AFRICA NAZARENE UNIVERSITY

LAW SCHOOL
COURSE UNIT: TORT II
COURSE CODE: LAW 201
COURSE INSTRUCTOR: DR. CHARLES A. KHAMALA, SENIOR LECTURER
TRIMESTER: SEPTEMBER-DECEMBER 2020

LECTURE TWELVE: THE LAW OF PUBLIC NUISANCE

After this lecture you will understand:

o Historically, the conduct associated with a public nuisance claim has been described as
being quasi-criminal. Conduct is considered quasi-criminal when it is unreasonable
under the circumstances and could cause injury to someone who is exercising a
common, societal right. When such conduct is uncovered, public nuisance law provides
a means for governments to stop it.
o Professor William Prosser also thought that a public nuisance was “a criminal
interference with a right common to all members of the public.” He believed that its
use should be limited to situations where there was a violation of a criminal statute.
o The courts consider several factors when determining whether the defendant has
committed a nuisance and whether the plaintiff is entitled to a remedy. The defendant’s
actions must considerably interfere with the plaintiff’s enjoyment of property and
violate their right to comfort. The courts will weigh the interests of both parties and
consider whether the defendant has made an attempt to minimize the alleged nuisance,
or if the defendant has the means to do so.
o If the courts determine that the nuisance that exists is one involving hazardous activity
towards others, then the defendant will be subject to strict liability. This differs from
negligence because even if the defendant took all possible precaution to guard against
harm, it is the nature of the defendant’s activities that holds him strictly liable.

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 1. PUBLIC NUISANCE

Public nuisance is a condition that endangers safety or health; is offensive to the senses, or
obstructs the free use of property so as to interfere with the comfortable enjoyment of life or
property by an entire community or neighbourhood or by any considerable number of
persons. According to the Restatement (Second) of Torts, “[a] public nuisance is an
unreasonable interference with a right common to the general public.”
Lord Denning defines a public nuisance in Attorney-General v P.Y.A. Quarries Ltd.
[1957], as follows:
“It is a nuisance which is so widespread in its range and so indiscriminate in its effect
that it would not be reasonable to expect one person to take proceedings on the his
own responsibility to put a stop to it, but that it should be taken on the responsibility
of the community at large.”
However, a more classical definition was to be found in Romer, LJ’s judgment:
“…any nuisance is ‘public’ which materially affects the reasonable comfort and
convenience of life of a class of Her Majesty’s subjects. The sphere of the nuisance
may be described generally as ‘the neighbourhood;’ but the question whether the local
community within that sphere completes a sufficient number of persons to constitute
a class of the public in a question of fact in every case.”
The key element in this definition of public nuisance claims (in contrast to a private nuisance
claims) is that the “inconvenience,” “damage,” or “interference” must be to a public right –
not a private one. This requires proof that the injury is common to the general public. An
example can be drawn from the decision of the Tanzanian High Court in Festo Balegele and
749 others v Dar es salaam City Council [1991] where the plaintiffs were residents of
Kundunchi-Mtongani. The defendant city council used this site to dump the city’s waste in
execution of their statutory duty of waste disposal. This dumped refuse endangered the
residents’ lives. The plaintiff’s prayer for restraining orders was granted by the High Court.
Nuisance are public where they violate public rights, and produce a common injury,
and where they constitute an obstruction to public rights, that is, the rights enjoyed by
citizens as part of the public … If the annoyance is one that is common to the public generally,
then it is public nuisance… The test is not the number of persons annoyed, but the possibility

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of annoyance to the public by the invasion of its rights. Two cases can be looked at to contrast
this principle: In R v Madden [1975] the defendant telephoned a bomb hoax to a steel works
whose business was disrupted for about an hour. James, LJ accepted that hoax telephone call
falsely asserting the presence of explosives could amount to an offence of public nuisance but
the employees whose day was disrupted were not a sufficiently wide class of the public. But in
R v Norbury [1978] the defendant made 605 obscene telephone calls to 494 different women
over a period of four years. This repetitive behaviour over a long period, intended to cause
offence and alarm, was held the kind of behaviour which the public has an interest in
condemning.
It is quite problematic to determine what amounts to a public disturbance. The court
adopts a strict interpretation to arrive at a formidable conclusion. Take for example in R v
Johnson (Anthony) [1997], the Court of Appeal adopted a strict holding. The defendant had
made hundreds of obscene telephone calls to at least thirteen women. The defence argued each
telephone call was a single isolated act to an individual. Tucker, J rejected the argument at
pages 370-371:
“In our judgment it is permissible and necessary to look at the cumulative effect of
these calls, made to numerous ladies on numerous occasions in the case of each lady,
and to have regard to the cumulative effect of the calls in determining whether the
appellant’s conduct constituted a public nuisance. In our opinion it was conduct which
materially affected the reasonable comfort and convenience of a class of Her
Majesty’s subjects: see per Romer, LJ in Attorney-General v PYA Quarries Ltd. ‘It
was a nuisance which was 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 her
own responsibility, but that they should be taken on the responsibility of the
community at large’ see Denning, LJ… It was proved by the Crown that the public,
meaning a considerable number of persons or a section of the public, was affected, as
distinct from individual persons.”
Primarily, public nuisance is a criminal offence, however, it only becomes a tort if the plaintiff
can prove that they suffered “special damage” over and above the effects on the other affected
people in the “class.” In Castle v St. Augustine’s Links [1922], the plaintiff car driver was stuck
by a golf ball hit from the defendants’ golf course as he was driving on the highway. Balls

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frequently went over the highway. The court observed that, the class of persons affected was
highway users. The plaintiff had suffered special damages, so the defendants were liable in
public nuisance.
The test for the required size of a “class” was also discussed in Attorney-General v PYA
Quarries Ltd, with the court concluding that the test was whether the nuisance was:
“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.”

2. DEGREE OF HARM

To be a nuisance, a defendant’s interference with the public right must be “substantial”. It cannot
be a “mere annoyance,” a “petty annoyance,” a “trifle,” or a “disturbance of everyday life.”
The interference must be substantial, objectionable to the ordinary reasonable man, and one that
materially interferes with the ordinary physical comfort of human existence according to plan,
sober, and simple notions.
The harm must also be unreasonable. Traditionally, this requires a risk-benefit analysis
weighing the gravity and probability of a risk occurring against the utility of the activity or
conduct. This test was a judicial attempt to control the potentially “disruptive consequences of
injunctive relief” and allowed courts to find that some interferences with the use and enjoyment
of land were not actionable. The defendant’s action should also be foreseeable. Consequently, a
plaintiff must show that it was foreseeable that each defendant’s conduct would create the
public nuisance. And therefore, the plaintiff’s injury must be the type of injury that a
reasonable person would see as a likely result of the defendant’s conduct. Otherwise, the tort of
public nuisance becomes limitless if courts allow a defendant’s liability to be based on
something other than independently tortuous conduct, violation of a statute, or conduct that is
intentional and unreasonable.
In Tate & Lyle v Greater London Council [1936], Tate & Lyle operated a sugar
refinery on the bank of the river Thames. They had a jetty from which raw sugar would be
offloaded from barges and refined sugar would be taken. The sugar would be taken be larger
vessels and then transferred to smaller barges to enable them to get through to the shallow
waters. As part of development Tate & Lyle wished to construct a new jetty and dredge the

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water to accommodate the larger vessels. At the same time the Greater London Council was
constructing new ferry terminals. The design of the ferry terminals was such that it caused
siltation of the channels. After using the channels for a short while, Tate & Lyles larger vessels
were no longer able to make them. Further dredging at the cost of £540,000 was required to
make the channel and jetties usable by the vessels. Tate & Lyle brought an action in negligence
and nuisance to recover the cost of the extra dredging. It was held that the claim in negligence
and private nuisance failed since they did not possess depth of rights which enabled them to
insist on any particular depth of water. The claim succeeded in public nuisance since the
interference caused by the ferry terminals affected public navigation rights. Tate & Lyle
suffered particular damage as a result of this interference.
Because public nuisance is primarily a criminal matter, and affects a “class” of people
rather than an individual, claims are normally brought by the Attorney-General or the Director
of Public prosecution, depending on the jurisdiction as representing the affected people. Other
members of the affected class are allowed to sue individually, but only if they have suffered
“special damage”
The potential defendants in public nuisance claims are the same as those in private
nuisance, with their liability dependant on a test of reasonableness; in public nuisance, however,
this is determined by looking solely at the interference, not the defendant’s actions.

3. WHO CAN BRING A CLAIM UNDER PUBLIC NUISANCE

At common law, action for public nuisance is instituted by the relevant authorities, which is
usually the Attorney-General and where it is to be instituted by a private individual, the
permission of the Attorney-General must be sought. However, in Kenya, section 3 of the
Environmental Management and Co-ordination Act (Chapter 387 Laws of Kenya) provides
that; (1) Every person in Kenya is entitled to a clean and healthy environment and has the duty
to safeguard and enhance the environment. Sub-section (2) provides:
“The entitlement to a clean and healthy environment under subsection (1) includes the
access by any person in Kenya to the various public elements or segments of the
environment for recreational, educational, health, spiritual and cultural purposes.

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 (3) If a person alleges that the entitlement conferred under subsection (1) has been, is
being or is likely to be contravened in relation to him, then without prejudice to any
other action with respect to the same matter which is lawfully available, that person may
apply to the High Court for redress and the High Court may make such orders, issue
such writs or give such directions as it may deem appropriate to –
(a) prevent, stop or discontinue any act or omission deleterious to the
environment;
(b) compel any public officer to take measures to prevent or discontinue any act
or omission deleterious to the environment;
(c) require that any on-going activity be subjected to an environment audit in
accordance with (section 68);
(d) compel the persons responsible for the environmental degradation to restore
the degraded environment as far as practicable to its immediate condition prior to
the damage; and
(e) provide compensation for any victim of pollution and the cost of beneficial
uses lost as a result of an act of pollution and other losses that are connected with
or incidental to the foregoing.”
In addition an aggrieved person may require that any ongoing activity be subjected to
environmental monitoring in accordance with section 69.
Thus, notwithstanding that an individual cannot prove that he or she has suffered damage
over and above that suffered by the general public nevertheless, that individual can institute an
action under this nuisance. Most applicants are inclined to be parsons suffering disproportionate
harm from environmental degradation. In Attorney-General v Kafeero Mambule [1959], while
in the process of construction of the road, a heap of soil was piled on the side of the road, and
as a result, the plaintiff’s business at the road side could not be accessed. At that time, under
common law locus standi was required. It was that the plaintiff was entitled to bring the claim
because the damage suffered by him was over and above that suffered by the general public.

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 4. DEFENCES TO NUISANCE

In addition to the ordinary defences of voluntary assumption of risk and contributory

negligence, there are other defences specific to nuisance that exonerate the defendant from
complete liability.

(a) Statutory Authority

If the nuisance is caused by the activities of a local authority (or any other body acting under
statutory powers), it may be a defence that it is acting within the scope of its authority and
therefore authorized by parliament either expressly or implicitly to act in this way. It is a
question of interpretation of the relevant Act. An example can be seen in the case of Allen v
Gulf Oil Refining Limited [1981]. Parliament intended a refinery to be constructed. There was
a statutory immunity in respect of any nuisance which was an inevitable result. The Plaintiff,
however, brought an action in an nuisance for the smell, noise and vibration created by an oil
refinery which had been constructed by the defendant on their land. The defendant’s action in
constructing the oil refinery was authorized by an Act of Parliament. Lord Wilberforce stated:
“The respondent alleges a nuisance by smell, noise, vibration, etc. The facts regarding
these matters are for her to prove. It is then for the appellants to show, if they can, that
it was impossible to construct and operate a refinery upon the site conforming with
Parliament’s intention, without creating the nuisance alleged, or at least a nuisance.
Involved in this issue would be the point discussed by Cunning Bruce, LJ in the Court
of Appeal, that the establishment of an of an oil refinery, etc. was bound to involve
some alteration of the environment and so the standard of amenity and comfort which
neighbouring occupiers might expect. To the extent that the environment has been
changed from that of a peaceful unpolluted countryside to an industrial complex (as
to which different standards apply Sturges v Bridgman (1879) 11 Cd 852. Parliament
must be taken to have authorized it. So far, I venture to think, the matter is not open to
doubt... But in my opinion the statutory authority extends beyond merely authorizing
change in the environment and an alteration of standard. It confers immunity
against proceedings for any nuisance which can be shown (the burden of so showing
being upon the appellants) to be the inevitable result of erecting a refinery upon the

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 site not. I repeat, the existing refinery, but any refinery however carefully and with
however great a regard for the interest of adjoining occupiers it is sited, constructed and
operated. To the extent that the actual nuisance (if any) caused by the actual refinery
and its operation exceeds that for which immunity is conferred, the plaintiff has a
remedy.”

(b) Prescription
Prescription is ideally the method of acquiring an easement upon another’s real property by
continued and regular use without permission of the property owner for a period of years
required by the law of the state. Prescription provides a defence where the nuisance has
interfered with the Plaintiff’s interest in land for more than 20 years. Two points should be
noted: it does not apply to public nuisance, and time will only start from the moment the
Plaintiff is aware of the nuisance. In Sturges v Bridgman, the defendant in the case was the
occupier, for the purpose of the business as a confectioner, of a house in Wigmore Street. In the
rear of the house was a kitchen, and in that kitchen there were for over twenty years, two large
mortars in which the sweets and other materials of the confectionery were pounded. The
plaintiff, who was a physician is the occupier of a house in Wimpole Street, which until recently
had a garden at the rear, the wall of which was a party-wall between the plaintiff’s and the
defendant’s premises, and formed the back wall of the defendant’s kitchen. The plaintiff has,
however, recently built upon the site of the garden a consulting-room, one of the side walls of
which the case of the mortars, before and at the time of action brought, a noise was caused
which seriously inconvenienced the plaintiff in the use of his consulting-room, and which,
unless the defendant had acquired a right to impose the inconvenience, would constitute and
actionable nuisance. The defendant contended that he had acquired the right, either at common
law or under the Prescription Act, by uninterrupted user for more than twenty years. It was
held that the fact the doctor had “come to the nuisance”, by which the judge meant moved to
an area where the nuisance had been operating for years without harming anyone, was no
defence. The doctor’s legal right to have the nuisance stopped was not lessened by the
confectioner’s longstanding practice.

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 5. INEFFECTIVE DEFENCES

(a) Coming to the nuisance

It is a well-established rule that the plaintiff may sue even though the nuisance was, to his or her
knowledge, in existence before he or she arrived at the premises. It is no defence to prove that
the plaintiff came to the nuisance. An example is Bills v Hall [1838], where the plaintiff moved
next to a candle-making factory which had been operating for three years, the smells and
fumes from this candle making, were held to be a nuisance, even though the defendant argued
that the plaintiff had himself come onto the nuisance.

(b) Utility
Where a defendant claims that his action is well utilized by the community, this will not
amount to a defence, although it may encourage the court to be more flexible in deciding
remedy. Adams v Ursell [1913] elucidates this category: The defendant in this case was in the
trade of selling fried fish. The shop was located in the residential part of a street. Faced with a
claim for an injunction. He argued that his business benefited the public, especially the poor
and therefore the smell produced by his trade was justified. Court rejected the defense as the
plaintiff’s comfort and convenience had to be considered.

(c) Due to many other causes

There is no excuse that the defendant was simply one of the many defendants, or factors
causing the nuisance in question. In Lambton v Mellish [1894], for example, Mellish and Cox
were refreshments contractors who live near Lambton’s property. They both used organs,
although one was much louder than the other. They were played constantly and created a
nuisance for Lambton and his family. The reasoning of the court was that if the actionable
damage is the aggregate of two or more smaller damages, then all of the parties are liable for
the remedy against the overall damage proportionally to their own input as long as they are
aware of each other’s actions. Chitty, J held that:

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 “if the acts of two persons, each aware of what the other is doing amount in the
aggregate to what is an actionable wrong, each is amenable to the remedy against the
aggregate cause of complaint.”
6. REMEDIES UNDER NUISANCE

There are three main remedies under the tort of nuisance, i.e. injunction, abatement and
damages.

(a) Injunction
An injunction is the main reedy Plaintiffs under nuisance seek, because it can be adapted to meet
the balance of competing interests. Basically an injunction consists of an order to stop the
activity causing the nuisance. They may be “perpetual”, completely forbidding the activity, or
“partial”, for example, limiting when the activity take place. If it is found that a defendant
created a nuisance, he will be responsible for providing relief. When the court issues an
injunction, it requires the plaintiff to either start or stop doing a specific action. The Court of
Appeal decision in Shelfer v City of London Electric Lighting Co. [1895] illustrates this
remedy. In this case, the Electricity Company caused structural damage to a house and
nuisance to its occupier. The trial judge awarded damages but refused an injunction. The Court
of Appeal reversed this, allowing an injunction. A.I. Smith, LJ noted:
“Many judges have stated, and I emphatically agree with them, that a person by
committing a wrongful act (whether it be a public company for public purposes or a
private individual) is not thereby entitled to ask the Court to sanction his doing so by
purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his
neighbor with the nuisance, or his rights dimmed, as the case may be. In such cases the
well-known rule is not to accede to the application, but to grant the injunction
sought, for the plaintiff’s legal right has been invaded, and he is prima facie entitled to
an injunction…”
In obtaining injunctive relief, the plaintiff may also request a temporary restraining order
which will prohibit the defendant from engaging in the alleged nuisance until the courts have
issued their ruling. The court may then issue a permanent injunction; if the defendant violates
this injunction he will be subject to fines and possible imprisonment.

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 Injunction is a drastic remedy, used only when damage or the threat of damage is
irreparable and not satisfactory compensation and not satisfactorily compensable only by
monetary damages. The court examines the economic hardships to the parties and interest of
the public in allowing the continuation of the enterprise. The same was observed in Dr. Bwogi
Richard Kanyerezi v The Management Committee of Rubaga Girls. The defendant’s pit
latrines were adjacent to the Plaintiff’s premises and emitted bad odour that inconvenienced the
quiet enjoyment of his land. The Plaintiff was given an injunction restraining the defendant
from using the pit latrines.

(b) Abatement
This remedy is also referred to as self-help. Abatement as a remedy is available under limited
circumstances. This privilege must be exercised within a reasonable time after learning of the
nuisance and usually requires notice to the defendant and the defendant’s failure to act.
Reasonable force may be used to employ the abatement, and a plaintiff may be liable for
unreasonable or unnecessary damages. For instance, tree branches that hung from a
neighbour’s tree to a Plaintiff’s fence, a Plaintiff is legally entitled to cut back any branches or
roots from a tree which protrude onto his or her land up to the fence line. The Plaintiff does not
have to give any warning that they are going to do this, although it is recommended that he or
she discusses it with the defendant first. In this regard similarly, anything cut off from a
defendant/neighbour’s tree belongs to the defendant/neighbor and should be returned.
A classical explanation on abatement was seen in the case of Delaware Mansions Ltd. v
Westminster City Council [2001], where the council refused to remove a mature plane tree
that was causing damage to a building. The Plaintiff therefore spent a reasonable amount of
money carrying out underpinning works and claimed the cost for that sum. The Plaintiff was
not merely entitled to damages for the damage to property that had occurred during its period
of ownership. If the tree had been removed the need to underpin would have been avoided and
the total cost of repair to the building would have been less. In his judgment, Pill, LJ said:
“Thus, where there is a continuing nuisance, the owner is entitled to a declaration, to
abate the nuisance, to damages for physical injury and to an injunction”.

(c) Damages

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Damages are the monetary compensation a plaintiff can claim from court if he can prove that
the defendant(s) nuisance damaged his property interests on the land, and infringed on the
quiet enjoyment of the plaintiff’s land, or most importantly that the nuisance injured the
plaintiff in some way or other, for instance, it injured his health. It should be remembered that
damages are sought both under private and public nuisance.
Private nuisance, as a tort to land, is considered to protect proprietary interests. The
rule, therefore, as suggested by the leading case of Hunter v Canary Wharf, would seem to be
that the householder may obtain damages for interference with his or her interest in land, be it
physical or non-physical, but not for personal injury. Damages will be awarded for the
diminution in the value of the land or lesser enjoyment of the use of land or its fixture.
An Alcoa Minerals v Broderick [2000], a smelting plant which had been operated by
the defendant since 1972 generated and dispersed into the atmosphere pollutants, noxious gases
and corrosive dust, which the plaintiff claimed caused corrosion to the galvanized zinc panels
of the roof of his nearby house and other injury to his property and health. When the damage
had first occurred he had repaired it but by 1989 the damage had occurred again and he was
unable to pay for the necessary repairs. In 1990 he commenced proceedings against the
defendant claiming damages in nuisance. The Privy Council held that it was foreseeable that if
the house of a person in the position of the plaintiff was seriously damaged he would not or
might not have the wherewithal to repair it and that his ability to do so would depend on his
establishing the liability of, and recovering damages from, the defendant and, consequently, the
increased cost of repairing the damage was not too remote.
It follows that damages for nuisance recoverable by the possessor or occupier may be
affected by the size, commodiousness and value of his property but cannot be increased merely
because more people are in occupation and therefore suffer greater collective discomfort. If
more than one person has an interest in the property, the damages will have to be divided
among them. Once it is understood that nuisances “productive of sensible personal
discomfort” do not constitute a separate tort of causing discomfort to people but are merely
part of a single tort of causing injury to land, the rule that the plaintiff must have an interest in
the land falls into place as logical and, indeed, inevitable. As illustrated in Andreae v Selfridge
& Co. Ltd. [1938], the plaintiff had a hotel. The rest of the island had been acquired by the
defendant company which was demolishing and rebuilding the other properties. Selfridge

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failed to keep the noise and dust of building work to a minimum and was found liable under
nuisance as it had conducted its operations in such a way that noise and dust had interfered
with the reasonable and comfortable occupation of Andreae on her premises. Court stated that
the contractor must take proper precautions, and see that the nuisance is reduced to a
minimum as Andreae had suffered damages.
In Halsey v Esso Petroleum Co. Ltd. [1961], the plaintiff brought this action against the
defendants, the Esso Petroleum Company Co., the owners and occupiers of an oil storage and
issuing depot, the Hammersmith Depot adjoining Rainville Road, claiming an injunction to
restrain the defendants, their servants or agents from carrying on or permitting to be carried on
their business at their depot in such a manner as:
(a) to cause or permit excessive and prolonged vibration from boilers and pumps
installed in the depot through the 24 hours of the day and night;
(b) to cause or permit such excessive and prolonged noise from the boilers and pumps;
(c) to cause or permit the discharge from the smoke stacks of the boilers of harmful
substances, which, inter alia, discoursed and rotted clothes and damaged motor-car
cellulose and paint work;
(d) to cause or permit excessive noise by oil tankers arriving at and leaving the depot at
all hours of the day or night; and
(e) to cause or permit obnoxious vapours or fumes to be emitted from the depot, or
otherwise to conduct the depot so as to cause a nuisance to the plaintiff’s property in
Rainsville Road and to him or members of his family in the occupation of his property.
The plaintiff also claimed damages, including special damage of A£5 for damaged clothing and
A£100 by reason of damage to the paintwork of his car.
Another illustration of damages was found in British Celanese v AH Hunt Ltd. [1969],
where an electronics company stored foil strips on their property which blew onto adjoining
land, causing the power supply to a nearby yarn manufacturer to cut off. A similar incident had
occurred three years earlier and the defendants had been warned to store their strips properly; it
was held that even though the power cut was a one-off event, the method of storing the foil
strips constitute a continuing state of affairs, and the defendants were liable.

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