn't include visitors or those who aren't considered to have an interest in the land. If a neighbour interferes with that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance.
Legally, the term nuisance is traditionally used in three ways:
to describe an activity or condition that is harmful or annoying to others (e.g., indecent conduct, a rubbish heap or a smoking chimney)
to describe the harm caused by the before-mentioned activity or condition (e.g., loud noises or objectionable odors)
to describe a legal liability that arises from the combination of the two.[2] However, the "interference" was not the result of a neighbor stealing land or trespassing on the land. Instead, it arose from activities taking place on another person's land that affected the enjoyment of that land.[3]
The law of nuisance was created to stop such bothersome activities or conduct when they unreasonably interfered either with the rights of other private landowners (i.e., private nuisance) or with the rights of the general public (i.e., public nuisance)
A public nuisance is an unreasonable interference with the public's right to property. It includes conduct that interferes with public health, safety, peace or convenience. The unreasonableness may be evidenced by statute, or by the nature of the act, including how long, and how bad, the effects of the activity may be.[4]
Private nuisance arose out of the action on the case and protects a person’s right to the use and enjoyment of their land.[5] It doesn't include trespass.[6]
To be a nuisance, the level of interference must rise above the merely aesthetic. For example: if your neighbour paints their house purple, it may offend you; however, it doesn't rise to the level of nuisance. In most cases, normal uses of a property that can constitute quiet enjoyment cannot be restrained in nuisance either. For example, the sound of a crying baby may be annoying, but it is an expected part of quiet enjoyment of property and does not constitute a nuisance.[citation needed]Nuisance distinguishes between cases where the conduct alleged to be a nuisance has caused material injury to property and the cases where it has caused “sensible personal discomfort”.[7]
Any affected property owner has standing to sue for a private nuisance. If a nuisance is widespread enough, but yet has a public purpose, it is often treated at law as a public nuisance. Owners of interests in real property (whether owners, lessors, or holders of an easement or other interest) have standing only to bring private nuisance suits. According to Oldham v Lawson[8] (where held that the husband has a mere licence and had no title to sue whereas his wife as owner did have title to sue) and some later cases, exclusive possession is necessary to establish a private nuisance case. However, one situation related to transform a private nuisance against land to one against person, this case is no longer considered to be authoritative.[9]
History and legal development
In the late 19th and early 20th centuries, the law of nuisance became difficult to administer[citation needed], as competing property uses often posed a nuisance to each other, and the cost of litigation to settle the issue grew prohibitive. As such, most jurisdictions now have a system of land use planning (e.g. zoning) that describes what activities are acceptable in a given location. Zoning generally overrules nuisance. For example: if a factory is operating in an industrial zone, neighbours in the neighbouring residential zone can't make a claim in nuisance. Jurisdictions without zoning laws essentially leave land use to be determined by the laws concerning nuisance.
Similarly, modern environmental laws are an adaptation of the doctrine of nuisance to modern complex societies, in that a person's use of his property may harmfully affect another's property, or person, far from the nuisance activity, and from causes not easily integrated into historic understandings of nuisance law.
Remedies
Under the common law, the only remedy for a nuisance was the payment of damages. However, with the development of the courts of equity, the remedy of an injunction became available to prevent a defendant from repeating the activity that caused the nuisance, and specifying punishment for contempt if the defendant is in breach of such an injunction.
The law and economics movement has been involved in analyzing the most efficient choice of remedies given the circumstances of the nuisance. In Boomer v. Atlantic Cement Co. a cement plant interfered with a number of neighbors, yet the cost of complying with a full injunction would have been far more than a fair value of the cost to the plaintiffs of continuation. The New York court allowed the cement plant owner to 'purchase' the injunction for a specified amount—the permanent damages. In theory, the permanent damage amount should be the net present value of all future damages suffered by the plaintiff.
Inspector of Nuisances
An Inspector of Nuisances was the title of an office in several English-speaking jurisdictions. In many jurisdictions this term is now archaic, the position and/or term having been replaced by others. In medieval England it was an office of the Courts Leet and later it was also a parochial office concerned with local action against a wide range of 'nuisances' under the common law: obstructions of the highway, polluted wells, adulterated food, smoke, noise, smelly accumulations, eavesdropping, peeping toms, lewd behaviour, and many others. In the United Kingdom from the mid- 19th century this office became associated with solving public health and sanitation problems, with other types of nuisances being dealt with by the local constables.
The first Inspector of Nuisances appointed by a UK local authority Health Committee was Thomas Fresh in Liverpool in 1844.[10] Liverpool later promoted a private Act, the Liverpool Sanatory Act 1846, that created a statutory post of Inspector of Nuisances.[10] This became the precedent for later local and national legislation. In local authorities that had established a Board of Health under the Public Health Act 1848 (11 & 12 Vict. c. 63), or under local acts implementing the Towns Improvement Clauses Act 1847, the title was 'Inspector of Nuisances'. The Nuisances Removal and Diseases Prevention Act 1855 and the Metropolis Management Act 1855 (via section 134) mandated such an office but with the title of 'Sanitary Inspector'. So in some places the title was 'Sanitary Inspector' and in others 'Inspector of Nuisances'. Eventually the title was standardized across all UK local authorities as 'Sanitary Inspector'. An act of Parliament in 1956 changed the title to 'Public Health Inspector'. Similar offices were established across the British Commonwealth and Empire.
The nearest modern equivalent of this position in the UK is the environmental health officer. This title being adopted by local authorities on the recommendation of Central Government after the Local Government Act 1972. Today, registered UK environmental health officers working in non-enforcement roles (e.g. in the private sector) may prefer to use the generic term 'environmental health practitioner'.
In New South Wales Australia, the NSW Public Health Act 1896 gave the NSW Board of Health power to establish 'standards of strength and purity for articles of general consumption', to appoint analysts, and 'to cause to be made such enquiries as it thinks fit in relation to any matters concerning the public health'. Inspectors under the new Act were known as Inspectors of Nuisances, but were later renamed 'sanitary inspectors'.[11]
In the United States, a modern example of an officer with the title 'Inspector of Nuisances' but not the public health role is found in Section 3767[7] of the Ohio Revised Code which defines such a position to investigate nuisances, where this term broadly covers establishments in which lewdness and alcohol are found. Whereas in the United States the environmental health officer role is undertaken by local authority officers with the titles 'Registered Environmental Health Specialist' or 'Registered Sanitarian' depending on the jurisdiction.
The boundaries of the tort are potentially unclear, due to the public/private nuisance divide, and existence of the rule in Rylands v Fletcher. Writers such as John Murphy at Lancaster University have popularised the idea that Rylands forms a separate, though related, tort. This is still an issue for debate, and is rejected by others (the primary distinction in Rylands concerns 'escapes onto land', and so it may be argued that the only difference is the nature of the nuisance, not the nature of the civil wrong.)
Under English law, unlike US law, it is no defence that the claimant "came to the nuisance": the 1879 case of Sturges v Bridgman is still good law, and a new owner can bring a claim in nuisance for the existing activities of a neighbour. In February 2014 the UK Supreme Court ruling in the case of Coventry v Lawrence[12] prompted the launch of a campaign[13] to have the "coming to a nuisance" law overturned. Campaigners hold that established lawful activity continuing with planning permission and local residents' support should be accepted as part of the character of the area by any new residents coming to the locality.
There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance.' It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition.
Many states have limited instances where a claim of nuisance may be brought. Such limitation often became necessary as the sensibilities of urban dwellers were offended by smells of agricultural waste when they moved to rural locations. For example: many states and provinces have "right to farm" provisions, which allow any agricultural use of land zoned or historically used for agriculture.
There are two classes of nuisance under the American law: a nuisance in fact, or "nuisance per accidens", and a nuisance per se. The classification determines whether the claim goes to the jury, or gets decided by the judge. An alleged nuisance in fact is an issue of fact to be determined by the jury, who will decide whether the thing (or act) in question created a nuisance, by examining its location and surroundings, the manner of its conduct, and other circumstances.[14] A determination that something is a nuisance in fact also requires proof of the act and its consequences.[14]
By contrast, a nuisance per se is "an activity, or an act, structure, instrument, or occupation which is a nuisance at all times and under any circumstances, regardless of location or surroundings."[15] Liability for a nuisance per se is absolute, and injury to the public is presumed; if its existence is alleged and established by proof, it is also established as a matter of law.[16] Therefore, a judge would decide a nuisance per se, while a jury would decide a nuisance in fact.
Most nuisance claims allege a nuisance in fact, for the simple reason that not many actions or structures have been deemed to be nuisances per se. In general, if an act, or use of property, is lawful, or authorized by competent authority, it cannot be a nuisance per se.[17] Rather, the act in question must either be declared by public statute, or by case law, to be a nuisance per se.[18] There are few state or federal statutes or case law declaring actions or structures to be a nuisance in and of themselves. Few activities or structures, in and of themselves and under any and all circumstances, are a nuisance; which is how courts determine whether or not an action or structure is a nuisance per se.[19]
Over the last 1000 years, public nuisance has been used by governmental authorities to stop conduct that was considered quasi-criminal because, although not strictly illegal, it was deemed unreasonable in view of its likelihood to injure someone in the general public. Donald Gifford[20] argues that civil liability has always been an "incidental aspect of public nuisance".[21] Traditionally, actionable conduct involved the blocking of a public roadway, the dumping of sewage into a public river or the blasting of a stereo in a public park.[22] To stop this type of conduct, governments sought injunctions either enjoining the activity that caused the nuisance or requiring the responsible party to abate the nuisance.
In recent decades, however, governments blurred the lines between public and private nuisance causes of action. William Prosser noted this in 1966 and warned courts and scholars against confusing and merging the substantive laws of the two torts. In some states, his warning went unheeded and some courts and legislatures have created vague and ill-defined definitions to describe what constitutes a public nuisance. For example, Florida's Supreme Court has held that a public nuisance is any thing that causes "annoyance to the community or harm to public health."[23]
A contemporary example of a nuisance law in the United States is the Article 40 Bylaw of Amherst, Massachusetts known as the Nuisance House Bylaw. The law is voted on by members of the town at town meetings. The stated purpose of such a law is "In accordance with the Town of Amherst’s Home Rule Authority, and to protect the health, safety, and welfare of the inhabitants of the Town, this bylaw shall permit the Town to impose liability on owners and other responsible persons for the nuisances and harm caused by loud and unruly gatherings on private property and shall discourage the consumption of alcoholic beverages by underage persons at such gatherings."[24]
In practice, the law works so that if one member of the neighborhood feels that there is a neighbor's noise level is annoying or excessively loud, that neighbor is instructed to inform the town police so that they can respond to the location of the noise. "The responding officer has some discretion in how to deal with the noise complaint.... When determining the appropriate response, the officer may take many factors into consideration, such as the severity of the noise, the time of day, whether the residents have been warned before, the cooperation of the residents to address the problem."[25][26]
The term is also used less formally in the United States to describe the non-meritorious nature of frivolous litigation. A lawsuit may be described as a "nuisance suit", and a settlement a "nuisance settlement", if the defendant pays money to the plaintiff to drop the case primarily to spare the cost of litigation, rather than because the suit would have a significant likelihood of winning.
Environmental nuisance
In the field of environmental science, there are a number of phenomena which are considered nuisances under the law, including most notably noise, water and light pollution. Moreover there are some issues that are not necessarily legal matters that are termed environmental nuisance; for example, an excess population of insects or other vectors may be termed a "nuisance population" in an ecological sense.[27]
In terms of environmental nuisance litigations, it is hard for someone to be successful in this area due to the standing requirements of private and public nuisance.[28] It is the Court's opinion that legislation should regulate this area.[29]
Particularly, in Australia, all the jurisdictions have such kind of legislation.[30][31]
From Britannica 1911
A common nuisance is punishable as a misdemeanour at common law, where no special provision is made by statute. In modern times, many of the old common law nuisances have been the subject of legislation. It's no defence for a master or employer that a nuisance is caused by the acts of his servants, if such acts are within the scope of their employment, even though such acts are done without his knowledge, and contrary to his orders. Nor is it a defence that the nuisance has been in existence for a great length of time, for no lapse of time will legitimate a public nuisance.[32]
A private nuisance is an act, or omission, which causes inconvenience or damage to a private person, and is left to be redressed by action. There must be some sensible diminution of these rights affecting the value or convenience of the property. "The real question in all the cases is the question of fact, whether the annoyance is such as materially to interfere with the ordinary comfort of human existence" (Lord Romilly in Crump v. Lambert (1867) L.R. 3 Eq. 409). A private nuisance, differing in this respect from a public nuisance, may be legalized by uninterrupted use for twenty years. It used to be thought that, if a man knew there was a nuisance and went and lived near it, he couldn't recover, because, it was said, it is he that goes to the nuisance, and not the nuisance to him. But this has long ceased to be law, as regards both the remedy by damages, and the remedy by injunction.[32]
The remedy for a public nuisance is by information, indictment, summary procedure or abatement. An information lies in cases of great public importance, such as the obstruction of a navigable river by piers. In some matters, the law allows the party to take the remedy into his own hands, and to "abate" the nuisance. Thus; if a gate be placed across a highway, any person lawfully using the highway may remove the obstruction, provided that no breach of the peace is caused thereby. The remedy for a private nuisance is by injunction, action for damages or abatement. An action lies in every case for a private nuisance; it also lies where the nuisance is public, provided that the plaintiff can prove that he has sustained some special injury. In such a case, the civil is in addition to the criminal remedy. In abating a private nuisance, care must be taken not to do more damage than is necessary for the removal of the nuisance.[32]
In Scotland, there's no recognized distinction between public and private nuisances. The law as to what constitutes a nuisance is substantially the same as in England. A list of statutory nuisances will be found in the Public Health (Scotland) Act 1867 (30 & 31 Vict. c. 101), and amending acts. The remedy for nuisance is by interdict, or action.[32]
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land.
In English criminal law, public nuisance is a act, condition or thing that is illegal because it interferes with the rights of the general public.
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.
Rylands v Fletcher (1868) LR 3 HL 330 is a leading decision by the House of Lords which established a new area of English tort law. It established the rule that one's non-natural use of their land, which leads to another's land being damaged as a result of dangerous things emanating from the land, is strictly liable.
Trespass to land is a common law tort or crime that is committed when an individual or the object of an individual intentionally enters the land of another without a lawful excuse. Trespass to land is actionable per se. Thus, the party whose land is entered upon may sue even if no actual harm is done. In some jurisdictions, this rule may also apply to entry upon public land having restricted access. A court may order payment of damages or an injunction to remedy the tort.
In tort common law, the defense of necessity gives the state or an individual a privilege to take or use the property of another. A defendant typically invokes the defense of necessity only against the intentional torts of trespass to chattels, trespass to land, or conversion. The Latin phrase from common law is necessitas inducit privilegium quod jura privata. A court will grant this privilege to a trespasser when the risk of harm to an individual or society is apparently and reasonably greater than the harm to the property. Unlike the privilege of self-defense, those who are harmed by individuals invoking the necessity privilege are usually free from any wrongdoing. Generally, an individual invoking this privilege is obligated to pay any actual damages caused in the use of the property but not punitive or nominal damages.
Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian tort law originally derives from that of England and Wales but has developed distinctly since Canadian Confederation in 1867 and has been influenced by jurisprudence in other common law jurisdictions. Meanwhile, while private law as a whole in Québec was originally derived from that which existed in France at the time of Québec's annexation into the British Empire, it was overhauled and codified first in the Civil Code of Lower Canada and later in the current Civil Code of Quebec, which codifies most elements of tort law as part of its provisions on the broader law of obligations. As most aspects of tort law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, tort law varies even between the country's common law provinces and territories.
Noise regulation includes statutes or guidelines relating to sound transmission established by national, state or provincial and municipal levels of government. After the watershed passage of the United States Noise Control Act of 1972, other local and state governments passed further regulations.
The Environmental Protection Act 1990 is an Act of the Parliament of the United Kingdom that as of 2008 defines, within England and Wales and Scotland, the fundamental structure and authority for waste management and control of emissions into the environment.
Boomer v. Atlantic Cement Co., was a New York court case in which New York's highest court considered whether permanent damages were an appropriate remedy in lieu of a permanent injunction. The case was one of the first and most influential instances of a court applying permanent damages. It is widely referenced in law and economics research and case law.
Nuisance abatement is a growing area within policing and code enforcement. The term refers to using building codes, fire codes, zoning, etc. in order to improve the quality of life and resolve life safety issues within neighborhoods. Nuisance abatement programs are most often a component of problem oriented or community policing programs. In most Canadian jurisdictions, bylaw enforcement officers handle nuisance abatement.
The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:
Conversion is an intentional tort consisting of "taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession". In England and Wales, it is a tort of strict liability. Its equivalents in criminal law include larceny or theft and criminal conversion. In those jurisdictions that recognise it, criminal conversion is a lesser crime than theft/larceny.
Nuisance in English law is an area of tort law broadly divided into two torts; private nuisance, where the actions of the defendant are "causing a substantial and unreasonable interference with a [claimant]'s land or his/her use or enjoyment of that land", and public nuisance, where the defendant's actions "materially affects the reasonable comfort and convenience of life of a class of His Majesty's subjects"; public nuisance is also a crime. Both torts have been present from the time of Henry III, being affected by a variety of philosophical shifts through the years which saw them become first looser and then far more stringent and less protecting of an individual's rights. Each tort requires the claimant to prove that the defendant's actions caused interference, which was unreasonable, and in some situations the intention of the defendant may also be taken into account. A significant difference is that private nuisance does not allow a claimant to claim for any personal injury suffered, while public nuisance does.
Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343 is a case in English tort law covering nuisance. The council granted planning permission to Medway (Chatham) Dock Co Ltd to redevelop the Chatham Dockyard as a commercial port, noting that this would have some impact on local residents but authorising it because the economic benefit would far outweigh any potential noise problems. The port's activity called for a large number of heavy duty vehicles moving around the clock, and by 1988 there were almost 750 lorries using the port per day. The Borough Council brought an action against the dock company in public nuisance on behalf of its residents, and the case was heard by Buckley J in the High Court of Justice. Buckley, while rejecting the dock company's arguments that only illegal acts could be public nuisances and that the granting of planning permission authorised the nuisance, held that the dock's activities were not a public nuisance. This was because the commercial dock had significantly changed the character of the area, changing the definition of what was and was not unreasonable behaviour.
American Electric Power Company v. Connecticut, 564 U.S. 410 (2011), was a United States Supreme Court case in which the Court, in an 8–0 decision, held that corporations cannot be sued for greenhouse gas emissions (GHGs) under federal common law, primarily because the Clean Air Act (CAA) delegates the management of carbon dioxide and other GHG emissions to the Environmental Protection Agency (EPA). Brought to court in July 2004 in the Southern District of New York, this was the first global warming case based on a public nuisance claim.
Misuse of private information is a new common law tort that English courts recognised in Campbell v MGN Ltd. Arising as a branch of the law relating to breach of confidence, it has been reinforced by Article 8 of the European Convention on Human Rights, supplemented by s. 6 of the Human Rights Act 1998, which obliges public institutions not to act inconsistently with Convention rights.
Tort law in India is primarily governed by judicial precedent as in other common law jurisdictions, supplemented by statutes governing damages, civil procedure, and codifying common law torts. As in other common law jurisdictions, a tort is breach of a non-contractual duty which has caused damage to the plaintiff giving rise to a civil cause of action and for which remedy is available. If a remedy does not exist, a tort has not been committed since the rationale of tort law is to provide a remedy to the person who has been wronged.
Marcic v Thames Water plc [2003] UKHL 66 is a UK enterprise law and English tort law case, concerning water in the UK.
References
↑ Sir J. F. Stephen, Digest of the Criminal Law, p.120
↑ Restatement (Second) of Torts § 821A cmt. b (1979). Originally developed as a private tort tied to the land, a nuisance action was generally brought when a person interfered with another's "use or enjoyment of land."
1 2 Parkinson, Norman (2013). "Thomas Fresh (1803-1861), Inspector of Nuisances, Liverpool's first Public Health Officer". Journal of Medical Biography. 21 (4): 238–249. doi:10.1177/0967772013479277. PMID24585830. S2CID46181945.
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