Nuisance - Public Nuisance and Private Nuisance

In one minute

Nuisance is an unlawful, indirect interference with a person's use or enjoyment of land, or with the comfort of the public. It is private nuisance when it affects an individual and public nuisance when it affects a class of the public.

In exams, this topic is asked as "distinguish public nuisance from private nuisance" and as a problem on noise, smoke or smell from a neighbour. The usual traps are special damage in public nuisance and the fact that reasonable care is no defence.

Legal provision

• No Indian statute defines civil nuisance. The tort comes from English common law and is applied in India as justice, equity and good conscience.
• Code of Criminal Procedure, 1973, section 133 (now section 152, Bharatiya Nagarik Suraksha Sanhita, 2023): a Magistrate can order removal of a public nuisance.
• Bharatiya Nyaya Sanhita, 2023: public nuisance is also an offence.
• Specific Relief Act, 1963, sections 36 to 42: injunctions against nuisance.
• Indian Easements Act, 1882, section 15: an easement can be acquired by twenty years of uninterrupted enjoyment as of right. A right to commit a nuisance can arise in this way for a private nuisance.
• Article 21, Constitution of India: the right to life includes a pollution-free environment. Public interest litigation is used against public nuisance.

Meaning and definition

Nuisance is an unlawful interference with a person's use or enjoyment of land, or of a right connected with it. The source is usually outside the claimant's land. Smoke, noise, smell, vibration and fumes are examples. Because the interference is indirect, nuisance differs from trespass. It is not actionable without damage in the way trespass is.

It rests on the maxim sic utere tuo ut alienum non laedas (use your own property so as not to harm another's). It is balanced by the principle of "give and take, live and let live". Neighbours must put up with ordinary, reasonable interference.

Detailed explanation

Step 1: Private nuisance and its essentials

Private nuisance is an unlawful interference with an individual's use or enjoyment of his land. It can be sued upon only by a person with an interest in the land. In Hunter v. Canary Wharf Ltd. (1997), the House of Lords held that a person with no interest in the land, such as a lodger or a child, cannot sue.

1. Substantial interference. Trivial interference that an ordinary person would put up with is not actionable.
2. Unreasonable in the circumstances. The court looks at duration, frequency, intensity, time of day, locality and the defendant's motive.
3. Damage. There must be physical damage to property, or serious interference with ordinary comfort.

Step 2: Two kinds of private nuisance

• Nuisance causing damage to property. Locality is not a defence. St Helen's Smelting Co. v. Tipping held a copper smelter liable for fumes that damaged trees and crops, although the area was industrial.
• Nuisance causing personal discomfort. Locality matters. In Sturges v. Bridgman (1879), Thesiger LJ said that what is a nuisance in Belgrave Square may not be one in Bermondsey.

Step 3: Factors the court considers

• Locality. The character of the area affects personal discomfort claims only.
• Duration. A temporary interference is usually tolerated, but not always. In Halsey v. Esso Petroleum Co. (1961), smell, noise at night and acid smuts from an oil depot were a nuisance.
• Sensitivity. In Robinson v. Kilvert (1889), heat from the floor below spoilt the claimant's sensitive paper stock. The defendant was not liable, because ordinary use of the premises would not have harmed ordinary goods.
• Malice. In Christie v. Davey (1893), the defendant banged on the wall and made noise only to annoy the music teacher next door. He was liable, because a malicious act is not reasonable use.
• Utility is no defence. That the activity is useful to the public does not excuse it. In Bamford v. Turnley (1862), the court rejected the argument that the burning of bricks was a reasonable use of land.

Step 4: Public nuisance

• Public nuisance is an act or omission that materially affects the reasonable comfort and convenience of life of a class of the public. Examples are blocking a highway, polluting a public water source, and running an offensive trade.
• In Attorney-General v. P.Y.A. Quarries Ltd., dust and vibration from a quarry affected local residents. The court said that it is enough that a representative cross-section of the class is affected.
• It is a crime. A civil action is usually brought by the Attorney-General, or by others through a relator action.
• A private person can sue only if he proves special damage, which is damage over and above that suffered by the public, such as a trader whose shop becomes inaccessible.

Step 5: Indian cases

• In Municipal Council, Ratlam v. Vardhichand, residents of a ward in Ratlam asked a Magistrate to order the Municipality to clean up open drains, open latrines and factory effluent. The Supreme Court held that lack of funds is no defence to a statutory duty. It approved a cheaper scheme with a one-year deadline.
• In Ushaben v. Bhagyalaxmi Chitra Mandir (1978), the Gujarat High Court refused to stop the screening of a film said to hurt religious feelings. The wrong alleged was not an interference with physical comfort, so it was not a nuisance.

Step 6: Defences

• Defence of prescription. Twenty years of open, uninterrupted nuisance, in a private nuisance, can give a right to continue it. There can be no prescriptive right to commit a public nuisance.
• Statutory authority. An act authorised by statute, if the nuisance is its inevitable result, and done with due care.
• Consent of the claimant.
• Not defences: reasonable care, public benefit, coming to the nuisance (the claimant moved in after it began), and that others also contribute.

Step 7: Remedies

• Damages for physical damage and loss of comfort.
• Injunction to stop a continuing nuisance. The court may suspend it to allow time to cure the nuisance.
• Self-help (abatement), such as cutting overhanging branches back to the boundary. Notice should be given where practicable and no more harm done than needed.
• Magistrate's order under section 133 of the Code of Criminal Procedure (now section 152 of the Bharatiya Nagarik Suraksha Sanhita, 2023) for a public nuisance.

• Nuisance
  • Private nuisance
    • Damage to property: locality is no defence
    • Personal discomfort: locality matters
  • Public nuisance
    • Affects a class of the public: Attorney-General or relator action
    • Private suit needs special damage

Don't confuse: public nuisance and private nuisance

Point	Public nuisance	Private nuisance
Who is affected	A class of the public	An individual's land
Nature	A crime and a civil wrong	A civil wrong only
Who can sue	Attorney-General, or a person with special damage	A person with an interest in the land
Prescription	No right to commit it	Possible after 20 years
Remedy	Injunction, Magistrate's order, prosecution	Damages, injunction, abatement

Common mistakes

• Calling indirect interference trespass.
• Using locality as a defence when property is damaged.
• Saying that a private person can always sue for public nuisance. Special damage is needed.
• Saying that reasonable care is a defence. It is not.
• Saying that the claimant who came to the nuisance cannot sue. That is not a defence.

Apply it

Leading case laws

• St Helen's Smelting Co. v. Tipping (1865)

  Facts. Fumes from copper smelting works damaged trees and crops on the claimant's neighbouring estate.

  Principle. Where there is material injury to property, the character of the locality is no defence.

  Significance. Leading case on private nuisance.

• Attorney-General v. P.Y.A. Quarries Ltd. (1958)

  Facts. Dust and vibration from a quarry affected local residents, and the Attorney-General sued for an injunction.

  Principle. A public nuisance affects a class of the public. A representative cross-section is enough.

  Significance. Test for public nuisance.

• Municipal Council, Ratlam v. Vardhichand (1980)

  Facts. Residents of a ward in Ratlam sought an order against the Municipality over open drains, open latrines and factory effluent.

  Principle. Lack of funds is no defence to a statutory duty.

  Significance. Public nuisance and public duty.

• Hunter v. Canary Wharf Ltd. (1997)

  Facts. Residents claimed for interference with television reception by a tall building.

  Principle. Only a person with an interest in the land can sue in private nuisance.

  Significance. Standing in private nuisance.

How to write this answer in the exam

Key points to remember

• Nuisance is indirect interference with use or enjoyment of land.
• Locality is no defence where property is damaged (St Helens).
• Public nuisance needs a class of the public. A private suit needs special damage.
• Reasonable care, public benefit and coming to the nuisance are not defences.
• Remedies: damages, injunction, abatement, Magistrate's order.

Quick self-test

Related topics

• Trespass to land
• Torts affecting Immovable Property
• Rule of Strict Liability (Rylands v. Fletcher)