ASSESSING THE RELEVANCE OF PRIVATE AND PUBLIC NUISANCE IN ENVIRONMENTAL PROTECTION

ABSTRACT

There is no doubt that the environment is constantly abused through air, water, land and noise pollution. The private rights affected by these environmental ‘nuisances’ have necessitated the need to take action against the person causing the environmental problems. The common law actions relevant to environmental protection include the tort of nuisance, the rule in Rylands v Fletcher, trespass and negligence. The tort of nuisance is, however, the most popular ground of action for environmental harm. While public nuisance involves injury to the public at large, private nuisance protects private individuals from substantial interference with the use and enjoyment of land or property. Drawing from UK and Nigerian case law, this paper attempts to examine the characteristics and key elements of the tort of public and private nuisance, as well as the scope of their relevance with respect to environmental protection.

1.0. INTRODUCTION

While most remedies to environmental issues are derived from statutory provisions,^[1] there are certain common law principles relevant to the protection of private rights in an environmental context.^[2] The emergence of nuisance law dates back to the 19^th century,^[3] where it was used as a common law tool to address certain environmental interests affecting the private rights of individuals. The development of the law of nuisance has been viewed as an “early form of land use planning”,^[4] since it regulates what activities are permissible in particular areas. Thus, by preventing the occurrence of disruptive activities in certain areas, nuisance actions have become a veritable tool for solving environmental problems that touch on private rights.^[5]

The purpose of this paper is to assess the role of nuisance as a common law tool by which individuals may secure civil remedies for environmental harms which infringe on their private rights. Following the introduction, the rest of this paper has the following structure. The concept of nuisance, the nature and key elements of the types of nuisance is explored in Section Two. The basis for civil liability under private and public nuisance for environmental harms is addressed in Section Three. This paper is concluded in Section Four.

2.0. DEFINING THE CONCEPT OF NUISANCE

The word ‘nuisance’ is derived from the Old French word ‘nuire’ which means “to cause to harm, or to hurt or to annoy.”^[6] In ordinary parlance, the word is used to mean any source of inconvenience or annoyance.^[7] However, for the purpose of the law of tort, it may be described as the “unlawful interference with a person’s use or enjoyment of land or of some right over, or in connection with it.”^[8] This tort has become the most common means of instituting environmental complaints in  modern times among the four classes of torts relevant to environmental protection – that is, nuisance, negligence, trespass and the rule in Rylands v Fletcher.^[9] As observed by Lord Pollock in Bamford v Turnley:[10]

“I do not think that the nuisance for which an action will lie is capable of any legal definition which will be applicable in all cases and useful in deciding them. The question so entirely depends on the surrounding circumstances…it must at all times be a question of fact with reference to all the circumstances of the case.”

Thus, the term “nuisance” has no objective legal definition which can encompass all circumstances. However, an indicative meaning may be found in definitions articulated by certain scholars. According to Salmond,^[11] nuisance consists of the “causing or allowing to cause without lawful justification, the escape of any deleterious thing from one’s land or from anywhere into land in possession of the plaintiff, such as water, gas, heat, electricity etc.”  According to Clerk and Lindsell,[12]

Nuisance is an act or omission which is an interference with or annoyance to a person in the exercise or enjoyment of:

• a right belonging to him as a member of the public, when it is public nuisance;
• his ownership or occupation of land or some easement, profit or other rights used or enjoyed in connection with land, when it is a private nuisance.

The tort of nuisance is therefore an environmental problem which arises from the unlawful use of land by a person, which causes harm to another person’s proprietary right or his right as a member of the public.^[13] At common law, the tort of nuisance is broadly classified into two – Private Nuisance and Public Nuisance.

2.1. Private Nuisance

Although the term ‘nuisance’ may be difficult to define, no such difficulty attaches to private nuisance as a tort. According to Judge Bramwell in Bamford v Turnley,^[14] the tort of private nuisance can be defined as “any continuous activity or state of affairs causing a substantial and unreasonable interference with a [claimant’s] land or his use or enjoyment of that land.” The law of private nuisance is therefore designed to protect the individual owner or occupier of land from the substantial interference with his use and enjoyment of land.^[15] In order for a plaintiff to succeed in a private nuisance action, there are three basic elements to prove for the purpose of establishing the civil environmental liability of the defendant.

First, only those who have a legal or possessory interest in the affected land can sue in private nuisance. Thus, an owner in fee simple, a lessor under a lease or a person having a statutory right of occupancy^[16] will have sufficient interest to maintain an action.^[17] A person who has no legal, equitable or statutory interest in the affected property will not be able to maintain an action in private nuisance. An exception was made in Khorasandjian v Bush,^[18] where the court held that a woman living in her mother’s house was entitled to an injunction to prevent telephone harassment despite having no legal interest in the property. However, the House of Lords rejected this development in Hunter v Canary Wharf Ltd^[19] and noted that to remove the need for an interest in the affected property would transform the tort of nuisance from a tort to land to a tort to the persons.

Second, the plaintiff must show that the defendant’s actions caused an interference with the use or enjoyment of his land. The environmental harm suffered may be a physical invasion of the land, such as in Davey v Harrow Corporation,^[20] or noise as seen in Christie v Davey,^[21] or smells, as seen in Wheeler v J.J. Saunders.^[22] Although the plaintiff is not required to prove fault on the part of the defendant,^[23] he must show a “causal link” between the defendant’s conduct which resulted in the nuisance and the damage suffered, as held in Graham v ReChem International Ltd.^[24]

Third, and most importantly, the defendant’s interference with the use or enjoyment of the plaintiff’s land must be “substantial and unreasonable”. According to Luxmoore J. in Vanderpant v Mayfair Hotel Co. Ltd^[25] the act complained of must be “an inconvenience materially interfering with the ordinary physical discomfort of human existence.” The application of this principle is illustrated in the Nigerian case of Abiola v Ijeoma,^[26] where the plaintiff complained that the excessive noise made by the defendant’s chickens in the early hours of morning disturbed his sleep and the nauseating smell from the pens interfered with his comfort. Dosunmu J., in granting the plaintiff’s reliefs held the noise made by the chickens at the early hours of morning is worse than a triviality, and the plaintiff is justified if he complains. The learned judge further held that it is clear that the repulsive odour emitting from the pens shows that the plaintiff had suffered more than a trivial interference with his enjoyment of his land. In determining whether the defendant’s activity was reasonable according to the ordinary usages of mankind living in a particular society, certain factors are taken into consideration. These include the nature of the locality where the nuisance took place, the utility of the defendant’s conduct, the plaintiff’s abnormal sensitivity, the defendant’s malice, and the time and duration of the interference. However, it is important to note that the locality factor will only be taken into account in cases of substantial interference with enjoyment of land, but not in cases of physical injury to property, as illustrated in the leading English case of St. Helen’s Smelting Co. v Tipping.^[27] Actions for private nuisance causing material damage appear to be relatively rare in Nigeria, however, a classic example is the case of Ige v Taylor Woodrow (Nig) Ltd.^[28]

2.2. Public Nuisance

Public nuisance is committed where a person carries on some harmful activity which affects the general public or a section of the public.^[29] In Attorney-General v PYA Quarries Ltd,^[30] Romer L.J defined public nuisance as any act or omission “which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects.” It is therefore a criminal offence which arises from an act or omission which interferes with the comfort of the general public,^[31] and as a result, is actionable by the Attorney-General. Nevertheless, it is a tort actionable by an individual plaintiff only where he can show that the defendant’s conduct has caused him “particular damage” over and above that suffered by the public.^[32] The rationale behind this requirement of proof of particular damage is that where a wrong is committed against the general public, it is considered to be more appropriate to leave the action in the hands of the Attorney-General as the representative of the public, rather than  allow the defendant to be harassed by an unlimited number of suits by private individuals, all complaining of the same damage.^[33] Since the individual plaintiff must prove particular damage to himself, an action brought by a whole community of persons will not succeed, as seen in the case of Amos v Shell-B.P. (Nigeria) Ltd.^[34]

Examples of cases where “particular damage” was established include the case of Rose v Miles,^[35] where the defendant wrongfully obstructed a public navigable creek by mooring his barge there thus compelling the plaintiff to unload his boats and transport his cargo by land at great expense. Another is the case of Halsey v Esso Petroleum Co. Ltd,^[36] where the plaintiff’s sleep was disturbed by the noise of the defendant’s vehicles, and the paintwork of his car, which was parked in the street and was damaged by acid smuts from the defendant’s factory. Also, in Savage v Akinrinmade,^[37] the defendant’s blocking of a public street interfered with the access of staff, parents and pupils to the plaintiff’s school. It is pertinent to note that one significant feature of public nuisance actions is that the plaintiff does not need to show proprietary interest in order to bring an environmental complaint unlike a plaintiff suing in an action on private nuisance.^[38] Thus, all the plaintiff needs to prove is that he has suffered a damage over and above that suffered by the general public.^[39]

3.0. CIVIL LIABILITY FOR ENVIRONMENTAL HARM UNDER PRIVATE AND PUBLIC NUISANCE

As seen in Section Two of this paper, actions in private and public nuisance generally provide civil remedies for environmental complaints of private individuals. Where the plaintiff proves the basic elements of these torts, the court would usually award a civil remedy in his favour, which usually comes in form of damages, injunctions, or both remedies in appropriate circumstances, as seen in Maberly v Peabody and Co,^[40] and in Pride of Derby Angling Association Ltd v British Celanese Ltd. & Ors.^[41] While an award of damages usually takes the form of monetary compensation, an injunction on the other hand is an order restraining the defendant from continuing the nuisance.^[42]

While both classes of nuisance have a significant role in environmental protection, in practical terms, there are certain situations where an action in private or public nuisance will not be available to plaintiffs who seek to bring an environmental complaint. For example, an action in public nuisance will not be available to the plaintiff, unless the defendant’s activity affects the comfort of the general public, or a section of the public.^[43] Consequently, where this happens, the only available alternative means of securing a remedy may be to bring the environmental complaint in private nuisance or some environmental tort.^[44] However, since a plaintiff must show that he has sufficient interest in the affected land in a private nuisance action, the possibility of such a plaintiff securing a civil remedy is quite slim. The locality factor also affects the chances of a plaintiff  securing a remedy for an environmental harm. For example, a plaintiff who suffers from noise pollution from a neighbouring factory in an industrial area may have to tolerate the noise or move elsewhere in view of the factors which the court considers when balancing the competing land uses between him and the defendant.^[45]

Notwithstanding the above limitations of private nuisance, one distinct advantage of this class of nuisance is that a defendant will not be allowed to escape liability on a defence that he carried out the activity in accordance with an environmental permit.^[46] This is exemplified in Barr and ors v Biffa Waste Services Ltd,^[47] where the court rejected the defence that compliance with an environmental permit provided a complete defence to the plaintiff’s action in private nuisance. However, compliance with a statutory provision, such as a planning permission, may constitute a complete defence, as held by Buckley J in Gillingham Borough Council v Medway (Chatham) Dock Co. Ltd.^[48] Another advantage of actions found in private nuisance is that the court will not find for the defendant merely because he shows that his conduct was beneficial or useful to the community, for that would compel the plaintiff to “bear the burden alone of an activity from which many others will benefit.”^[49] Thus, in Bellew v Cement Co Ltd,^[50] the court granted an injunction in a nuisance action against a cement company, the effect of which was to close down the cement factory for three months. The court was unmoved by the defendant’s argument that their production of cement was vital to the public interest at a time of expansion in house building and that they were the only producers of cement in the country.

4.0. CONCLUSION

This paper has examined the role of private and public nuisance as common law tools for environmental protection. It has assessed the relevance of both classes of nuisance as a means through which individuals who have suffered an environmental harm may secure a civil remedy. This paper has also attempted to examine the limitations of actions in private and public nuisance, as well as the relevant case laws in this regard. As discussed above, while the relevance of private and public nuisance in environmental protection cannot be overemphasized, the inherent limitations to these common law tools make it difficult for a plaintiff to obtain redress for an environmental harm suffered as a result of the defendant’s conduct or activity, to the extent that the plaintiff is left without a remedy.

About the Author

Morenike Oyeleke is a penultimate year student of the Faculty of Law, University of Lagos. She is a currently a Senior Associate Editor of the UNILAG Law Review. She has keen interests in Commercial law, International law and Private and Property law. She enjoys reading and writing during her leisure time.

^[1] M. Sunkin, Sourcebook on Environmental Law, 2^nd ed. (Routledge, 2001), pp. 33 – 34; M. Wilde, Civil Liability for Environmental Damage: A Comparative Analysis of Law and Policy in Europe and the United States, (Kluwer Law International 2002), pp. xiii – xiv.

^[2] E. Ugbeta, “Reflections on the Relevance of Private and Public Nuisance in Environmental Protection”, available at https://www.researchgate.net/profile/Edafe_Ugbeta/publication/299533968_REFLECTIONS-ON-THE-RELEVANCE-OF-PRIVATE-AND-PUBLIC-NUISANCE-IN-ENVIRONMENTAL-PROTECTION.pdf (accessed 1 August, 2020).

^[3] R. Palmer, “Modern nuisance law from a historical perspective”, available at https://uwe-repository.worktribe.com/OutputFile/838527 (accessed 1 August 2020).

^[4] Beatty v Washington Metro Area Transit Auth., 860 F.2d 1117 (D.C. Cir. 1988).

^[5] Lawshelf Educational Media, “Environmental Law under the Common Law: Module 1 of 5”, available at https://lawshelf.com/videocoursesmoduleview/environmental-law-under-the-common-law-module-1-of-5/ (accessed 1 August, 2020).

^[6] A. Dubey, “The Tort of Nuisance”, available at https://www.google.com/amp/s/blog.ipleaders.in/the-tort-of-nuisance/amp/ (accessed 1 August, 2020).

^[7] G. Kodilinye and O. Aluko, Nigerian Law of Torts, 2^nd ed., (Spectrum: Ibadan, 1999), p. 92.

^[8] W.V.H Rogers, J.A. Jolowicz and P.H. Winfield, Winfield and Jolowicz on Tort, 11^th ed., (Sweet and Maxwell: London, 1979).

^[9] Supra n 2.

[10] (1862) 122 ER 27.

^[11] R.F. Heusten (ed.) and J.W. Salmond, Salmond and Heusten on the Law of Torts, 17^th ed., (Sweet and Maxwell: London, 1977).

[12] M.R. Brazier (ed.), J. F. Clerk and W.H.B. Lindsell, Clerk and Lindsell on Torts, 17^th ed., (Sweet and Maxwell: London, 1995).

^[13] Supra n 2.

^[14] Supra n 10.

^[15] Supra n 7, at p. 95.

^[16] Land Use Act 1978, Cap. L5, Laws of the Federation of Nigeria, 2004, s. 5(2).

^[17] Supra n 7, at p. 106.

^[18] [1993] QB 727.

^[19] [1997] A.C. 655.

^[20] [1958] 1 Q.B. 60.

^[21] [1893] 1 Ch. 316.

^[22] [1995] 2 All E.R. 697.

^[23] Supra n 2.

^[24] [1996] Env LR 158.

^[25] [1930] 1 Ch. 138.

^[26] [1970] 2 All N.L.R. 268.

^[27] (1865) 11 E.R. 1483.

^[28] [1963] L.L.R. 140.

^[29] Supra n 7, p. 92.

^[30] [1957] 2 Q.B. 169.

^[31] Supra n 2.

^[32] Amos v Shell-B.P. (Nigeria) Ltd (1974) 4 E.C.S.L.R. 486 at p. 488; Oyidiobu v Okechukwu (1972) 5 S.C. 191 at p. 198.

^[33] Supra n 7, at p. 93.

^[34] Supra n 32.

^[35] (1815) 105 E.R. 773.

^[36] [1961] 2 All E.R. 145.

^[37] [1964] L.L.R. 238.

^[38] Supra n 2.

^[39] Supra n 7.

^[40] [1946] 2 All E.R. 192.

^[41] [1953] Ch 149.

^[42] Supra n 2.

^[43] Supra n 30.

^[44] Supra n 2.

^[45] Murdoch v Gracier Metal Co. (1998) Envr. LR, 732.

^[46] Supra n 2.

^[47] [2013] Q.B. 455.

^[48] [1993] Q.B. 343.

^[49] Supra n 7.

^[50] [1948] L.R. 61.