What is Public Nuisance?
At common law public nuisance is a crime for which the remedy is criminal proceedings. It is defined as an unlawful act or omission which endangers or interferes with the lives, comfort, property or common rights of the public. Probably the most well-known example of public nuisance is obstructing the highway, though everyday obstructions such as road repairs and scaffolding are lawful so long as they are reasonable and do not occur for an excessive time. Historically, public nuisance has embraced a wide number of activities, ranging from dumping sewage into a river to playing loud music on a stereo in a public park. In its early incarnation, offences had only a criminal nature. The law subsequently developed to allow private individuals to bring actions if they had suffered a peculiar nuisance that was different in kind to that suffered by the public at large. Public nuisance thus came to overlap with elements of tort law and property law.
Who are the ‘public’ in public nuisance?
Identifying the public affected by a public nuisance is not as simple as might initially be thought. Clearly, unlawful obstruction of the highway in Liverpool does not affect the public of Plymouth. But does it affect all, or only some, of the public of Liverpool? The modern definition is that rights common to all HM’s subjects must be affected, in other words, not necessarily all the public, but rather the rights which they enjoy as citizens. A good illustration is found in the Law Reports. A quarry produced noise, dirt and vibrations which affected the neighbourhood. The court had to decide if this was a private nuisance which only affected some residents, or a public nuisance affecting all HM’s subjects in the area. 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 HM’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.
Knowledge of the nuisance
It is not necessary for the perpetrator to have knowledge of the nuisance. It is sufficient enough to show that a defendant ought to have known that a nuisance would occur.
Developments in the law
Following a number of important cases and statutory developments the common law crime of public nuisance has all but disappeared, and been replaced by provisions in legislation such as the Criminal Justice and Public Order Act 1994 and the Protection from Harassment Act 1997. Prosecutions should now be brought under the relevant legislation, which is less vague than the common law and which more clearly outlines the various defences. Public nuisance at common law is still a crime, however, and has not been abolished. But in practice, charges of public nuisance should be brought under the relevant statute, where possible, and it seems there will be fewer and fewer instances in future where the common law will apply.
Special mention ought to be given to the Environmental Protection Act 1990. Under s80 of this Act a local authority officer who is satisfied that a nuisance exists can serve the perpetrator with an abatement notice, compelling them to stop the nuisance. Failure to comply with the notice is a criminal offence. Also of importance is the Noise and Statutory Nuisance Act 1993, as amended by the Clean Neighbourhoods and Environment Act 2005. The Act makes certain noise in the street, such as that from loudspeakers or car alarms, a statutory nuisance. The local authority can also charge the person responsible for any expenses the authority incurs when abating or preventing the nuisance. The procedures, however, are complicated, and many local authorities may be wary of attempting enforcement. There is also the Noise Act 1996 which imposes a duty on a local authority to follow up complaints of excessive noise coming from a house. A warning notice may be served if the noise exceeds permitted limits and occurs between 11.00pm and 7.30am. Failure to comply with the notice is an offence.