Nuisances, as a branch of tort law, are classified in several ways. One of the most common is to classify a nuisance as either a private nuisance or a public nuisance.
Halsbury’s defines a public nuisance as follows:
“A public nuisance is one which inflicts damage, injury or inconvenience on all the (pubic) or on all members of a class who come within the sphere or neighbourhood of its operation.... The question whether the number of persons affected is sufficient to constitute a class is one of fact.”
Clearly, therefore, a distinguishing feature of a public nuisance is that the tort is public; that it bothers or impinges upon the rights of more than one person. Another is that a private nuisance is only available to protect rights associated with the use or ownership of real property.
The courts have struggled with the scope threshold. In R v Lloyd, the fact of three persons affected by the nuisance was held to be not enough for a nuisance to be public. But in BC v Haney Speedways, seven plaintiffs was enough for a nuisance to be characterized as a public nuisance.
In AG v PYA Quarries Ltd., Lord Denning wrestled with the threshold and offered this test; that the nuisance is a public nuisance where it is:
“ ... so widespread in its range or indiscriminate in its effects that it is not reasonable to expect one person to take proceeding on his own responsibility to put a stop to it, but that it should be taken the responsibility to the community at large.”
The nature of the impingement seems as wide as the traditional expansive and apparently infinite universe of possible nuisances. In the Canadian version of Halsbury’s Laws of Canada, the authors note that public nuisances have been found to include damage suffered as a result of a dangerous condition of public land such as a highway, or:
“ .... the right to fish in public waters, the right to navigate public waters free from obstruction, and the right to travel a highway unimpeded as well as a sidewalk free from pigeon droppings.... and oil spill, a railway track on a city street endangering motorcyclists, a backed up sewer, or noise from light aircraft.
“Thus, although the entire population need not be affected, a public nuisance must relate to an interest common to all.”
In England, the following have been held to be public nuisances:
- Keeping a dead body unburied;
- Walking about with a known communicable and dangerous disease;
- Walking about bearing a firearm; and
- Making obscene telephone calls.
Prostitution has been a novel target of the law of public nuisance. As Canadian law gradually decriminalized the behaviour, creative municipal lawyers tried to curtail it by prosecuting it as a public nuisance. In BC v Couillard, the judge agreed. When the same tact was attempted in Nova Scotia a year later, the court of appeal disagreed (NS v Beaver).
Although not strictly prohibited at common law, most jurisdictions will only entertain law suits for public nuisances if they are brought by the government, or approved by the government, which explains why many public nuisance cases have names such as R v .... or Nova Scotia v ....
As aptly stated in Halsbury’s Laws of Canada, as far as public nuisances go:
“The role of ordinary individuals is merely to urge the government to act.”
This is emphasized by the inclusion in criminal law, such as s. 180 of Canada‘s Criminal Code:
"Every one who commits a common nuisance and thereby endangers the lives, safety or health of the public, or causes physical injury to any person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years."
A statute can also exempt an individual from liability for a public nuisance. If the conduct complained of is legislatively authorized, it may provide the defendant with a complete defence. Some statutes may even provide statutory immunity from nuisance claims in some limited cases such as exempting a city or town from nuisance liability for sewage discharge or smells.
A defendant may also be protected by the limitations statutes or even the support of the common law which, if the conduct has gone without complaint for a specified period of time, such as 20 years, no claim for nuisance will be allowed.
REFERENCES:
- AG v PYA Quarries Ltd. (1957) All ER 894 at page 908
- BC v Couillard 31 CCLT 26 (1984, BCSC); also published on Quicklaw at 1984 BCJ 3001
- British Columbia v Haney Speedways Ltd. (1963) 39 DLR 2d 48 (BCSC)
- Criminal Code, Revised Statutes of Canada 1985, Chapter C-46
- Duhaime, Lloyd, Legal Definition of Abatement
- Duhaime, Lloyd, Legal Definition of Nuisance
- Duhaime, Lloyd, Legal Definition of Private Nuisance
- Duhaime, Lloyd, Nuisance in Tort Law
- Duhaime, Lloyd, Prostitution and Related Offences in Canada
- Nova Scotia v Beaver 32 CCLT 170 (1985, NSCA); also published by Quicklaw at 1985 NSJ 485
- Rodrigues, G., Halsbury’s Laws of Canada, 1st ed., “Torts” (Toronto: Lexis-Nexis, 2007), pages 203-231
- R v Lloyd 170 ER 691 (1802)