Nuisance as a Statutory Tort

Nuisance is unacceptable interference with the personal comfort or amenity of neighbors or the nearby community. The range of activities that may give rise to an action in nuisance is manifold, such as emission of noxious fumes, smoke or noise emission. But not every instant of smoke or noise can be characterized as a nuisance. Thus it is impossible to explicitly state what is termed as nuisance.

Thus as observed in St Helen’s Smelting Co v Tipping[1]– the plaintiff purchased a very valuable estate, which lies within a mile and a half from certain large smelting works. What the occupation of these copper smelting premises was anterior to the year 1860 does not clearly appear, the plaintiff became the proprietor of an estate of great value in the month of June 1860. In the month of September 1860, a very extensive smelting operation began on the property of the present defendants in their works at St. Helen’s. Of the effect of the vapors’ exhaling from the whose works upon the plaintiffs property, and the injury done to his trees and shrubs, there is abundance of evidence of nuisance in this case. The reports were given out by Mellor J, who said that an actionable injury was one producing sensible discomfort; that every man unless enjoying rights obtained by prescription or agreement, was bound to use his own property in such a manner as not to injure the property of the neighbors’, that there was no prescriptive right in this case; that everything must be looked at from a reasonable point of view; and therefore; in a action for nuisance to property, arising from noxious vapors’, the injury to be actionable must be such as visibly to diminish the value of the property and the comfort and enjoyment of it. The learned judge asked the question of whether the enjoyment of the plaintiff’s property was sensibly diminished, and whether the business there carried on was an ordinary business for smelting copper. On the basis of the answer to the above two questions, right to a new appeal was denied and the defendant was asked to pay damages for the nuisance of property to the plaintiff.

Another point that has been stressed in nuisance is that the law of nuisance was not designed to cover personal injuries. It was exclusively concerned with acts or omissions causing violations of land or interests in or over land. In Hunter v Canary Wharf Ltd[2]– the case was brought by residents living in the area around Canary Wharf. In one action of nuisance ,damages were sought for a period of time when there was interference with television reception caused by the building of the Canary Wharf tower on the land Canary Wharf Ltd had developed; and on this the House of Lords said that there was no actionable nuisance, in the absence of a restrictive covenant or easement of light or air, to build as he pleased Lord Hoffmann expressly stated that he could see no reason in principle why it should not be actionable in an appropriate case.

The acts that come under statutory nuisance are – The Environmental Protection Act 1990 (EPA 1990) which entrusts local authority with the primary responsibility for the operation of the statutory nuisance regime. It requires local authorities to carry out certain duties for example to survey the area and investigate an individual complaint. It also gives them powers.

Under the EPA 1990, the following are some of the matters that constitute “statutory nuisance” for the part of 6A, subsection (2)

• Any premises in such a state as to be prejudiced to health or a nuisance
• Smoke emitted from premises so as to be prejudicial to health or a nuisance
• Fumes or gases emitted from premises so as to be prejudicial to health or nuisance
• Any dust, steam , smell or other effluvia arising on industrial or business premises and being prejudiced to health or nuisance
• Any accumulation or deposit which is prejudicial to health or nuisance
• Noise emitted that is prejudicial to health or nuisance, caused by a vehicle, machinery or equipment in a street or road.

Another very important act that came into force in relation to nuisance was the Human Rights Act 1998, on 2 October 2000.  Section 6(1) of the HRA 1998 makes it unlawful for public authorities to act or to fail to act in a way that would be incompatible with a convention right. ‘Public authority’ is widely defined and includes anybody the functions of which include functions of a public nature. There can be no doubt that a local authority charged with the exercise of powers and duties in respect of statutory nuisance is a public authority for the purposes of HRA 1998.

Control of Pollution Act 1974 Section 62 is designed to prohibit at certain times and, in some cases at all times, the use of loud speakers in a street. A street is defined as including a highway and any other road, footway, square or court which is for the time being open to the public. The section is aimed particularly at the use of loudspeakers by street traders and shops

Under the act of COPA, an individual needs to keep in mind, the following points

• Control of noise on construction sites
• Prior consent to work on construction sites
• Reduction of noise levels

Section 62 (1) sets out the general rule, which is subject to exceptions, that loudspeakers shall not be operated in the street between 9 pm to 8 am for any purpose; or at any other time for the purpose of advertising any entertainment, trade or business-

• investigation of complaints of noise from a dwelling at night
• warning notices
• seizure of machinery causing noise unlawfully

The Clean Air Act 1993 is a consolidating statute bringing together provisions relating to atmospheric pollution principally from the Clean Air Acts 1956 and 1968 and from the Control of Pollution Act 1974. The Clean Air Act develops a system of controlling atmospheric emissions principally by focusing on the visibility of smoke. It is an important tool for dealing with domestic and some industrial and commercial sources of air pollution.

[1] House of Lords  (1865) 11 HL Cas 642

[2] House Of Lords(1997) 2 ALL ER 426

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