Rt f rivt Nuisn, th rim f ubli Nuisn nd Sttutry Nuisns in nglnd nd Wls - Essay Example

rt оf Рrivаtе Nuisаnсе, thе Сrimе оf Рubliс Nuisаnсе аnd Stаtutоry Nuisаnсеs in Еnglаnd аnd Wаlеs Introduction From the legal perspective, nuisance is an act that interferes with the use, safety, or comfort of property, in the absence of legal justification. A private nuisance affects a single individual or a few individuals, whilst a public nuisance affects several people. Instances of private nuisance and public nuisance are the erection of a wall that deprives a neighbour’s house of illumination and conducting a disorderly house, respectively. On occasion, a person subjected to a private nuisance may abate it[Col152]. In view of the fact that individuals have dissimilar sensitivity to noise, it is indispensable for the investigator to establish that the victim is not unduly sensitive. It is also essential to establish that the quality of life and personal comfort of the victim have been compromised. Moreover, the majority of the instances brought to the attention of a local authority are persistent issues, wherein the offending conduct remains in continuance. As such, there is not decibel limit that upon being exceed renders noise a statutory nuisance. Sound level meters merely enable investigating officers to assist them in evaluating nuisance[Noi12]. Any proper assessment of nuisance requires the investigating office to arrive at a conclusion on the basis of several factors, such as, the loudness and duration of the noise and the level of its intrusiveness. In addition, damages can be claimed by the victims of a private nuisance or by those who have been specifically harmed by a public nuisance. As such, the court issues injunctions against ongoing nuisances. Public nuisances can be prosecuted as crimes, as they prove to be harmful to the community. It is essential to realise that nuisance constitutes a flexible legal category. For instance, in the past, it had been deemed a nuisance to operate a blast furnace; however, these have been regarded as legal and essential at present[Col152]. The 19th century was witness to the development, in tandem, of two environmental protections systems. The first was that of common law remedies; including private nuisance; and second, negligence and a sequence of statutory controls, such as, the Alkali Act 1863 and the Public Health Act 1848. The progressive development of these systems resulted in a certain amount of overlapping. However, the development of statutory controls had outpaced the development of the common law[Wes12]. Nevertheless, the common law has not become irrelevant to contemporary environmental protection. The majority of the statutes have been formulated with the intention of coexisting with the common law, and there is no design to supplant it. At the same time, the common law is not required to follow in the footsteps of the statutory innovations[Wes12]. At this juncture, it is to be realised that the protection provided by the common law remedies differ from those provided by the statute. For instance, in Transco Plc v Stockport Metropolitan Borough Council, Hobhouse LJ declared that this area of regulation was not exhaustive and did not provide the affected third party with an adequate voice. In addition, the decision of the government could accord a higher priority to a national or military necessity that it regarded as being superior to individual interests. Consequently, in the usual course, it would not deal with civil liability for damage to property. Moreover, it would not provide the third party with sufficient control and knowledge to assess and protect himself for insurance cost and consequent risk. As such, the rulings of the Court of Appeal in Coventry (t/a RDC Promotions) v Lawrence and Barr v Biffa Waste Services Ltd, retain the distinction between common law and statutory law [Wes12]. In addition, these decisions tend to promote the continued utility of private nuisance as a cause of action in the contemporary era. Nevertheless, activities that lead to a nuisance are frequently subjected to statutory controls. The association between these controls and the capacity of the individuals affected by such nuisance to bring a claim has been examined by the courts. In Coventry (t/a RDC Promotions) v Lawrence, the claimant had successfully argued that a racing circuit authorised by several planning permissions was irrelevant to a claim in nuisance. The Court held that the activities at the racing circuit could be conducted in a manner that would not cause a nuisance to the claimants [Wes12]. Accordingly, an injunction was granted by the Court of Appeal. Nuisance and Remedies Certain important issues pertaining to nuisance by an occupier of property, and the remedies provided to a claimant in instances of unlawful violation of property rights, have been reflected upon by the Supreme Court. For example, in Coventry and others v Lawrence and another, a complaint had been lodged by the owner of residential property, regarding the noise pollution caused by motorsport events. It was held by the Supreme Court that such activities constituted a nuisance[Wat15]. Thereafter, the Court examined its discretionary power to award damages instead of an injunction. Neuberger LJ opined that the courts should display greater flexibility, whilst deciding the suitability of damages as a remedy. Specifically, the interests of the public had to be given due weightage. Moreover, the presence of planning permission for the relevant activity could support an award of damages. Thus, it has become somewhat simpler for a defendant to persuade the court that damages constituted an adequate remedy. This holds good, despite a claimant being prima facie eligible for injunctive relief in instances of unlawful interference with his property rights[Wat15]. Public Nuisance A public nuisance transpires from an act that jeopardises the comfort, life, property, morals or life of the public, or hinders the public in the enjoyment or exercise of rights that are provided to every individual. In addition to being actionable in tort, a public nuisance can constitute a criminal offence. On the other hand, a private nuisance is, in general, perpetrated by an individual carrying out some act on his own land. That individual will be legally entitled to carry out that act, but it becomes a nuisance when it has an adverse impact upon a neighbour’s property. A private nuisance in actionable in tort[Tho151]. Due to being intricate, ancient, and part of the common law, the law of nuisance tends to be ambiguous. Moreover, the offence of public nuisance is established whenever the tort of public nuisance exists. In a case of 1301, which was heard in London, the court ruled that the nuisance resulting from an individual’s cesspit to his neighbour could not be condoned on the grounds that it had been in that location for a very long period[Poi11]. Despite its presence from hundreds of years, public nuisance has failed to become a secure feature of the common law jurisdictions. In fact, several commentators have stated that public nuisance constituted a notion that did not have relevance to the contemporary situation. This was on the basis of its astonishing encompass and absence of precision, thereby making it unsuitable for the requirement of the modern legal system[Poi11]. Several of the behaviours and wrongs that had traditionally invited punishment by a prosecution for public nuisance, or had led to the issuance of an injunction against the tortfeasor have become the subject of specific statutory provisions. Some of these being public order and criminal matters; and statutes controlling immoral activities, terrorists, drug-dealers, and other undesirable activities. It has been strongly contended that in the presence of a relevant and more precisely defined offence under the statute, it would be defeating the purpose to resort to a common law offence charge[Poi11]. Thus, in Chief Constable of Leicestershire v M, Hoffmann J rejected an application for an injunction regarding a mortgage fraud. This rejection was based upon the perception that in the presence of appropriate statutory provisions it was undesirable to engage in parallel creativity by undertaking an extension of the general common law principles[Poi11]. As such, preferring a common law charge when there was a relevant statutory charge available could be tantamount to a breach of the human rights provided under the European Convention on Human Rights. Criticism from academic commentators, notwithstanding, prosecutors find public nuisance a useful and convenient charge for offences of a specific nature. This is due to the fact that the maximum punishment for a related statutory offence tends to be low, or the offending conduct does not match the statutory offence to a major extent[Poi11]. This trend has continued, despite the misgivings expressed by the Law Commission regarding the human rights concerns involved. As such, the Law Commission has been consistently clamouring for greater clarity in the description of criminal offences. In addition, this august body has been frequently pointing out that the task of creating new offences has been vested solely with Parliament[Poi11]. Thus, it is beyond the brief of the judiciary to extend the ambit of the common law offence, so as to prosecute and punish emerging forms of misconduct. Private Nuisance In addition to the degree of the nuisance, other factors have to be taken into consideration, whilst determining whether the nuisance in question is of the public or private variety, or both. In general, it is necessary to establish that a public nuisance has transpired. A common element could be present in a situation where there are a sufficiently large number of individual private nuisances and where the offence produces a concurrent impact upon the individual victims[Poi11]. For instance, in A-G v PYA Quarries Ltd, Romer LJ stated that certain forms of public nuisances could be established without requiring the deposition of several individual complainants as witnesses. All the same, a public nuisance, in general, is demonstrated by the cumulative effect that it has upon the people coming under its domain of influence. Thus, a legitimate and common procedure for establishing public nuisance is by demonstrating an adequately large set of private nuisances[Poi11]. The term ‘sufficient number of individuals affected for establishing a public nuisance’ has not be provided with by a precise decision by the judiciary. For instance, in the aforementioned A-G v PYA Quarries Ltd, the Court of Appeal merely referred to a class of Her Majesty’s subjects without stipulating the number of individuals required to be impacted by the quarrying activity, in order to classify the offending behaviour as a public offence[Poi11]. In fact, Romer LJ, in his decision, had declared that it was unnecessary to demonstrate that every individual in the locality, where the nuisance had taken place, had been affected. It was sufficient to establish that a representative cross-section of that class had been affected by the offending behaviour. He further stated that this was sufficient for the grant of a public nuisance injunction. In Jan De Nul (UK) Ltd v Royale Belge SA, the court held that a nuisance affecting the public at large could actually affect a small number of individuals[Poi11]. However, this circumstance would not hinder it from being classified as an instance of public nuisance, as long as there was a violation of a public right. Moreover, litigation related to flooding has emerged as an intricate and constantly evolving area of the law of nuisance. In Latimer v Carmarthenshire County Council (2007, unreported), a claim was brought against a local authority by a home-owner. This claim was with respect to the flooding of his house from a culvert maintained improperly by the local authority. In general, the party that incorporates a culvert on a watercourse has an absolute duty to ensure that water overflows do not take place. As the local authority had been primarily responsible for the overflow of water in the culvert that had resulted in the flooding, it was deemed to possess an absolute duty of care to ensure that the culvert was adequately improved or maintained, so as to convey the floodwaters away from the neighbouring premises[Sal10]. Significantly, in Bybrook Barn Centre Ltd & ors v Kent County Council, the Court of Appeal held that the local authority had a tangible duty to improve a culvert under its control. As such, no absolute duty was assigned to the local authority. This culvert had been inherited by the local authority, and circumstances beyond its control had led to the overflow of water in it[Sal10]. Statutory Nuisance The Environmental Protection Act 1990 describes statutory nuisance as unlawful interference with an individual’s enjoyment or use of property that belongs to that individual. Statutory nuisance, per se, constitutes a criminal offence. It can include; artificial illumination; dust, steam or odours; improperly maintained animals or premises; deposits or accumulation of waste materials; noise; smoke; fumes or gases[Rea14]. In general, establishing statutory nuisance is not straightforward. Several factors have to be taken into account, whilst determining such nuisance, including; duration; frequency; material interference with the use of property or personal comfort; nature of the local environment; whether the behaviour is usual or unreasonable; sensitivity of the complainant, which brings into consideration the fact that undue sensitivity of the complainant due to age, health, personal preferences or occupation cannot be taken into account; and number of households affected by that activity or conduct[Rea14]. An activity is classified as an instance of statutory nuisance, only when it is or is likely to be a nuisance or prejudicial to health. The legislation defines a nuisance as unacceptable interference with the amenity or personal comfort of neighbours, or the proximate community. Therefore, a person who is exceptionally vulnerable cannot claim statutory nuisance with respect to an activity that would, in the normal course, have no effect upon the majority of the people. On the other hand, an activity that has a greater effect upon the vulnerable, in addition to the general public, would be liable for a claim against its perpetrator[Fri08]. The presence of an abatement notice that pertains to the activities undertaken at a business or trade premises, can constitute a defence, under certain circumstances, to demonstrate that the best practicable means had been adopted to circumvent or counteract the nuisance. Best practicable means entails concern for local circumstances, financial implications, and the extant state of technical knowledge[Fri08]. In addition, specific defences exist with respect to complaints regarding noise and nuisance related to construction sites and in areas with registered noise levels. As such, statutory nuisance transpires when an issue produces first, unreasonable and substantial interference with the enjoyment or use of a home or other premises. Second, injures health or has the likelihood of injuring health. It is incumbent upon councils to serve an abatement notice upon the individual responsible for causing statutory nuisance. In the event of this being impossible, such notice has to be served upon the occupier or owner of the premises. As a consequence, the person responsible could be required to cease the offending activity or restrict that activity to definite times, in order to preclude nuisance [Gov154]. This can include specific actions to mitigate the issue. In Barr v Biffa Waste Services, an action in nuisance had been brought by 152 households. This action was with regard to a bad odour emerging from a landfill site maintained by Biffa. It was contended by Biffa that it had a statutory defence in the legislation, as well as the terms of the permit granted to it by the Environmental Agency. Coulson J permitted a protracted discussion in this case and came to the following conclusion. This was based upon a finding that environmental legislation could be relevant to a private claim of nuisance. It was also founded upon the perception that planning permission could adversely impact the neighbourhood[Lee11].Thus, Coulson J held that there was no authority that addressed the crucial issue of principle involved. This being whether a landfill site operator, who had complied with the specific requirements of the relevant permit, and who had not been negligent, could be rendered liable in nuisance for the inescapable outcomes of those approved actions[Lee11]. All the same, the learned justice rejected the statutory defence. In his ruling Coulson J made a distinction between the situation of Biffa and that of Thames Water in Marcic v Thames Water Utilities [2003]. This differentiation was based on the fact that the defendants were not subject to any statutory duty, and that in the absence of non-compliance with licence conditions they could conduct themselves as any commercial operator. As Biffa’s activity could not be vindicated by the Planning Act 2008, he was held to be devoid of a defence of statutory authority[Lee11]. Although, the defendant’s claim was successful on some grounds, the higher court, namely the Court of Appeal, reversed this judgment. That Court ruled that there was no legal basis for the argument that the environmental legislation overruled the common law[Bat121]. Thus, the appeal succeeded, while the respondent’s cross appeal was rejected. Conclusion In one famous case it was opined that nuisance is not to be considered or examined by itself as an abstract issue. All the surrounding circumstances of the problem should be taken into consideration, while deciding nuisance cases. In addition, there are many limitations to raising a claim of nuisance. For example, public nuisance can be raised only by people who have experienced special damage. As such, with regard to grave environmental public nuisances, the common law incorporates several effective remedies, including injunctions, declarations, and damages for personal injuries. However, the latter are restricted to individuals who have undergone special damage. In addition, the possibility exists of prosecution for especially serious public nuisances. Upon establishing their negligence, individual employees and directors of companies can be punished with custodial sentences that can extend to life imprisonment. The law concerned with nuisance, per se, is ambiguous, restrictive and primarily relies upon common law principles which are inconsistent with statutory requirements. In this regard, the Law Commission has been raising an appeal to define criminal offences involving nuisance clearly, so that consistency can be established in nuisance law. It can be surmised that nuisance law in the UK is flexible, ambiguous and inconsistent with the requirements of the contemporary situation, since the major portion of the law is derived from common law principles and as no statutory provision has been made to supplant it. References Col152: , (Columbia Electronic Encyclopedia, 2015, p. 1), Noi12: , (Noise Nuisance, 2012), Wes12: , (Westway, 2012, p. 224), Wat15: , (Waterfield, 2015, p. 109), Tho151: , (Thomson Reuters , 2015), Poi11: , (Pointing, 2011, p. 26), Poi11: , (Pointing, 2011, p. 27), Poi11: , (Pointing, 2011, p. 31), Poi11: , (Pointing, 2011, p. 37), Sal10: , (Salmon, 2010), Rea14: , (Reading Borough Council, 2014), Fri08: , (Friends of the Earth, 2008), Gov154: , (Government of the United Kingdom, 2015), Lee11: , (Lee, 2011, p. 991), Bat121: , (Bates, 2012), Read More