Public nuisance: a common law crime

Public nuisance is traditionally a criminal offence, defined as an unlawful act or omission which endangers or interferes with the lives, comfort, property or common rights of the general public. Though a criminal offence, a public nuisance can also give rise to a civil claim for damages.

A public nuisance is conduct, behaviour, (or lack thereof), where injury, loss or damage is suffered by the local community as a result. Court proceedings for public nuisances are generally instigated by local authorities through the Magistrates’ Court or the Crown Court. On conviction, the defendant can be ordered to pay a fine and/or receive a prison sentence.

Public nuisances can include:

• Obstructing the highway (everyday obstructions such as road repairs and scaffolding are, however, lawful if they are reasonable and do not occur for an excessive time).
• Dust emanating from factories.
• Noise from brothels.
• Sewage leaking into rivers.

Many public nuisances cause damage to individuals and businesses. In those cases, a claimant can bring civil proceedings for damages.

Many types of commercial operations are at risk of committing a public nuisance, but identifying the public affected is not always straightforward. For example, in a 1957 case, 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 Her Majesty’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 Her Majesty’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.

In his judgment, Lord Denning helpfully clarified the meaning of the public: “A public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.”

It is not necessary for the defendant to have knowledge of the nuisance. It is sufficient to show that they were negligent, ie. they ought to have known that a nuisance would occur.

Following a number of important cases and statutory developments, the common law offence of public nuisance has all but disappeared, and been replaced by specific criminal offences under legislation such as the Criminal Justice and Public Order Act 1994 and the Protection from Harassment Act 1997.

This means prosecutions are now brought under the relevant legislation rather than by virtue of the common law.

Special mention ought to be given to the Environmental Protection Act 1990. Under section 80 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 noises in the street, such as those 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. However, the procedures are complicated, and many local authorities may be wary of attempting enforcement.

In addition, the Noise Act 1996 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.