To conclude, we’ve seen that private nuisance is one of the oldest torts, and it protects against ‘indirect’ interference with the claimant’s use and enjoyment of land, such as excessive noise and the emission of smells or noxious fumes. Public nuisance, despite the shared word, is quite different. It is a crime as well as a tort and concerns breaches of the general right of the public such as passing on highways, or to peaceful use of the environment.
Public nuisance is a smaller portion of the chapter and was dealt with first. In Attorney-General v PYA Quarries, public nuisance was defined as an act or omission ‘… which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects.’ Typically an action will be brought on behalf of the community in a ‘relator action’ or, more commonly, by the local authority under statute. Many claims which would have been brought in the past under the common law, are now brought under statutes such as the Environmental Protection act 1990.An individual may sue for damages personally if they have suffered particular damage above and beyond that of the public generally, as in Tate & Lyle Food and Distribution Ltd v GLC. Remedies will be damages and/or injunctions and, unlike private nuisance, it is possible to obtain compensation for personal injury.
Private nuisance is a tort which is strongly connected to interests in land, and this was confirmed by the House of Lords in Hunter v Canary Wharf that it is necessary to have a legal title to property in order to bring an action in private nuisance; that is, to be an owner, tenant or some types of licensee. The defendant in such an action will be the creator of the nuisance. In private nuisance cases the court must determine whether the defendant’s behaviour (usually a course of conduct rather than a one-off event) constitutes an unlawful, or unreasonable interference with the claimant’s use of their land. This means balancing the competing interests of the two parties. In private nuisance, the damage may be physical such as damage to property caused by vibrations, or what is known as ‘amenity damage’, that is: bad smells, noise or pollution of the air.
Relevant factors for the judge will be: possible abnormal sensitivity of the claimant; the nature of the locality; the time and duration of the interference; and the nature of the defendant’s conduct, such as malice. The existence of planning permission is no longer as significant as it once was, see Coventry v Lawrence. Strictly speaking, proof of fault (or intention) on the part of the defendant is not a requirement of the tort although these are often present, at least to the extent of foreknowledge of the impact of the behavior. The impact of the Human Rights Act 1998 must be taken into account in some actions, as in Dennis v Ministry of Defence. The defences to private nuisance are different from those to negligence and must be understood.
Be aware that actions in nuisance often overlap with those in negligence and trespass to land, so these must always be considered. There may also be an action in the tort in Rylands v Fletcher, which is discussed in the next chapter.