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ASSESSING THE RELEVANCE OF PRIVATE AND PUBLIC NUISANCE IN ENVIRONMENTAL PROTECTION


ASSESSING THE RELEVANCE OF PRIVATE AND PUBLIC
NUISANCE IN ENVIRONMENTAL PROTECTION
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Unilag Law Online Forum October 2, 2020 0 comment

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 19th 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, 2nd 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, 2nd ed., (Spectrum: Ibadan, 1999), p. 92.

[8]
W.V.H Rogers, J.A. Jolowicz and P.H. Winfield, Winfield and Jolowicz on Tort, 11th 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, 17th ed., (Sweet
and Maxwell: London, 1977).

[12] M.R. Brazier (ed.), J. F. Clerk and W.H.B. Lindsell, Clerk and Lindsell on Torts, 17th 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.

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