PublishResearch 857

The Concept Of Nuisance In Tort Law
Research Dissertation Submitted To
Amity Institute Of Advanced Legal Studies
Amity University Uttar Pradesh
In Part Fulfilment Of Requirements for the Degree of
Master Of Laws (LLM)
Abhishek Narula
LLM (Business Law)
Enrollment No. A0319314025
Batch : 2014-15
LIST OF CONTENTS
Introduction…………….............................................................................1
Chapter 1 – The Concept Of Nuisance……………………………...….3
- Nuisance and Negligence……………………………………..………5

- Essentials to constitute negligence………………………….….……..7
- Classification of Nuisance…………………………………………….8
Chapter 2 – Global Laws Regulating Nuisance.......................................22
General Laws……………………………………………………………22
Corporate Laws…………………………………………………………28
Chapter 3 – Indian Laws Regulating Nuisance…………………………33
General Laws………………………………………………….………….33
Corporate Laws…………………………………………………………..36
Chapter 4 – Defenses Against Nuisance…………………………………38
Global Defenses…………………………………………………………...38
Indian Defenses…………………………………………………………..46
Chapter 5 – Leading Case Law………………………………………….65
Union Carbide Corporation V. Union Of India [1991] INSC 252........65
Chapter 6 – Conclusion And Suggestions………………………………68

The Concept of Nuisance In Tort Law
INTRODUCTION
The concept of Nuisance has its origin under the common law tort1. By common law here we
mean the law based on precedents or case laws. Though the common law definition of nuisance
was criticized by the courts. In lay mans language, nuisance means causing trouble or injury to
someone. Nuisance is one of the oldest causes of action known to common law. In the beginning,
the law of nuisance was made to handle the cases of trespass. Later it provided protection against
indirect injuries to land or its use or employment.
During 19th and 20th century, due to competing properties posing nuisance to each other and
cost of litigation, it became difficult to administer the law of nuisance. Nowadays, most
jurisdictions have a system of land planning which helps in determining which activities are
suitable in a given location.
Nuisance can be of two types
Firstly, Public nuisance – According to English scholar Sir J.F. Stephen, public nuisance means
‘’ an act not warranted by law, or an omission to discharge a legal duty, which act or omission
obstructs or causes inconvenience or damage to the public in the exercise of rights common to all
Her Majesty's subjects".
Secondly, Private nuisance – It means interfering with the rights of the specific people.
The remedies available to an individual against nuisance can be2 :-
- Damages
- Injunctive relief
- Or both in case of alleged separate harms.
1
http://en.wikipedia.org/wiki/Nuisance
2
http://nuisances.uslegal.com/remedies-and-procedure
CHAPTER – 1
THE CONCEPT OF NUISANCE
MEANING
The word nuisance is derived from a French word ‘‘nuire’’ which means ‘’to hurt or annoy’’.3
According to Blackstone, nuisance is ‘’ a species of real injuries to a man’s lands and tenements
which may be defined as anything done to the hurt or annoyance of the lands, tenements, or
hereditaments of another’’4. The definition itself covers the variety of wrongs occurring under
nuisance .
Under the common law, land owners or lease holders etc who possess the real property have a
right to enjoy their property to the fullest. Though this does not include those people who have
no interest in the property of the owner or who is a visitor to such property. If an individual or a
neighbor interferes with the quiet enjoyment of the land by owner, either by making sound or
pollution or any other type of interference, then the owner of such property who has been
affected by such interference, have the right to claim a remedy under the law of nuisance.
In legal terms, the concept of nuisance is used in three ways5 :-
- Any activity that affect others. For example – a smoking chimney or an indecent conduct.
- Activities like making loud noises which effects the peaceful enjoyment of the land by an
individual.
- A legal liability arising out of the combination of the above two points.
In Bowman vs Humphery6 , Justice Weaver explained the meaning of nuisance as :-
3
http://www.legalservicesindia.com/article
4
scholarship.law.marquette.edu/cgi/viewcontent
5
6
‘’A nuisance is a condition and not an act or failure to act on the part of the person responsible
for the condition. If the wrongful condition exists and the person charged therewith is
responsible for its existence, he is liable for the resulting damages.’’
So, the existence of nuisance in a situation is not measured by its effect but by the condition
which exists at that time. Generally, nuisance refers to the interference with the enjoyment of the
land by another but where a substantial interference occurs, an action can be taken without
considering what caused the annoyance.
According to Winfield, the term nuisance means, ‘’ an unlawful interference with a person’s use
or enjoyment of land, or some right over, or in connection with it.’’7
Further in terms of the acts which can be called as nuisance are – noise, vibrations , heat, smoke,
smell, fumes, water, gas , electricity, excavation or disease producing germs.
The concept of nuisance should be distinguished from Trespass, Negligence and Rule of Rylands
v Fletcher .
1 ) Generally, trespass consists of :-
i ) a direct physical interference
ii ) with the plaintiff’s possession of land
iii ) through some materials or tangible object
Main points of distinction between nuisance and trespass are:-
a) If there is direct interference, it amounts to trespass. For example – when a person plants
a tree on another’s land, it is trespass.
Where it is consequential, it amounts to nuisance. For example – when a person plants a
tree on his own land but the roots of the tree extends to the land of another, it is nuisance.
b) In trespass, there is interference with the person possession of land.
In nuisance, there is interference with the persons use or enjoyment of land.
c) In trespass, interference is always caused by a tangible object or by some material.
7 rd
Dr. R.K. Bangia , The law of Torts, 23 edition, Pg - 176
In nuisance, interference is always committed through intangible objects like vibrations,
gas, noise, smell, electricity or smoke.
d) Trespass is actionable per se
Nuisance, a special damage has to be proved.
2 ) Nuisance and Negligence8
Between nuisance and negligence, overlapping does exist, as an act of negligence also gives rise
to the nuisance. In this case, there was escape of water from defendant’s property, which resulted
in damage to the plaintiffs property by giving rise to a cause of action under negligence or
nuisance.9 Although , negligence is not a prerequisite in an action for nuisance but we can choose
any one among them.
In another case, D was doing some construction work nearby P’s clinic. The work consisted of
excavation and piling job. The wall of P due to this act got cracked and tilted. D argued that he
took all precautions required by him to be taken. Court allowed damages to P by accepting his
claim. At the end, D in his appeal contented that the main issue in this case was of negligence
and as nuisance was not there, the appeal should be allowed.
The Supreme Court observed that negligence is not a prerequisite to the nuisance. The main
thing which is necessary here is the proof of special damage caused to P by the act of D through
his land. The appeal was dismissed as the cause of action which arose in this case was based on
the natural right of support, which was same as making a claim under the law of nuisance.10
3 ) Nuisance and the Rule of Rylands V Fletcher11
The Rule of Rylands V Fletcher puts liability when something which can cause damage by
escaping from D’s land to P’s land. This might creates a right under the law of nuisance, which is
not the case.
The main difference between the two is, in Nuisance there exist continuous interference but in
case of Rule of Rylands V Fletcher, a single act of interference is sufficient to make a claim fall
8
http://letstalkabouttort.blogspot.in/2009/03/nuisance.html
9
Seong Fatt Sawmills Sdn Bhd V Dunlop Malaysia Industries Sdn Bhd[1984] 1 MLJ 286 FC
10
Wisma Punca Emas Sdn Bhd V Dr Donal [1987] 1 MLJ 393 SC
11
into it. The Rule of Rylands V Fletcher comes into picture where there has been some special use
of land which created danger to the land of another.Although it does not include causing damage
to the property of adjoining owners by ordinary use of the land.
Historically speaking, the concept of nuisance under English law was existing since the time of
Henry III12. The term nuisance is derived from a Latin term called ‘’nocumentum’’ meaning
infringement of easement. In the beginning, there existed four types of remedies for an offence
of nuisance. First was, the assize of nuisance where defendant’s actions interfered with the
claimant. Second was, the action where the land in question was alienated, Third was, the writ of
trespass and Fourth was the action on the case for nuisance which was the main remedy because
it was faster than the other actions.
During 17th century a new perspective was emerged regarding the protection for the enjoyment
of the claimant’s land, which imposed a duty on the person who has committed nuisance to
prevent it in whatever way possible.
By the 19th century and the effect caused by industrial revolution, the law regarding nuisance
was changed drastically with different standards applying to companies and individuals. Due to
different judicial philosophers, this decision was varying in many ways. For example - In St.
Helen’s Smelting Co V Tipping - many judges were clear of the view that they were effected by
the sudden change in the laws of nuisance. Though A.V. Dicey and Adam Smith was in favour
of the philosophy of laissez faire.13
During 20th century, it became difficult to administer the law of nuisance, which resulted in land
use planning i.e. zoning. This describes what activities are allowed in a given location. For
Example – where a factory operates in an industrial area , then the people living in the
neighbouring industrial zone cannot make a claim under the law of nuisance14.
Environmental nuisance – The term environmental nuisance in the field of environmental

science, includes noise and light pollution. Though there are some exceptions to this definition
12
http://en.wikipedia.org/wiki/Nuisance_in_English_law
13
http://en.wikipedia.org/wiki/Nuisance_in_English_law
14
which does not mean environmental nuisance in legal matters. For example – excess of insects
population can be called as ‘nuisance population’ in an ecological way.15
Generally, to constitute a nuisance, the complaint regarding nuisance should be substantial,

unreasonable and intentional under the circumstances. The courts itself has created several tests
in determining the reasonableness of an interference. While deciding a case, the trial court should
keep in mind the conduct of reasonableness and balance these factors in respect of harm caused
and the nature of the effected neighbor.
In Macdonald V. Perry – A serious nuisance in one area due to density of population can be
called in another area and under different circumstances as proper and unobjectionable. The
thing which amounts to nuisance by causing inconvenience in the lawful use of a persons
property depends upon the circumstances and cannot be clearly defined.16
Essentials to constitute nuisance
The presence of nuisance in each case depends upon the facts and circumstances of it. So, there
is no specific rule which determines the presence of nuisance in a given situation.
Under the common law, the essentials which constitute nuisance are17 :-
- That a defendant committed an activity or action

- That in furtherance of that action, an injury is caused to the interest of the plaintiff.
Generally, following are the elements which should be established to constitute nuisance :-
- Unreasonableness caused by the defendant to another;

- The continuance of acts of nuisance for an unreasonable period;
- Proximate relation or connection between the defendant and nuisance complained of; and
- Existence of damage or injury.
Normally, the question regarding the presence of nuisance in a given situation, that whether it
has caused damage or not, depends upon the jury. To make the defendant liable for his action
15
16
Basic Tort Law: Cases, Statutes, and Problems,By Arthur Best, David W. Barnes, pg – 757
17
http://nuisances.uslegal.com/civil-liability/elements-in-establishing-liability/
under the law of nuisance, the plaintiff must prove that the conduct of the defendant was
unreasonable. So, the onus to prove the guilt on the part of the defendant depends upon the
plaintiff18.
The action of nuisance also depends upon the continuity of the action in a substantial period of
time. But the continuity does not mean that such an act should be habitual.19 A single act which
produces continuing result from an act of nuisance, can also fall under nuisance. Generally, a
nuisance cannot be established unless there is no harm or injury is caused from the act. Although,
the courts have different views regarding the elements which constitute harm or injury. In one
view, to obtain the claim for damages, there should be interference. In other view, damage does
not constitute an essential element of nuisance. So, the concept of nuisance should be read or
viewed as a disturbance of some right or interest in someone’s land which might not involve a
physical invasion on the property of the plaintiff.20
So, the elements of nuisance can be summed up as follows21 :-
1. The interference caused by a person should be substantial. To bring an action under the law of
nuisance, there should be interference with the enjoyment or use of the land by the plaintiff22. An
annoyance is unreasonable where it is caused by a material and to determine what is
unreasonable depends upon the circumstances of each case. For example – smoke and noise
which are clearly considered as a nuisance in residential area might not be considered as a
nuisance in industrial area. Substantial annoyance should be defined in respect of location.23
2. There should be a physical injury or some physical interference. Violation of principle values
alone would not amount to nuisance. The injury caused should be tangible or a discomfort
caused to the plaintiff which is noticeable. The nuisance should also be proximate result of the
injury.24
18 th th
Koll – Irvine Center Property Owners Assn. V. County of Orange, 24 Cal. App. 4 1036 (Cal.App.4 Dist. 1994)
19
Metropolitan Life Ins. Co. V. Moldoff, 187 Misc. 458 (NY App. Term 1946)
20
Supra 13
21
22
Stadler v. Grieben, 61 Wis. 500, 21 N.W 629 (1884).
23
Hasslinger v. Village of Hartland, 234 Wis. 201, 290 N.W 647 (1940).
24
Brown v. Milwaukee Terminal Railway Co., 199 Wis. 575, 224 N.W 748 (1929).
3. The action under the law of nuisance should always be brought by the person who is in
possession of the land where injury is caused.25
4. The injury caused under the law of nuisance should have been caused by the acts of the
defendant.
5. One of the most essential element of the nuisance is that it must involve the idea of continuity
or recurrence. A temporary annoyance can never be considered as nuisance.
6. Lastly, the defendant should owe the responsibility of the act or injury caused. It is because of
this reason, natural conditions or inevitable accidents are not considered as nuisance even after
the amount of annoyance they cause.26 The condition or circumstance should directly correspond
to the acts of the defendant. After it is proved that such circumstance was caused by the acts of
the defendant, liability follows the defendant irrespective of the nature of his acts.
Classification of Nuisance
The concept of Nuisance, broadly talks about two types of nuisance:-
1) Public Nuisance
2) Private Nuisance
The detailed explanation regarding the above mentioned types can be understood as follows:
1) Public Nuisance27
Definition
The meaning of public nuisance under the traditional view can be defined as, ‘’ an act committed
by a person which is not warranted by any law or where he refuses to obey a legal duty imposed
upon him, where the effect of such an act will amount to endanger the life, health or property of
25
Greene v. Nunnemacher, 36 Wis. 50 (1874).
26
Cobb v. Smith, 38 Wis. 21, (1875).
27
lawcommission.justice.gov.uk/.../cp193_Simplification_Public_Nuisance
the public, the person committing such an act will be considered guilty of public nuisance (also
called common nuisance).28
The examples regarding public nuisance can be mentioned as follows:-
i) Causing obstruction in highway.29
ii) Causing blast in the close built-up areas.
iii) By letting a land to be used as a dump, which results in creating a dangerous environment.30
iv) Making fake emergency calls.
v) To obtain popularity by hanging on bridges.
vi) participating in drug or gang activities in urban areas.
vii) Keeping pumas in domestic areas.
The legal effect of public nuisance can be of three types31:
Firstly, any person can sue under the law of tort where he or she has been affected in a level of
degree different from the general or local public.
Secondly, where the person who is responsible for such a public nuisance, had knowledge about
the effects of such public nuisance, he or she will be punishable for a criminal offence.
Thirdly, an injunction can be issued by the attorney general or the local authority under whose
jurisdiction such case falls.
The concept of public nuisance has been extensively criticized by J R Spencer32. In his first
argument, he contended that this offence of public nuisance is very much wide, which makes it
almost impossible to fall under the requirements of a criminal offence. Secondly, he contended
that maximum number of public nuisance have now been covered under specialized statutory
28 th
Archold’s Criminal Pleading, Evidence and Practice,2010 edition, Para 31-40
29
Dymond v Pearce [1972] 1 QB 496.
30
Attorney-General v Tod Heatley [1897] 1 Ch 560.
31
32
“Public Nuisance — a critical examination” [1989] CLJ 55 (hereinafter “Spencer”)
offences. Lastly, he contended that the offense should be abolished because this offense does not
create a physical injury to the public which can be called as an offense.
Current Practice33
At present, the concept of public nuisance can be divided into two types:-
1) Environmental Nuisance: it includes harmful substances or objects and obstructing the

highway.
2) Behavioural Nuisance: it includes behaviours which are considered offensive to the
public
Though there does exist overlapping between the two types. For example – a party full of noise
and dealing in drugs in public, both affect the principles of an area and are illegal per se.
A detailed explanation of the above two types can be discussed as follows :-
1) Environmental nuisance – This type of nuisance is dealt by the local authorities through
the help of statutory powers. Such powers include licensing schemes or enforcement
notices. The strategy which is appointed by the local authorities in dealing with such
offence is by discussing the problem with the person responsible for such offense before
issuing enforcement notice.
This view is based on the strategy appointed by the local authorities regarding the
landlord and consumer product safety cases, which is called compliance strategy. Local
authorities with the help of such strategies applies a variety of measures which consists of
voluntary or informal approach and prosecution measure as a last resort. All these
measures are applied with great discretion by keeping in mind the degree of risk involved
and level of fault. Local authorities also have the power in matters of public nuisance to
go beyond the field of environmental regulation.34
33
Supra 31
34
For example – A licensing authority under section 4(2)(c) the Licensing Authority Act
2003 is required to carry out its functions by keeping in mind the prevention of public
nuisance.
Other enforcement measures adopted by the local authorities includes an injunction

which is brought by the person who got effected or by the Attorney General. The
Attorney General executes the proceedings by allowing the effected person or the local
authority to use his or her name on their behalf.
The local authorities under Section 222 of the Local Government Act 1972 have the
power to execute civil and criminal proceedings in their own name, although the section
does not specifically defines whether in matters of public nuisance or else. By this power,
the local authorities exercise it against the matters of public nuisance like granting
injunctions.35 Although this measure is very rarely appointed by the local authorities.
Such power is exercised by them only in matters where an individual has been
continuously prosecuted under noise nuisance but after that also he or she continues
committing it.36 In other words, the offence of public nuisance is used by local authorities
in cases where there exists some kind of overlapping between environmental and
behavioral types of nuisance.
2) Behavioural Nuisance37 - This kind of nuisance is generally dealt by the police authorities
and the crown prosecution service in the name of common law offence. These kind of
prosecutions in today’s world are frequent, although the offense of public nuisance is
often coupled with statutory offences.
Following are the examples of the public nuisance which are covered by the Crown Prosecution
Service38:-
1) For political protest, climbing on cranes
35
Solihull Council v Maxfern Ltd [1977] 2 All ER 177, [1977] 1 WLR 127.
36
Nottingham City Council v Zain [2001] EWCA Civ 1248, [2002] 1 WLR 607.
37
Supra 34
38
2) Woman harassment, exposure in public
3) Illegal behaviours regarding drugs.

4) Making fake calls to the police regarding false hoaxes.
Alternatives of Public Nuisance39
By looking at the broader view of the concept of public nuisance, it should be noted that most of
instances of public nuisance fall under the law of other offences or statutory provisions. Under
the following heads, we discuss the offences and statutory provisions with which the concept of
public nuisance overlaps.
1) Environmental Nuisance :- under the Environment Protection Act,1990 following are the
matters which overlaps with public nuisance
- By way of authorizations, notices of enforcement or prohibition notices, controlling the
pollution.
- A system of licensing for the disposal of waste.
- Identifying a contaminated land with the help of a system, through notices or penalties
for contravention.
- Lastly, provisions regarding litter or radioactive substances.
2) Statutory Nuisance – matters which include statutory offences are :-

- Any area in a state which is harmful to the health of an individual.
- Any kind of Smoke emitted from a place which can affect the health of other.
- Harmful gases emitted from a premises of a state which is prejudicial to the health of
another.
- Any kind of smell or dust arising from an industrial area which can be harmful to the
health of another.
- Any animal kept in any area of a state which can affect the health of another.
- Any type of insect arising from the premises of any trade, industry or business which can
effect or can be harmful to the health of any individual
39
Ibid.
- Any type of artificial light which arises from an area which can create nuisance or can be
harmful to the interest of an individual
- Any type of noise arising from an area causing nuisance or effecting the health of an
individual
- Anything which is declared by any law as a kind of nuisance or harmful to the health of
an individual.40
Generally, while dealing with the cases under statutory nuisance the procedure which is adopted
by the local authorities includes giving an abatement notice, which it is required to submit
immediately after hearing the offense of nuisance to the person who has committed it. A period
of seven days is also given to the person who has committed nuisance, to deal with the problem.
An individual can himself approach the court of magistrate for an abatement order. Once
abatement order is issued and the party to whom the order is made, fails to comply with it, then
he/she will be called as offender. Although, statutory nuisance is not considered as an offence.41
Section 235 of the Local Government Act 1972 talks about the other procedure which the local
authorities adopt to deal with then statutory nuisance. For example – making byelaws. Under this
heading, the type of nuisances which are covered includes offensive behavior, inconvenient
behavior and environmental nuisances. Currently, breaking a byelaw is an offense to be
prosecuted in the court. To enforce on the spot fines and also to make the mechanism more
efficient, the local government and the department of communities is at present focusing on
making a new procedure which can allow the local authorities to make byelaws in respect of
certain subjects without looking for permission by the Secretary of State.42
Section 222 of the Local Government Act 1972 refers to the powers which are granted to local
authorities, like issuing injunction orders in respect of offences which effect the local residents
and also against the wrongs which may result in nuisance. For example – Trading on Sunday,
breaking the planning law, breaking the orders relating to preservation of trees, breaking the
orders of notices regarding noise abatement, trading in unlicensed streets, unlicensed sex shops,
40
41
Ibid.
42
http://www.communities.gov.uk/publications/localgovernment/byelaws
breaking the standards of trading, breaking the licensing laws and anti-social behavior which
may or may not amount to offense.
Although it should be noted that in statutory offences, power of injunction should be used by the
court as a last resort i.e. enforcement notices, prosecutions etc should be tried and prove
ineffective before resorting for injunction.43 But in case of unlawful trading and building, this is
not a necessary requirement. Injunction can be straightaway granted if not giving it instantly can
result in irreparable damages to the plaintiff.44
3) Behavioural Nuisance45
Offences under this topic includes :-
- Violent disorder under section 2 of The Public Order Act 1986.
- Affray under section 3 of The Public Order Act 1986.
- Illegal behavior under section 4 of The Public Order Act 1986.
- Drunk behavior under section 91 of the Criminal Justice Act,1967.
- Harassment under section 1 of the Protection from Harassment Act 1997.
- Indecent exposure under section 66 of the Sexual offences Act 2003.
- Holding raves in breach of statutory requirements under section 63 of the Criminal
Justice and Public Order Act 1994.
- Bomb Hoaxes under section 51 of the Criminal Law Act 1977
- Sending items purporting to be noxious substances under section 114 of the Anti-
terrorism, Crime and Security Act 2001.
- Sending dangerous or noxious things through the post under section 85 of the Postal
Services Act 2000.
- Poison pen letters under section 1 of the Malicious Communications Act 1988.
Position In Other Countries
Under the states of Australia, except some states who have a codified criminal law, the concept
of nuisance is defined in the same way as in England.46
43
Stoke-on-Trent City Council v B & Q (Retail) Ltd [1984] Ch 1.
44
Encyclopedia of Local Government Law vol 1, notes on Local Government Act 1972 s 222.
45
Under section 145 of the Crimes Act 1961 in New Zealand, Criminal Nuisance is defined as :
(1) Everyone commits criminal nuisance who does any unlawful act or omits to discharge any
legal duty, such act or omission being one which he knew would endanger the lives,
safety, or health of the public, or the life, safety, or health of any individual.
(2) Everyone who commits criminal nuisance is liable to imprisonment for a term not
exceeding 1 year.
Under Section 180 of the Canadian Criminal Court, the word nuisance is defined as follows47 :-
(1) Everyone who commits a common nuisance and thereby

(a) endangers the lives, safety or health of the public, or
(b) causes physical injury to any person, is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years.
(2) For the purposes of this section, every one commits a common nuisance who does an
unlawful act or fails to discharge a legal duty and thereby
(a) endangers the lives, safety, health, property or comfort of the public; or
(b) obstructs the public in the exercise or enjoyment of any right that is common to all the
subjects of Her Majesty in Canada.
Generally, the basic definition of nuisance is similar with the English law, which includes acts
dangerous for the property or effecting public rights or public comfort like highways. Although it
won’t be called a criminal act unless it causes an injury to someone or puts in danger the health,
life or safety of another.
The definition of nuisance under Canadian law is silent regarding the element of fault of the
offence.
46
David Barker, Essential Australian Law (2000) p 123.
47
Supra 45
The concept of public nuisance under United States is similar with the England law. It includes
For example – any offence against public morals or any gang activity in a city etc.
2) Private Nuisance
In private nuisance, it is enough to prove that a person has been affected by the act or omission
of another. Such effect should be related to the use or enjoyment of the land. And to claim under
private nuisance, a person must prove that he or she lives on the property.48
Private nuisance was first defined during 18th century49 in a case 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".50 The damages under private nuisance are recoverable by a
person who have legal interest in the property affected. Except in a case where the Court Of
Appeal observed that a woman have a right to claim injunction for telephone harassment while
living in her mother’s property without having any legal interest in it.51
The Court while hearing a complaint of private nuisance, looks into the following factors52:
- The nature of the neighborhood

- The place where the interference actually happened
- What thing caused such interference
- For how long that interference lasted and whether it is still going on or not
- The time at which such interference occurred
- The kind of impact caused by such interference
- Whether such interference was already existing before entering into the property
- What type of people would think of such interference
48
http://www.lawhandbook.org.au/handbook/ch10s02s02.php
49
http://en.wikipedia.org/wiki/Nuisance_in_English_law#cite_note-18
50
Bamford V Turnley 1860 3 B&S 62
51
Khorasandjian v Bush 1993 QB 727
52
http://www.lawhandbook.org.au/handbook/ch10s02s02.php
Examples under private nuisance includes: Noisy animals, loud air-conditioners, smoke,
overhanging tree branches, roots of tree growing into neighbor’s land, interfering with drainage,
vibrations and dust, aerial spraying of crops and firing guns on a rifle range etc.
Following are the ingredients which should be established to have a claim under private
nuisance53 :-
a) Substantial Interference
It is not necessary for the plaintiff to prove under private nuisance that he has suffered a
particular damage. It is enough to prove that the plaintiff has suffered some form of damage by
the act of the defendant to obtain his claim. Generally, nuisance provides protection to a person
from :
- Interference with the use or enjoyment of land

- Any physical damage to a property
This element of substantial interference can be further divided into two parts :
i) Interference with the use, comfort or enjoyment of land
Interference with the use of land depends on the facts and circumstances of each case.
For example :-
- Due to extreme noise pollution, losing sleep at night54
- Using adjoining property for prostitution55
- As a sex shop56
- Continuous telephone calls57
53
54
Andrea V Selfridge [1937] 3 All ER 255 CA
55
Thompson Schwab V Costaki [1956] 1 All ER 652
56
Laws v Florinplace Ltd [1981] 1 All ER 659
57
Khorasandjian v Bush [1933] QB 727
- Where the plaintiff claimed under High Court to issue an injunction against the defendant
from operating his factory. The allegations by the plaintiff was that the operation of the
factory results in emitting of gases which are harmful for the residents of the area. As the
plaintiff was also affected by such harmful gases, the High court granted injunction by
declaring that private nuisance has been occurred in this case.58
The Courts have also taken into account the cases where the interference leads to emotional
distress.59 Although things which blocks the pleasant view of an individual or a signal from a
television, are not considered part of nuisance. An individual can also be liable for an
interference caused naturally. It is here to be assumed that the individual was aware of that
interference but failed to take reasonable care on time.60
ii) Material or physical damage to land or property61
It should be proved that the damage occurred is substantial in nature and what amounts
substantial interference depends upon the facts and circumstances of each case. In this case,
the defendant’s action resulted in actionable nuisance under law. Here the defendant cannot
take the defense that he took all measures to prevent such nuisance.62
b) Unreasonableness
At present, there is no clear cut definition which explains what amount to unreasonable
interference. It can be caused by substantial interference also as both are interconnected and
forms an essential element of nuisance. The factors which are taken into account as to what
constitutes unreasonableness includes63:
- Any abnormal sensitivity by the plaintiff

Where the property of the plaintiff is prone to damages by the actions of the defendant.
58
Woon Tan Kan & 7 Ors v Asian Rare Earth Sdn Bhd [1992] 4 CLJ 229
59
Thompson Schwab V Costaki [1956] 1 All ER 652
60
Leakey v National Trust [1980] QB 485
61
62
Rapier v London Tramways Co [1893] 2 Ch 588
63
- The nature of the place or area where nuisance took place
The place or locality where such nuisance took place also helps in determining the
unreasonableness of the impact of nuisance caused. Where it is found that the activity is
out of place from the locality, it was held as unreasonable. But where it is found that the
action by the defendant resulted in physical damage to the plaintiff, then it is immaterial
to look for the place of nuisance as a factor in determining the unreasonableness.64
- Time and duration of such interference

Some activities may be reasonable at one time but can’t be at another. For example – In
this case65, filling of the oil tankers at 10 am was held reasonable but at 10 pm it was held
unreasonable.
- The conduct of the defendant66

In this situation, the motive and the reasonableness of the conduct of the defendant are
the main factors through which the unreasonableness of the actions of the defendant can
be determined.
- Benefit to the public by the defendant’s activities67

Where any action by the defendant on one side results in benefit to the public but on the
other side it causes damage to the property of the plaintiff, then an action for private
nuisance can be taken.
- Interference should be continuous

A type of interference which occurs on continuous basis brings out an action for private
nuisance. For example – In this case68, there was continuous nuisance as the roots of the
tree caused damage to the structure of the neighbor’s property.
64
St. Helen’s Smelting Co v Tipping [1865] 11 HL Cas 642
65
Halsey v Esso Petroleum [1961] 2 All ER 145
66
67
68
Delaware Mansions Ltd v Westminster City Council [2001] 4 All ER 737 HL
- Malice
The presence of malice can also make the defendant liable for his acts. For example, In
this case,69 the plaintiff used to take music classes at her house. Defendant, who is the
neighbor in this case, didn’t like the noise of music coming from the classes and in return
he shouted or did acts to disturb the music classes. It was observed by the court that the
defendant intentionally did such acts and an injunction is granted to the plaintiff.
In another case70, the defendant intentionally prevented the flow of water so that the
plaintiff gets less water. It was observed by the court that as the plaintiff is not entitled to
continuous amount of water at his place, the defendant committed no offense and his acts
were lawful.
Issues with private nuisance71
Since 50 years, the criticism of private nuisance has been carried out. For example, no clear-cut
definition of private nuisance has been made yet. At some cases, it has been shown that private
nuisance can only exist where there are two occupiers.72 According to Conor Gearty, the concept
of private nuisance is confused.
69
Christie v Davey [1893] 1 Ch 316
70
Bradford Corporation v Pickles [1895] AC 587 HL
71
72
Sedleigh-Denfield v O’Callaghan [1940] AC 880
Chapter – 2
Global Laws Regulating Nuisance
General laws
Canadian Laws Regulating Nuisance73
Canadian tort law generally focuses on law of tort which falls within the jurisdiction of Canada
except Quebec. In Canadian jurisdiction, the term Tort consists of, ‘’a wrongful act or injury that
causes physical, emotional or financial damage to a person under which another person could be
held legally responsible’’. It is basically judge made law, most of which is copied from English
tort law, which is accompanied by regulatory laws of the provinces like provincial automotive
safety Acts.
Although the origin of Canadian tort law has not only emanated from English Tort law but also
from other evolving areas of law like defamation, nuisance or medical liability through which
Canadian jurisprudence stands on its own. In a tort case, a defendant is called the tortfeasor and
financial compensation is granted to the victim. To determine legal responsibility, every tort
requires proof of fault in order but for different types of tort fault is measured differently.74 There
also exists some criminal code offences in Canada that can also be called as tort law under
common law. However, most of the victims decides not to sue the criminally charged people as it
becomes extremely difficult for the accused to pay the compensation due to financial means.
Nuisance75
The concept of nuisance in Canada refers to causing frustration to someone’s reasonable use of
their property. It can be any type of interference to the plaintiff. For example – playing of loud
music by the defendant or placing obstacles at the entrance of the plaintiff’s house. Nuisance
caused should be unreasonable and substantial.
73
http://en.wikipedia.org/wiki/Canadian_tort_law
74 rd
Foundations of civil and criminal law in Canada(3 Edition), Toronto , Emond Montgomery Publications, pg - 165
75
http://en.wikibooks.org/wiki/Canadian_Tort_Law/Nuisance
Even a tenant of a building can also file a case of nuisance where an interference is caused to
him in his lawful use of the property.
The tort law in Canada is divided into two parts :-
1) Intentional Torts
2) Unintentional Torts
1- Intentional Torts – It means when an individual intends to achieve a particular objective

which results in injury to a person’s right or damage to his property. The intentional acts in
Canada includes the following :-
- Assault76 - a threat caused by one person to another to commit unwanted physical injury.
- Battery – an intentional contact
- False arrest – arresting a person on unreasonable basis
- Nuisance – use of land by the defendant in a way which effects the use of land by the
plaintiff.
- Trespass – defendant taking possession of the plaintiff’s personal property
Ontario has also recognized upon seclusion the existence of tort of invasion of privacy and
intrusion77.Whereas it was observed by the British Columbia that the tort does not exist in that
province.78
2- Unintentional Torts – It occurs because of lack of duty of care by one or some reasonable
foreseeability which resulted in an injury to someone or damage to his/her property. For example
– Negligence. And such Negligence occurs when the following points are not met :
- Duty of care – includes reasonable foreseeability to take care

- Standard of care – an act done by a reasonable person in similar circumstances
- Causation – fault by plaintiff as well as defendant
76 nd
Bruce V Dyer 1966(58) DLR (2 ) 211
77
Jones v Tsige 2012 ONCA 32
78
Ari v Insurance Cooperation of British Columbia 2013 BCSC 1308
- Remoteness – the damage or injury caused, could have been reasonably foreseen at the
time of the incident.
United States Laws Regulating Nuisance79
The tort law in United States falls under common law. It is divided into three parts :-
1 – Intentional torts
2 – Negligence
3 – Strict liability
Explanation
1 – Intentional torts – It consists of a situation in which the defendant had the knowledge that his
act can cause damage to the plaintiff’s property or his legal right.
The main elements of the intentional torts include :-
- Intention
- Act
- Damage
- Cause of the Act
2 – Negligence
In United States, many people believe that they can sue for any type of negligence but this is not
true in most of the US jurisdictions. Negligence is caused by the following factors :-
79
Supra 73
- Breach – causing of breach per se shows that the defendant failed to exercise reasonable
care.
- Violation of statute – this factor also itself shows that violation of a statute would amount
to negligence.
- Violation of a custom – for example a village, where it is a rule that no industry can be
established there for the protection of the environment, then a breach of such a custom
would amount to negligence.
- Res Ipsa Loquitur – It means things speaks for itself. It generally means that the
defendant had total control over the act but due to his negligence, it resulted in damage or
injury to the plaintiff
3 – Strict Liability
This includes such acts by which the defendant will be held responsible for the act even if there
was no negligence on his part. In US, strict liability also applies to copyright infringement and
trademark cases and environmental torts.
Australian Laws Regulating Nuisance
Tort law in Australia consists of the body of precedents. It is a way through which the law can
help in correcting a wrong, which has caused a dispute between two individuals. The term tort in
Australia has not been defined in any statute but has evolved through common law.
Nuisance
Private nuisance – It can arise even if the interference caused is not direct or intentional. To find
out whether the interference caused was unreasonable or not, the courts take into account the
locality and standard of living of the person living in the place where the property is situated or
the level of interference etc.
Public nuisance – In such cases, an action can be taken by the Attorney – General on behalf of
the whole community or also by a person who has suffered damage, which has resulted in
causing damage to the public in general.
The main points of distinction between Australia and UK tort law are :-
1. Australia – Intention is not a necessary element for trespass.80
UK – Intention is an important element for trespass.
2. Australia – Where an act is committed by the defendant unintentionally but directly,

the plaintiff has the option to file a case under negligent trespass or negligence.
UK – The plaintiff here does not have the option to file a case under negligent trespass as
intention is a necessary element in trespass under UK law of tort.
3. Australia – Since 2002, in negligence cases, a method of salient features is used by

them to determine whether the defendant was under a duty of care or not.
UK – It uses a test in determining the duty of care on the part of the defendant which consists of
three stages.
Ireland Laws Regulating Nuisance81
Under Irish law, the source of tort law is based on two bodies :-
1 – Statute Law
2 – Common Law
Tort law there basically tries to balance the interest between the plaintiff and the defendant. It is
not only concerned with justice but also with the level of efficiency. Acts like Personal Injuries
Assessment Board Act 2003 helps in maintaining the tort law by dealing with the offences like
public liability, motor liability and employer liability claims.
Trespass
Main elements of trespass under Irish law are :-
- A voluntary conduct
- A direct interference
- An act which is actionable per se
80
Williams v Milotin (1957) CLR 465
81
https://lawinireland.wordpress.com/tort-law/
- Intentional act
Negligence
It means refraining from doing an act which a reasonable man would do.82
Key elements of negligence under Irish tort law are :-
- Duty of care
- Breach of that duty
- Damage caused to the plaintiff
- Near relation between the act and the injury caused
Irish law where negligence is caused by the police authorities while discharging there
duties like investigating a crime etc.
- In Lockwood v Ireland and the AG and the Commissioner of An Garda Siochana [2010]
IEHC 403, it was observed that no duty of care arises from the police authorities.
- M v Commissioner of An Garda Siochana [2011] IEHC 14, the same conclusion was
made.
Israel Laws Regulating Nuisance83
Tort in Israel is considered as a civil wrong. The plaintiff will be entitled to the civil remedies,
but no remedy will be provided where it is found that the plaintiff was aware of the
circumstances which caused damage to him or his property. A child under 12 years of age will
not be considered capable of understanding the state of affairs which resulted in damage to him
or his property.
Section 7A of the Public Employee Amendment act 2005 provides immunity to a Public
employee against the actions performed by him in fulfillment of the government duty.
82
Blyth v Birmingham Waterworks (1856) 11 EXCH 781
83
Israelinsurancelaw.com
Trespass
Trespass in Israel means an unlawful entry in respect of a immovable property by a person.

Although no compensation will be provided to the plaintiff in a case of trespass unless he himself
has suffered a pecuniary damage. The onus of proving the complaint as false falls on the
defendant.
Nuisance
Public nuisance - in Israel means an unlawful act or omission which endangered the life, health
or comfort of the public.
Private nuisance – means where an individual being the owner of a immovable property, uses his
property in a reasonable manner and interferes with the immovable property of another. And no
compensation will be provided to any person under private nuisance unless he has suffered
damage.
Exception – use of immovable property by an individual under public interest will not be
considered as nuisance even if it causes damage to the property of the neighbor.
Corporate Laws84
Canada
In St. Lawrence Cement Inc. v. Barette [2008] S.C.J. No. 65, Nov. 20,2008
The Supreme Court of Canada observed that a claim can be made under nuisance even if a
company has complied with all the requirements of the environmental laws , the permissions, the
certificates of approval and has exercised due care.
Facts
A truck stop at a restaurant near Gas station on Highway 17 in Ontario was patronized by the
drivers travelling on the highway. A new section of the highway was opened in 2004 by the
Ministry of Transportation, which eliminated the drivers direct access to the truck stop.
84
http://ohsinsider.com/search-by-index/liability/supreme-court-of-canada-clarifies-nuisance-claim-rules
Therefore the owner had no choice but to close the restaurant. He filed a case against the
Ministry for damages as well as for the loss of business and the loss of the properties market
value.
Issue
Whether the owner is entitled for the damages under the law of private nuisance, if the
construction of the highway was not done under statutory authority.
Decision of Court
It was observed by the Supreme Court of Canada that the owner could have had a successful
nuisance claim.
Court’s Reasoning
The Court reviewed that the elements of the nuisance claim are based upon two tests
1) Substantial interference
2) Unreasonable interference
Substantial interference
The court observed that the interference which changes the nature of the owners property forms a
basis for a claim under nuisance. Such interference can not only be in respect of property but can
also be in respect of health or comfort etc.
Unreasonable interference
After substantial interference, the test shifts towards whether such interference was also
unreasonable. The court observed that the reasonableness of the interference should be taken into
account and not the reasonableness of the defendants conduct. There should be balance between
the level of harm caused and the conduct which has caused such nuisance. And to analyze the
level of harm, the courts should take into account the neighbors character and the time of the
interference caused.
United States Laws On Nuisance Under Corporate Laws85
American Electric Power Company v Connecticut, 564,U.S.(2011)
Based on a claim under Public Nuisance, In this case, the Supreme Court of the United States
observed that a case cannot be filed against the corporations for Greenhouse Gas Emissions
under Federal common law as the management of the carbon dioxide and other greenhouse gas
emissions has been delegated to the Environmental Protection Agency by the Clean Air Act.
Issues
- Whether states , cities and private parties have the power to seek emissions caps on
utilities for their alleged contribution to climate change.
- Whether a cause of action can arise under federal common law to regulate the emissions
of carbon dioxide, even though the Clean Air Act delegates the power for the regulation
of greenhouse gas emissions to the EPA
Case Overview
The plaintiffs alleged that the defendant has caused public nuisance by emitting Greenhouse Gas
which contributed towards global warming. He also alleged that the defendants are the five
largest emitters of GHGs in United States, annually emitting 650 million tons of carbon dioxide.
By doing this, the defendant has violated the federal common law of interstate nuisance.
The District Court of New York dismissed both the claims of the plaintiff as non-justiciable
under the political question doctrine. After filing an appeal by the plaintiff, the Second circuit
observed that the lawsuits are not barred and the plaintiff has alleged Article III Standing.
Certiorari was granted by the United States Supreme Court.
Australian Laws Regarding Corporate Nuisance86
Gales Holdings Pty Ltd v Tweed Shire Council 2011 NSWSC 1128
85
http://en.wikipedia.org/wiki/American_Electric_Power_Co._v._Connecticut
86
http://www.mondaq.com/australia
Facts
The plaintiff was the owner of a 27 hectare undeveloped land in kingscliff, New South Wales,
where he was planning to build a shopping centre for many years. While he was planning to
develop the land in 1974, the plaintiff was informed by the members of the dcouncil that some
studies of the flood has to be conducted, which were cleared by the council as a fit land. In 1988,
the council was aware of a cause which could create drainage problem but didn’t informed Gales
about it.
Issue
In 2005, Gales entered into proceedings against the council for causing nuisance, which has
created difficulties in developing the land.
- Whether an unreasonable interference was caused by the increase in the stormwater

runoff to the enjoyment of land by Gales which resulted in an action for nuisance against
the council.
Judgment
On 21 September 2011, Justice Bergin of the Supreme Court of New South Wales observed that
damages should be allowed to the plaintiff for nuisance caused by the mistake of the council.
He also rejected the claims made by the council for giving them immunity under the acts
performed by the government authorities in good faith.
Damages of 600000 Dollars was awarded to the plaintiff to recover the loss sustained by him
since 2004.
Chapter – 3
Indian Laws Regulating Nuisance
General laws Regulating Nuisance In India87
The concept of nuisance in India refers to the interference in respect of a land which is lesser in
character. Such nuisance can be in the form of public or private. Although an action can be taken
in private nuisance always but it’s not the case in public nuisance. In public nuisance, the
plaintiff has to prove that he has suffered a special loss which is different from the harm suffered
by the public in general.88
Rule in Rylands v Fletcher89
Where an individual keeps something on his land which if escaped can cause mischief to others
under the non-natural use of his land, such individual will be liable for the mischief caused to
others by such thing. This rule also imposes strict liability on some areas of nuisance law.
In India, this rule has been put under the rule of absolute liability in which an enterprise is
absolutely liable to pay damages to the people who have suffered harm as a result of the use of a
hazardous activity.90
Public Nuisance
Section 268 defines Public Nuisance as :-
A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which
causes any common injury, danger or annoyance to the public or to the people in general who
dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction,
danger or annoyance to persons who may have occasion to use any public right. A common
nuisance is not excused on the ground that it causes some convenience or advantage.
Concept of Public Nuisance under Civil Procedure Code 1908
87
http://en.wikipedia.org/wiki/Tort_law_in_India#Nuisance
88
Ricket v Metropolitan Ry. Co (1867) LR 2 HL 175
89
1868 LR 3 HL 330
90
Mc Mehta v Union Of India AIR 1987 SC 1086
Section 91 of the Code of Civil Procedure Code 1908 lays down the procedure for filing a case
of civil suit under public nuisance. The section also includes other wrongful acts affecting the
public. Inclusion of this sentence in the section itself increases the scope of it which adds various
circumstances which are not covered by the general definition of the nuisance but do cause
inconvenience to the public.
For Example – Cutting of cattle on the public street or intrusion by the construction of buildings
on the public street are considered as a legal action under the law of public nuisance by virtue of
it being a wrongful act against the public.
Section 91 of the Civil Procedure Code 1908 states that
1. In the case of Public nuisance the Advocate General or two or more persons having obtained
the consent in writing of the Advocate General, may institute a suit, though no special damage
has been caused, for a declaration and injunction or for such other relief as may be appropriate to
the circumstances of the case.
2. Nothing in this section shall be deemed to limit or otherwise affect any right of suit which
may exist independently of its provisions.
According to the General Clauses Act 1897, the definition of nuisance as explained under section
91 of the Civil Procedure Code 1908 has been derived from section 268 of the Indian Penal Code
1860. However, the examples of legalized nuisance are not included within the definition of
nuisance. The concept of legalized nuisance refers to the cases in which nuisance caused was
approved by the statute and was in the interest of the public at large. For example – railway
engines or trains which cause a lot of nuisance in public but no action can be taken against them
as they are approved by the statute.91
Inclusion of Advocate General under clause 1 of Section 91 of Civil Procedure Code 1908 means
that he will initiate the suits of public nuisance by keeping a check on the wrongful acts against
the public at large. After the 1976 Amendment, a provision was included in which two or more
persons can file a suit of public nuisance under section 91 of Civil Procedure Code 1908 after
91
http://www.lawteacher.net/free-law-essays/civil-law/civil-suits-on-public-nuisance.php
taking approval from the Advocate General. The inclusion of Advocate General in the section
also ensures that no party files a suit with malicious intention as he keeps a check on such suits.
Clause 2 of Section 91 provides for a right to file a Public Interest Litigation for the same cause
of action under criminal jurisdiction.
Remedies in cases of Public Nuisance
As public nuisance is an offence which can be civil or criminal, the relief which is granted can be
pecuniary or punitive. The most common remedy which is granted to an individual under public
nuisance is an injunction order. Following are the remedies :-
1) Chapter XIV of the Indian Penal Code deals with sections regarding Criminal
Prosecution which will be applicable on cases of Public Nuisance
Sections 269 to 291 of the Indian Penal Code talks about the punitive remedies with
imprisonment or fine or both. For bringing an action under this chapter, it is not
necessary to prove that every member of the area where nuisance has been caused has
suffered damage, the only thing which is necessary is that the people of the area where
nuisance is caused has suffered damage.
2) Section 133 and 143 of the Criminal Procedure Code deals with the stopping of an act of
nuisance by the orders of the Magistrate.
3) Section 91 of the Civil Procedure Code comes into picture when an action is taken by the
Advocate General or two or more persons with the permission of the court to stop the
public nuisance by an injunction or by some other reasonable and appropriate relief. The
injunction granted under this section is always temporary if the act which has caused
nuisance is continuous one. The act should be such which can damage the public rights in
future.
4) A suit by a private individual where he or she has suffered a special damage.
Public Interest Litigation and Public Nuisance
The concept of Public Interest Litigation has recently gained a lot of importance in respect of
using it as a weapon against the acts of public nuisance which have caused damage to the
environment. In this case92, it was made clear by the court that it becomes the responsibility of
each court to ensure that Public Interest Litigation is not used by any party to gain any private
profit or political advantage or any other act which could affect the interest of the public at large.
A lot of public interest litigations have been filed by the people in respect of the environmental
issues which has caused public nuisance. For example – PIL’s on water and air pollution, river
pollution, noise pollution, management of the hazardous waste and conservation of forest and
wildlife resources.
Even the Supreme Court has never been hesitant in stopping the acts of nuisance like blowing air
horns loudly, bursting fire crackers after 10 p.m. at night which results in affecting the sound
sleep of the people or noise caused by the religious activities at night or any other act which
results in affecting the public welfare.
Corporate Laws Regulating Nuisance In India93
The Tamil Nadu State Marketing v R.M. Shah94
It was observed by the court in this case that no liquor shop by an individual can be opened
within a diameter of 50 meters from the Municipal Corporations and Municipalities and 100
meters in respect of areas of worship or educational institutions. But this does not mean that the
liquor shops opened beyond this diameter have the license to cause nuisance. In measuring the
distance or the area where a liquor shop can be opened depends upon the state authorities as well
as on the facts and circumstances of each case.
In Gaunt v Fynney95, it was observed by the court that in private nuisance, the level of
substantial interference should be such that goes beyond fair controversy. It was also observed
by the court that while determining the level of substantial interference, the facts and
circumstances of each case are also to be considered.
92
SP Gupta v Union Of India 1981
93
http://indiankanoon.org/docfragment/1915322/?formInput=corporate%20cases%20on%20nuisance
94
http://indiankanoon.org/docfragment/225012/?formInput=corporate%20cases%20on%20nuisance
95
1872 (8) Ch App 8, at 11-12
In Eastern & SA Telegraph Co. Cape Town Tramways96 , an individual in a case of Private
nuisance cannot increase the liability of his neighbor by using his property for special purposes
like for business etc.
In Robinson v Kilvertwhere97, there was a dispute between the parties because of overheating of
the cellar below by the defendant which affected the paper business of the plaintiff. Although,
the defendant was not made liable by the court because of over sensitive nature of the business
carried out by the plaintiff.
96
1902 A.C. 381
97
1889 41 Ch. D 88
Chapter - 4
Defenses Against Nuisance
Global Defenses Against Nuisance98
In the beginning, under Common law, there existed only one kind of remedy for an act of
nuisance which is in the form of damages. But with the change in time and with the development
in the courts of equity, injunction came into picture which is provided to the plaintiff against the
defendant for stopping him from repeating an act which has caused nuisance. A level of
punishment was also introduced, which was given to the defendant if he refuses to comply with
the injunction order against him.
The concept of law and economics helped in creating the most suitable and efficient remedy for
an act of nuisance. In Boomer v Atlantic Cement Co.99, a plant of cement interfered with a few
neighbors, due to cost of full injunction which the defendant’s, the New York Court ordered the
owner of the cement plant to purchase the injunction for a specified amount which was
considered as the permanent damages. The court also observed that the permanent damages will
always be considered damages for the future also, once it is made.
Inspector of Nuisances
It is a name of an office in some English – speaking jurisdictions. During Medieval England it

was called as the office Courts Leet and later it was a small office which dealt with the issues of
nuisances on a wide range under common law. Issues like - obstructions of the highway, polluted
wells, adulterated food, smoke, noise, smelly accumulations, eavesdropping, peeping toms, lewd
behavior etc.
During mid 19th Century in United Kingdom, this office also started dealing with the issues of
sanitation and public health and the other types of nuisances were dealt by the local constables.
In 1844, Thomas Fresh of Liverpool was the first Inspector which was appointed by the UK local
authority Health Committee, to deal with the matters of nuisance. Later, Liverpool promoted a
98
http://en.wikipedia.org/wiki/Nuisance#Remedies
99
1970 26 N.Y. 2d 219
private Act called the Liverpool Sanatory Act 1846, which gave a statutory recognition to the
Inspector of Nuisances. This recognition marked as the precedent for later national and local
legislation.
The title of Inspector of Nuisances is regulated by the following Acts which were established by
the local authorities :
- Board of Health under The Public Health Act of 1848

- Towns Improvement Clauses Act of 1847
- Nuisances Removal Act of 1855
- Diseases Prevention Act of 1855
- Metropolis Management Act of 1855
Section 376 of the Ohio Revised Code of United States, explains about the Inspector of
Nuisances who deals with matters which can affect the interest of the public. Such officers also
has the power to investigate the matters relating to nuisance.
General100
Generally, following are the remedies available to a plaintiff from an act of nuisance :-
- Damages
- Injunction or
- Both for separate harms alleged
The above mentioned remedies are generally provided in case of Private Nuisance101 whereas in
case of Public Nuisance the plaintiff can also initiate criminal proceedings against the defendant.
Normally, the cases of nuisance fall within the jurisdiction of the state courts but where it is
found that nuisance falls within the ambit of constitution or federal statutes or case laws, then
such matters of nuisance are determined by the federal courts.102
100
http://nuisances.uslegal.com/remedies-and-procedure
101
McManus v Southern R. Co., 150 N.C. 655 (N.C. 1909)
102 nd
Brown v Wainwright, 392 So. 2 1327 (Fla. 1981)
To demand a claim under the offense of public nuisance, the plaintiff must establish that he has
suffered a special injury which is different from the one suffered by the general public through
such act of nuisance.103
For granting relief in ordinary cases of nuisance, the court adopts a standard of reasonableness to
measure it.104 And in measuring the standard of reasonableness, the courts focus on the level of
harm caused to a neighbor by an activity in a particular locality and circumstances.105
A notice should always be given to a person where the circumstances are such that the person not
only have the knowledge that he has committed nuisance but also he has not created it.106
Although, an action can be taken under nuisance without giving the notice to the person creating
it under the following circumstances :-
- A kind of nuisance which resulted in substantial injury

- Where the nuisance caused resulted in danger to the life or health or to the property of an
individual
- A situation where it becomes necessary to remove nuisance as soon as possible
- Where even after giving a notice to the person causing damage, the landowner did not
stop from committing such nuisance and continues it.
The burden of proving the act of nuisance is on the person who alleges it.107 So, the alleging
party must prove :-
- There existed nuisance

- There was some interference caused by nuisance
- Such interference was caused in respect of use and enjoyment of the property108
103
Brown v Petrolane, Inc., 102 Cal. App 3d 720 ( Cal. App. 2d Dist 1980)
104
Louisville Refining Co. v Mudd, 339 S.W. 2d 181 (Ky. 1960)
105
Bonewitz v Parker, 912 N.E. 2d 378 ( Ind. Ct. App. 2009).
106
Supra 100
107
Capitol Props. Group, LLC v. 1247 Ctr. St., LLC, 283 Mich. App. 422 (Mich. Ct. App. 2009)
108
Young v Weaver , 202 Miss. 291 (Miss. 1947)
It is a general rule that before entertaining any case of nuisance, the courts first look into the
facts and circumstances of each case. In examining the case of nuisance, the courts should keep
the following points in mind :-
- Whether the injury suffered by the plaintiff was in result of the act of the defendant
- Whether the injury or interference caused to the plaintiff is sufficient enough to create an
offense of nuisance
- Whether the plaintiff suffered any loss or damage or not in result of the act of defendant
- Whether the response of the plaintiff towards the act of the defendant was reasonable one
or not
- Whether the nuisance caused is temporary or permanent one
- Whether such kind of nuisance caused is avoidable or not
- Whether such nuisance was caused mistakenly or intentionally
- Whether the defendant caused such nuisance by ignoring the rights of other people or not.
Defenses Under English Law
Following are the types of defenses available under English Law
- Act of God109
- 20 years period – where a private nuisance continuous for a period of 20 years it becomes
legal by prescription, where it is presumed that the defendant could show it as a
continuous activity and claimant was aware of it.
In this case110 the plaintiff who is a doctor, lived next to a business of confectionary. The
vibrations and noises emitted for 20 continuous years from business without causing any
nuisance to the doctor and the plaintiff filed a complain when he build a consulting room
in his garden. It was observed that the nuisance started when the activity started affecting
the plaintiff after building the consulting room and not from the time when the activity
was started.111
109
Nicholas v Marsland 1876 2 Ex D 1
110
Sturges v Bridgman 1879 LR 11 Ch D 852
111
Bermingham 2008 p.238
- Statutory Defense – It comes into picture when an act is authorized by the legislation
itself. It is applicable to both private and public nuisance. It is also applicable in cases of
intra vires acts where the act is not caused in consonance with the statute.
- In Allen v Gulf Oil Refining Ltd112, the defendant in this case was given the authority
through act of parliament to build an oil refinery. Although the act did not gave any
permission to operate it but despite that it came into operation which caused nuisance to
claimant through smell and noise. It was observed by the House of Lords that the
defendant had the statutory authority to operate the refinery, therefore the claimant
cannot success in his claim.
Defenses In Canada113
In Canada, an action cannot be initiated by an individual for seeking remedy under public
nuisance.114
Plaintiff – As Attorney General
In matters of public nuisance, only The Attorney General can bring an action by acting as an
officer of the crown. Such Attorney General can be federal and provincial also which depends
upon the facts and circumstances of the case. The reason behind this of making Attorney General
as the only plaintiff in cases of public nuisance is that he acts as a legal protector of the public
rights which are vested in the crown.115
Private Plaintiffs
In matters of special or peculiar damage, a private individual can bring an action as a plaintiff
under public nuisance even without the consent of the Attorney General.116 Main difference here
112
1981 AC 1001
113
Cirl.ca/files/cirl/alastair_lucas-en.pdf
114
Stein v Gonzales (1984), 14 DLR (4th) 263 (BCSC, McLachlin J).
115
Wilfred Estey, “Public Nuisance and Standing to Sue” (1972) 10 Osgoode Hall LJ
563, 566, 576
116
Hickey v Electric Reduction Co of Canada (1970), 21
DLR (3d) 368 (Nfld SC)
in respect to private nuisance is that no interest on land should be discovered.117 Although ,there
is no clear cut definition to prove yet what constitutes special damage.
Special Damage
In general terms, a special damage is always extraordinary i.e. which is greater than the harm
suffered by the public in general. Justice Brett in 1874, of English Court of Common Pleas
expressed his views regarding the definition of special damage in Benjamin v Storr as follows
- The injury should be particular

- It should be direct and not consequential
- It should be of a substantial character
Statutory Modifications
The Canadian jurisdiction has removed the requirement of proving special damage in many ways
by the statute. The most important provision is Ontario Bill of Rights118 which provided a right
to the individuals to take an action in the following cases :
- Contravention of the environmental law by an individual as defined under the act

- Such breach will cause an harm to Ontario public resource
- The plaintiff has received no reply or response from the authorities after applying for an
investigation of the case under the act
Availability Of Damages
In the beginning, consent of the Attorney General was always needed in matters where public
rights are infringed. Now the injunction has also been regarded as an appropriate public remedy.
Although the Crown can grant injunction or compensation in matters of public nuisance.
117
Hunter v Canary Wharf Ltd, [1997] AC 655 (HL).
118
Ontario Environmental Bill of Rights, SO 1993, c 28, Part VI.
Generally119, an order of injunction stops the defendant or removes the nuisance. In matters of
public nuisance, a fine or imprisonment can be imposed in addition to the abatement or relief of
injunction.
The remedy of injunction is granted in cases where damage is of such a nature which is
irreparable and compensation cannot be regarded as an adequate remedy. The court while
granting injunction examines the interest of the parties affected as well as of the public in
general.
A remedy of Self – Help is available in rare circumstances. It should be exercised after some
reasonable time by learning to know the nature of the nuisance which also requires a notice to be
given to the defendant and failure on his part to act. Although, reasonable force can be used by
the plaintiff for abatement but he can also be liable for causing damage unnecessarily.
For example – where some dead limbs of tree extending dangerously in the land of the neighbor
can be removed by him after giving a reasonable notice to the person who caused such nuisance.
But in cases of emergency like danger to health or life, no notification is required.
Legal Remedies In Private Nuisance120
Standing
For filing a case against a person in matters of private nuisance, the person filing such case
should have a legal right to sue. Individuals whose personal enjoyment of his property is affected
can bring an action. This shows that an interest in the property should be established.
Money Damages
For money compensation, it is not necessary to prove an injury or harm to the enjoyment of the
property has been caused. It is because of this reason, the definition of nuisance consists of
activities by human which are harmful to the senses. This also include a dangerous circumstance
also.
Measurement of Damages
119
http://law.jrank.org/pages/8871/Nuisance-Remedies.html
120
http://www.alllaw.com/articles/nolo/personal-injury/legal-remedies-private-nuisance-case.html
The general principle for calculating damages is compensation for the loss sustained or injury
caused. But where the nuisance is of temporary nature, the calculation of damages and
enjoyment of the land plus the special damages is also taken into consideration. Special damage
includes some reasonable expenses for removing the nuisance, personal discomfort, loss of
business or profit, inconvenience or annoyance etc.
Abatement and Balancing of the Hardships
Besides the money damages, a private nuisance can also be abated by destroying it or removing
it totally. Injunction is considered as the classic method of abating a nuisance. It is basically an
order of the court which requires the parties to do or not to do a specific act. And to obtain
injunction, it is necessary to prove that the plaintiff would suffer irreparable loss if nuisance is
continued.
The concept of Balancing the Hardships here means that if the injunction granted by the court,
results in lesser harm to the plaintiff but greater harm to the defendant, then the court can refuse
to grant injunction and can provide money damages to the suffering party.
Self – Help
Self – Help here means that an individual is allowed to remove the nuisance or destroy it, if he
do it by not breaking the peaceful environment of the area and also by not harming anyone. But a
reasonable notice should be given to the person when the nuisance exists at someone else’s
property.
Remedies In Australia121
Following are the remedies of nuisance in Australia
- Abatement of nuisance – Generally the cost of the abatement is done by the abater in this
case122, it was observed by the court that the defendant may be required to pay for the
cost incurred by the plaintiff, if the steps taken by the plaintiff were the reasonable one.
- Injuction
121
Sydney.edu.au/lec/subjects/torts.ppt
122
Proprietors-Strata Plan No 14198 v Cowell
- Damages
Remedies in Switzerland123
Administrative Remedies124
1. The Administrative System
A case can be filed directly to the Federal Supreme Court when the constitutional right of an
individual is infringed. Although cantons have their own administrative laws to deal with the
matters of nuisance but the decisions taken by the cantonal bodies can be challenged before the
administrative court. In specific problems, special committees of appeal are established to deal
with such specific matters. The federal law also makes it compulsory for the cantons to provide
for the judicial review of the administrative decisions. In some cases, government can also be
considered as superior administrative jurisdiction but where federal law comes into picture, it be
subject to an appeal to the Federal Court.
For example – Article 98(a) of the Federal Judiciary Act, imposes a duty upon the cantons to
establish an administrative court of appeal which should act like the Federal Court. Federal law
would be followed while making an appeal or filing a case before such court.
Right Of Access To Information
It is a constitutional right to the parties by giving them an access against the decisions directed to
them. Under the administrative procedure, the parties are entitled to gain access to all the
information they require by the deciding authority.
General Right To Complain Or Appeal
Article 103 of the Federal Judiciary Act empowers every individual, who has a particular
interest, to bring before the administrative court an administrative decision. This provision only
requires an interest to submit the case on the part of the appellant, it is not necessary that such
interest should be a legal one, a factual interest is enough. And also, the appellant should have
123
Books.google.co.in/books
124
Environmental law in Switzerland by Anne Petitpierre
been affected specifically by the decision i.e. it should be greater than the other members of the
community.
The Legal Criteria for the choice between injunction and damages125
The method appointed by courts while deciding whether to grant injunction or damages is vague
and not satisfactory. The main reason behind this is that it becomes very difficult ,while deciding
whether an act is a nuisance or not , to strike balance between goals in respect of the property
rights and the maximization of the general interest of the society.
Remedies in Philippines126
Remedies against a private nuisance
- A civil action
- Abatement without judicial proceedings
Whoever affected by the private nuisance can abate it by destroying or removing the thing which
consists of such nuisance without breaking the peaceful environment or causing any injury to
anyone.
Indian Defenses Against Nuisance
Remedies for Public Nuisance
1 – Chapter XIV127 talks about the sections relating to the criminal prosecution for those who
commit public nuisance. The sections are as follows :-
‘‘Section 268 – Public nuisance’’
‘’A person is guilty of a public nuisance who does any act or is guilty of an illegal omission
which causes any common injury, danger or annoyance to the public or to the people in general
who dwell or occupy property in the vicinity, or which must necessarily cause injury,
obstruction, danger or annoyance to persons who may have occasion to use any public right.’’
125
Remedies in Contract and Tort by Donald Harris, David Campbell and Roger Halson
126
Philippine Law on Torts and Damages, Volume 2 By J. Cezar S. Sangco
127
Indian Penal Code,1860
‘’A common nuisance is not excused on the ground that it causes some convenience or
advantage’’.
‘’269. Negligent act likely to spread infection of disease dangerous to life’’
‘’Whoever unlawfully or negligently does any act which is, and which he knows or has reason to
believe to be, likely to spread the infection of any disease dangerous to life, shall be punished
with imprisonment of either description for a term which may extend to six months, or with fine,
or with both.’’
‘’270. Malignant act likely to spread infection of disease dangerous to life’’
‘’Whoever malignantly does any act which is, and which he knows or has reason to believe to
be, likely to spread the infection of any disease dangerous to life, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both.’’
‘’271. Disobedience to quarantine rule’’
‘’Whoever knowingly disobeys any rule made and promulgated by the Government for putting
any vessel into a state of quarantine, or for regulating the intercourse of vessels in a state of
quarantine with the shore or with other vessels, or for regulating the intercourse between places
where an infectious disease prevails and other places, shall be punished with imprisonment of
either description for a term which may extend to six months, or with fine, or with both.’’
‘’272. Adulteration of food or drink intended for sale’’
‘’Whoever adulterates any article of food or drink, so as to make such article noxious as food or
drink, intending to sell such article as food or drink, or knowing it to be likely that the same will
be sold as food or drink, shall be punished with imprisonment of either description for a term
which may extend to six months, or with fine which may extend to one thousand rupees, or with
both’’.
‘’273. Sale of noxious food or drink’’
‘’Whoever sells, or offers or exposes for sale, as food or drink, any article which has been
rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason
to believe that the same is noxious as food or drink, shall be punished with imprisonment of
either description for a term which may extend to six months, or with fine which may extend to
one thousand rupees, or with both.’’
‘’274. Adulteration of drugs’’
‘’Whoever adulterates any drug or medical preparation in such a manner as to lessen the efficacy
or change the operation of such drug or medical preparation, or to make it noxious, intending that
it shall be sold or used for, or knowing it to be likely that it will be sold or used for, any medical
purpose, as if it had not undergone such adulteration, shall be punished with imprisonment of
‘’275. Sale of adulterated drugs’’
‘’Whoever, knowing any drug or medical preparation to have been adulterated in such a manner
as to lessen its efficacy, to change its operation, or to render it noxious, sells the same, or offers
or exposes it for sale, or issues it from any dispensary for medicinal purposes as unadulterated, or
causes it to be used for medicinal purposes by any person not knowing of the adulteration, shall
be punished with imprisonment of either description for a term which may extend to six months,
or with fine which may extend to one thousand rupees, or with both.’’
‘’276. Sale of drug as a different drug or preparation’’
‘’Whoever knowingly sells, or offers or exposes for sale, or issues from a dispensary for
medicinal purposes, any drug or medical preparation, as a different drug or medical preparation,
shall be punished with imprisonment of either description for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with both.’’
‘’277. Fouling water of public spring or reservoir’’
‘’Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to
render it less fit for the purpose for which it is ordinarily used, shall be punished with
imprisonment of either description for a term which may extend to three months, or with fine
which may extend to five hundred rupees, or with both.’’
‘’278. Making atmosphere noxious to health’’
‘’Whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health
of persons is general dwelling or carrying on business in the neighborhood or passing along a
public way, shall be punished with fine which may extend to five hundred rupees.’’
‘‘279. Rash driving or riding on a public way’’
‘’Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to
endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished
with imprisonment of either description for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both.’’
‘’280. Rash navigation of vessel’’
‘’Whoever navigates any vessel in a manner so rash or negligent as to endanger human life, or to
be likely to cause hurt or injury to any other person, shall be punished with imprisonment of
‘’281. Exhibition of false light, mark or buoy’’
‘’Whoever exhibits any false light, mark or buoy, intending or knowing it to be likely that such
exhibition will mislead any navigator, shall be punished with imprisonment of either description
for a term which may extend to seven years, or with fine, or with both.’’
‘’282. Conveying person by water for hire in unsafe or overloaded vessel’’
‘’Whoever knowingly or negligently conveys, or causes to be conveyed for hire, any person by
water in any vessel, when that vessel is in such a state or as loaded as to endanger the life of that
person, shall be punished with imprisonment of either description for a term which may extend
to six months, or with fine which may extend to one thousand rupees, or with both.’’
‘’283. Danger or obstruction in public way or line of navigation’’
‘’Whoever, by doing any act, or by omitting to take order with any property in his possession or
under his charge, causes danger, obstruction or injury to any person in any public way or public
line of navigation, shall be punished with fine which may extend to two hundred rupees.’’
‘’284. Negligent conduct with respect to poisonous substance’’
‘’Whoever does, with any poisonous substance, any act in a manner so rash or negligent as to
endanger human life, or to be likely to cause hurt or injury to any person, or knowingly or
negligently omits to take such order with any poisonous substance in his possession as is
sufficient to guard against any probable danger to human life from such poisonous
substance,shall be punished with imprisonment of either description for a term which may extend
to six months, or with fine which may extend to one thousand rupees, or with both.’’
‘’285. Negligent conduct with respect to fire or combustible matter’’
‘’Whoever does, with fire or any combustible matter, any act so rashly or negligently as to
endanger human life, or to be likely to cause hurt or injury to any other person,or knowingly or
negligently omits to take such order with any fire or any combustible matter in his possession as
is sufficient to guard against any probable danger to human life from such fire or combustible
matter,shall be punished with imprisonment of either description for a term which may extend to
six months, or with fine which may extend to one thousand rupees, or with both.’’
‘’286. Negligent conduct with respect to explosive substance’’
‘’Whoever does, with any explosive substance, any act so rashly or negligently as to endanger
human life, or to be likely to cause hurt or injury to any other person, or knowingly or
negligently omits to take such order with any explosive substance in his possession as is
sufficient to guard against an probable danger to human life from that substance, shall be
punished with imprisonment of either description for a term which may extend to six months, or
with fine which may extend to one thousand rupees, or with both.’’
‘’287. Negligent conduct with respect to machinery’’
‘’Whoever does, with any machinery, any act so rashly or negligently as to endanger human life,
or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to
take such order with any machinery in his possession or under his care as is sufficient to guard
against any probable danger to human life from such machinery, shall be punished with
imprisonment of either description for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both.’’
‘’288. Negligent conduct with respect to pulling down or repairing buildings’’
‘’Whoever, in pulling down or repairing any building, knowingly or negligently omits to take
such order with that building as is sufficient to guard against any probable danger to human life
from the fall of that building, or of any part thereof, shall be punished with imprisonment of
‘’289. Negligent conduct with respect to animal’’
‘’Whoever knowingly or negligently omits to take such order with any animal in his possession
as is sufficient to guard against any probable danger to human life, or any probable danger of
grievous hurt from such animal, shall be punished with imprisonment of either description for a
term which may extend to six months, or with fine which may extend to one thousand rupees, or
with both.’’
‘’290. Punishment for public nuisance in cases not otherwise provided for’’
‘’Whoever commits a public nuisance in any case not otherwise punishable by this Code, shall
be punished with fine which may extend to two hundred rupees.’’
‘’291. Continuance of nuisance after injunction to discontinue’’
‘’Whoever repeats or continues a public nuisance, having been enjoined by any public servant
who has lawful authority to issue such injunction not to repeat or continue such nuisance, shall
be punished with simple imprisonment for a term which may extend to six months, or with fine,
or with both.’’
‘’292. Sale, etc., of obscene books, etc.’’
‘’(1) For the purposes of subsection (2), a book, pamphlet, paper, writing, drawing, painting,
representation, figure or any other object, shall be deemed to be obscene if it is lascivious or
appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items)
the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt
person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter
contained or embodied in it.’’
‘’(2) Whoever-
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation,
or for purposes of sale, hire, distribution, public exhibition or circulation, makes,
produces or has in his possession any obscene book, pamphlet, paper, drawing, painting,
representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or
knowing or having reason to believe that such object will be sold, let to hire, distributed
or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or
has reason to believe that any such obscene objects are for any of the purposes aforesaid,
made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in
any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is
ready to engage in any act which is an offence under this section, or that any such
obscene object can be procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this section,
shall be punished on first conviction with imprisonment of either description for a term which
may extend to two years, and with fine which may extend to two thousand rupees, and, in the
event of a second or subsequent conviction, with imprisonment of either description for a term
which may extend to five years, and also with fine which may extend to five thousand rupees.’’
‘’Exception- This section does not extend to-
(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure-
(i) the publication of which is proved to be justified as being for the public good on the
ground that such book, pamphlet, paper, writing, drawing, painting, representation or
figure is in the interest of science, literature, art of learning or other objects of general
concern, or
(ii) which is kept or used bona fide for religious purposes;

(b) any representation sculptured, engraved, painted or otherwise represented on or in-
(i) any ancient monument within the meaning of the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 (24 of 1958), or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any
religious purpose.’’
‘’292A. Printing, etc., of grossly indecent or scurrilous matter or matter intended for
blackmail’’
‘’Whoever,-
(a) prints or causes to be printed in any newspaper, periodical or circular, or exhibits or causes to
be exhibited, to public view or distributes or causes to be distributed or in any manner puts into
circulation any picture or any printed or written document which is grossly indecent, or in
scurrilous or intended for blackmail; or
(b) sells or lets for hire, or for purposes of sale or hire makes, produces or has in his possession,
any picture or any printed or written document which is grossly indecent or is scurrilous or
intended for blackmail; or
(c) conveys any picture or any printed or written document which is grossly indecent or is
scurrilous or intended for blackmail knowing or having reason to believe that such picture or
document will be printed, sold, let for hire distributed or publicly exhibited or in any manner put
into circulation; or
(d) takes part in, or receives profits from, any business in the course of which he knows or has
reason to believe that any such newspaper, periodical, circular, picture or other printed or written
document is printed, exhibited, distributed, circulated, sold. let for hire, made, produced, kept,
conveyed or purchased.. or
(e) advertises or makes known by any means whatsoever that any person is engaged or is ready
to engage in any Act which is an offence under this section, or that any such newspaper,
periodical, circular, picture or other printed or written document which is grossly indecent or is
scurrilous or intended for blackmail, can be procured from or through any person; or
(f) offers or attempts to do any act which is an offence under this section [shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both]’’
‘’Provided that for a second or any subsequent offence under this section, he shall be punished
with imprisonment of either description for a term which shall not be less than six months [and
not more than two years]’’.
‘’Explanation 1- For the purposes of this section, the word scurrilous shall be deemed to include
any matter which is likely to be injurious to morality or is calculated to injure any person’’:
‘’Provided that it is not scurrilous to express in good faith anything whatever respecting the
conduct of-
(i) a public servant in the discharge of his public functions or respecting his character so
far as his character appears in that conduct and no further: or
(ii) any person touching any public question, and respecting his character, so far as his
character appears in that conduct and no further.’’
‘’Explanation II- In deciding whether any person has committed an offence under this section,
the court shall have regard inter alia, to the following considerations-
(a) The general character of the person charged, and where relevant the nature of his business;
(b) the general character and dominant effect of the matter alleged to be grossly indecent or.
scurrilous or intended for blackmail;
(c) any evidence offered or called by or on behalf of the accused person as to his intention in
committing any of the acts specified in this section.’’
‘’293. Sale, etc., of obscene objects to young person’’
‘’Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of
twenty years any such obscene object as is referred to in the last preceding section, or offers or
attempts so to do, shall be punished on first conviction with imprisonment of either description
for a term which may extend to three years, and with fine which may extend to two thousand
rupees, and, in the event of a second or subsequent conviction, with imprisonment of either
description for a term which may extend to seven years, and also with fine which may extend to
five thousand rupees.’’
‘’294. Obscene acts and songs’’
‘’Whoever, to the annoyance of others-
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be
punished with imprisonment of either description for a term which may extend to three months,
or with fine, or with both.’’
‘’294A. Keeping lottery office’’
‘’Whoever keeps any office or place for the purpose of drawing any lottery not being a State
lottery] or a lottery authorized by the State Government, shall be punished with imprisonment of
either description for a term which may extend to six months, or with fine, or with both.’’
‘‘And whoever publishes any proposal to pay any sum, or to deliver any goods, or to do or
forbear doing anything for the benefit of any person, on any event or contingency relative or
applicable to the drawing of any ticket, lot, number or figure in any such lottery, shall be
punished with fine which may extend to one thousand rupees.’’
‘’2 – Section 133 to 144 of the Criminal Procedure Code 1973 deals with the stopping of an act
of nuisance by the orders of the Magistrate.’’
‘’133. Conditional order for removal of nuisance’’
‘’(1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive

Magistrate specially empowered in this behalf by the State Government on receiving the report
of a police officer or other information and on taking such evidence (if any) as he thinks fit,
considers.-
(a) that any unlawful obstruction or nuisance should be removed from any public place or from
any way, river or channel which is or may be lawfully used by the public; or
(b) that the conduct of any trade or occupation or the keeping of any goods or merchandise; is
injurious to the health or physical comfort of the community, and that in consequence such trade
or occupation should be prohibited or regulated or such goods or merchandise should be
removed or the keeping thereof regulated: or
(c) that the construction of any building, or the disposal of any substance, as is likely to occasion
conflagration or explosion, should be prevented or stopped; or
(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and
thereby cause injury to persons living or carrying on business in the neighbourhood or passing
by, and that in consequence the removal, repair or support of such building, tent or structure, or
the removal or support of such tree, is necessary; or
(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in
such manner as to prevent danger arising to the public; or
(f) that any dangerous animal should be destroyed, confined or otherwise disposed of,such
Magistrate may make a conditional order requiring the person causing such obstruction or
nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or
owning, possessing or controlling such building, tent, structure, substance, lank, well or
excavation, or owning or possessing such animal or tree, within a time to be fixed in the order-
(i) to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such
trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof
in such manner as may be directed; or
(iii) to prevent or stop the construction of such building, or to alter the disposal of such
substance; or
(iv) to remove, repair or support such building, tent or structure, or to remove or support such
trees; or
(v) to fence such tank, well or excavation; or
(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said
order; or, if he objects so to do, to appear before himself or some other Executive Magistrate
subordinate to him at a time and place to be fixed by the order, and show cause, in the manner
hereinafter provided, why the order should not be made absolute.’’
‘’(2) No order duly made by a Magistrate under this section shall be called in question in any
civil Court.’’
‘’Explanation.-A "public place" includes also property belonging to the State, camping grounds
and grounds left unoccupied for sanitary or recreative purposes.’’
‘’134. Service or notification of order’’
‘’(1) The order shall, if practicable, be served on the person against whom it is made, in the
manner herein provided for service of a summons.’’
‘’(2) If such order cannot be so served, it shall be notified by proclamation, published in such
manner as the State Government may, by rules, direct, and a copy thereof shall be stuck up at
such place or places as may be fittest for conveying the information to such person.’’
‘’135. Person to whom order is addressed to obey or show cause ‘’

‘’The person against whom such order is made shall—
(a) perform, within the time and in the manner specified in the order, the act directed thereby; or
(b) appear in accordance with such order and show cause against the same’’
‘’136. Consequences of his failing to do so‘’
‘’If such person does not perform such act or appear and show cause, he shall be liable to the
penalty prescribed in that behalf in section 188 of the Indian Penal Code (45 of 1860,) and the
order shall be made absolute.’’
‘’137. Procedure where existence of public right is denied’’
‘’(1) Where an order is made under section 113 for the purpose of preventing obstruction,
nuisance or danger to the public in the use of any way river, channel or place, the Magistrate
shall, on the appearance before him of the person against whom the order was made, question
him as to whether he denies the existence of any public right in respect of the way, river, channel
or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire
into the matter.’’
‘’(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such
denial, he shall stay the proceedings until the matter of the existence of such right has been
decided by a competent Court; and if he finds that there is no such evidence, he shall proceed as
laid down in section 138.’’
‘’(3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to
deny the existence of a public right of the nature therein referred to, or who, having made such
denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent
proceedings be permitted to make any such denial.’’
‘’138. Procedure where he appears to show cause’’
‘’(1) If the person against whom an order under section 133 is made appears and shows cause
against the order, the Magistrate shall take evidence in the matter as in a summons-case.’’
‘’(2) If the Magistrate is satisfied that the order, either as originally made or subject to such
modification as he considers necessary, is reasonable and proper, the order shall be made
absolute without modification or, as the case may be, with such modification.’’
‘’(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.’’
‘’139. Power of Magistrate to direct local investigation and examination of an expert’’
‘’The Magistrate may, for the purposes of an inquiry under section 137 or section 138—
(a) direct a local investigation to be made by such person as he thinks fit; or
(b) summon and examine an expert.’’
‘’140. Power of Magistrate to furnish written instructions, etc’’
‘’(1) Where the Magistrate directs a local investigation by any person under section 139, the
Magistrate may—
(a) furnish such person with such written instruction as may seem necessary for his guidance;
(b) declare by whom the whole or any part of the necessary expenses of the local investigation
shall be paid.’’
‘’(2) The report of such person may be read as evidence in the case.’’
‘’(3) Where the Magistrate summons and examines an expert under section 139, the Magistrate
may direct by whom the costs of such summoning and examination shall be paid.’’
‘’141. Procedure on order being made absolute and consequences of disobedience’’
‘’(1) When an order has been made absolute under section 136 or section 138, the Magistrate
shall give notice of the same to the person against whom the order was made, and shall further
require him to perform the act directed by the order within a time to be fixed in the notice, and
inform him that, in case of disobedience, he will be liable to the penalty provided by section 188
of the Indian Penal Code (45 of 1860).’’
‘’(2) If such act is not performed within the time fixed, the Magistrate may cause it to be
performed, and may recover the costs of performing it, either by the sale of any building, goods
or other property removed by his order, or by the distress and sale of any other movable property
of such person within or without such Magistrate's local jurisdiction and if such other property is
without such jurisdiction, the order shall authorise its attachment and sale when endorsed by the
Magistrate within whose local jurisdiction the property to be attached is found.’’
‘’(3) No suit shall lie in respect of anything done in good faith under this section.’’
‘’142. Injunction pending inquiry’’
‘’(1) If a Magistrate making an order under section 133 considers that immediate measures
should be taken to prevent imminent danger or injury of a serious kind to the public, he may
issue such an injunction to the person against whom the order was made, as is required to obviate
or prevent such danger or injury pending the determination of the matter.’’
‘’(2) In default of such person forthwith obeying such injunction, the Magistrate may himself
use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such
injury.’’
‘’(3) No suit shall lie in respect of anything done in good faith by a Magistrate under this
section.’’
‘’143. Magistrate may prohibit repetition or continuance of public nuisance’’
‘’A District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate

empowered by the Stale Government or the District Magistrate in this behalf, may order any
person not to repeat or continue a public nuisance, as defined in the Indian Penal Code (45 of
1860), or any special or local law.’’
‘’144. Power to issue order in urgent cases of nuisance or apprehended danger’’

‘’(1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any
other Executive Magistrate specially empowered by the State Government in this behalf, there is
sufficient ground for proceeding under this section and immediate prevention or speedy remedy
is desirable, such Magistrate may, by a written order stating the material facts of the case and
served in the manner provided by section 134, direct any person to abstain from a certain act or
to take certain order with respect to certain property in his possession or under his management,
if such Magistrate considers that such direction is likely to prevent, or tends to prevent,
obstruction, annoyance or injury to any person lawfully employed, or danger to human life,
health or safely, or a disturbance of the public tranquility, or a riot, or an affray.’’
‘’(2) An order under this section may, in cases of emergency or in cases where the circumstances
do not admit of the serving in due lime of a notice upon the person against whom the order is
directed, be passed ex parte.’’
‘’(3) An order under this section may be directed to a particular individual, or to persons residing
in a particular place or area, or to the public generally when frequenting or visiting a particular
place or area.’’
‘’(4) No order under this section shall remain in force for more than two months from the
making thereof:’’
‘’Provided that, if the State Government considers it necessary so to do for preventing danger to
human life, health or safety or for preventing a riot or any affray, it may, by notification, direct
that an order made by a Magistrate under this section shall remain in force for such further
period not exceeding six months from the date on which the order made by the Magistrate would
have, but for such order, expired, as it may specify in the said notification.’’
‘’(5) Any Magistrate may, either on his own motion or on the application of any person
aggrieved, rescind or alter any order made under this section, by himself or any Magistrate
subordinate to him or by his predecessor-in-office.’’
‘’(6) The State Government may, either on its own motion or on the application of any person
aggrieved, rescind or alter any order made by it under the proviso to sub¬section (4).’’
‘’(7) Where an application under sub-section (5), or sub-section (6) is received, the Magistrate,
or the State Government, as the case may be, shall afford to the applicant an early opportunity of
appearing before him or it, either in person or by pleader and showing cause against the order,
and if the Magistrate or the State Government, as the case may be, rejects the application wholly
or in part, he or it shall record in writing the reasons for so doing.’’
‘’144A. Power to prohibit carrying arms in procession or mass drill or mass training with
arms’’
‘‘(1) The District Magistrate may, whenever he considers it necessary so to do for the
preservation of public peace or public safety or for the maintenance of public order, by public
notice or by order, prohibit in any area within the local limits of his jurisdiction, the carrying of
arms in any procession or the organising or holding of, or taking part in, any mass drill or mass
training with arms in any public place.’’
‘’(2) A public notice issued or an order made under this section may be directed to a particular
person or to persons belonging to any community, party or organisation.’’
‘’(3) No public notice issued or an order made under this section shall remain in force for more
than three months from the date on which it is issued or made.’’
‘’(4) The State Government may, if it considers necessary so to do for the preservation of public
peace or public safety or for the maintenance of public order, by notification, direct that a public
notice issued or order made by the District Magistrate under this section shall remain in force for
such further period not exceeding six months from the date on which such public notice or order
was issued or made by the District Magistrate would have, but for such direction, expired, as it
may specify in the said notification.’’
‘’(5) The State Government may, subject to such control and directions as it may deem fit to
impose, by general or special order, delegate its powers under sub-section (4) to the District
Magistrate.’’
Chapter – 5
Leading Case Laws
Union Carbide Corporation V. Union Of India [1991] INSC 252128
Introduction
The Bhopal Gas Tragedy was considered as the worst industrial disaster in the world which is
related to the leaking of harmful gas. The incident happened at the Union Carbide India Limited
(UCIL) pesticide plant during the night of 2-3rd December 1984 in Bhopal, Madhya Pradesh. The
number of people which were affected by the dangerous gas were estimated around 500000.
Nearby towns and areas were deeply affected by the toxic gas.
The number people died were 2259 in the official immediate death toll. Over 3787 people were
declared dead by the Madhya Pradesh government related to gas release. It was argued by the
Indian government that the lack of management and maintenance are the main reasons which
resulted in making the routine pipe maintenance cause backflow of water into a MIC(methyl
isocyanate) tank creating the disaster.
In the District Court of Bhopal, India civil and criminal cases were registered including UCC and
Warren Anderson who was UCC CEO during disaster, for causing public nuisance at large.
The Pre – event period
In 1969, the factory of Union Carbide India Limited was established to produce pesticide. During
1980’s the demand of pesticides was reduced a lot but the production of it was continued which
resulted in stores of it.
Some Early Leaks
A complaint regarding the pollution within the plant was lodged by two trade unions in 1976.
Later, in 1981 an employee by mistake inhaled a large amount of phosgene gas which caused his
128
http://en.wikipedia.org/wiki/Bhopal_disaster
death after 72 hours of inhaling it. Even after being warned by the local Indian authorities in
1979, the company failed to take appropriate steps at that time.
The Release
It was discovered that most of the safety functions were not working properly or were not in a
good condition during November 1984. It should be noted that the tank was storing the harmful
gases more then the safety rules allowed. During the night of 2-3 December 1984, water level
entered the side pipe causing a runaway reaction and releasing huge toxic gases in the form of a
cloud over the southeasterly direction of Bhopal.
Critical analysis of the Concept of Nuisance
In nuisance, the reasonableness of an act generally depends on the fact that there exists a
neighbor. However, the definition of reasonableness of one neighbor differs from another. For
example, residents of south beach of Goa would prefer a better standard of comfort in their
neighborhood and in comparison to poorer residents who live in normal areas where the standard
of comfort is low will themselves assume it129.
Public Nuisance – Criticism130
Arguments that support for the abolishment of the public nuisance are as follows :-
- Vague definition
- Failing to comply with the constitutional requirements of the Rule of Law
- Failing to comply with the European Convention of Human Rights
Overlapping
It should be noted that the offence of public nuisance is slowly becoming unnecessary as
maximum acts are covered by the statutory offences. This has been discovered by the House of
Lords.
129
scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=3402
130
Chapter - 6
Conclusion and Suggestions
Conclusion
- The law related to nuisance is generally uncodified. But it has increased its scope through
judgments and interpretations.
- The concept of nuisance generally occurs in a person’s day to day life and the decision is
made on the basis of facts and circumstances. It also becomes the duty of the court to
compensate the aggrieved plaintiff and make sure that the defendant does not get
punished unfairly.
- The courts of India have borrowed from the principles of English and also from the
decisions of the common law system in the matters regarding the law of nuisance. This
has also resulted to the Indian courts in developing their own precedents. And this
resulted in developing a sound system of law which promises quality and well being for
everyone. i.e. the society and the parties in a large scale.
- In the concept of private nuisance, the plaintiff usually seek for the remedy of injunction
against the defendant instead of damages. The reason behind seeking directly the
injunction refers to the granting him a chance to go back straightly in the enjoyment of
peaceful and free environment of his property which was available to him before the
defendant showed his non-acceptable behavior.
Suggestions
- It should be noted that the courts have extreme discretionary power to grant injunction to
the plaintiff on the basis of facts and circumstances of the case. It may also reject it. For
example – In Hunter v. Canary Wharf Limited131, the courts refused to grant damages to
the plaintiff as the construction of a house by the defendant was interrupting with the
131
1997 All ER 426
signals of the plaintiffs television, which shows that the decision of the courts was
justified.
- The cases regarding private nuisance generally raise questions of fact rather then the
question of law. So it becomes difficult to make adequate form of remedy for such
grievances.
- The law of private nuisance focuses on protecting the interest of the people. It also takes
into consideration the settlement of the disputes between the adjacent landowners.
- It helps and maintains balance between the right of one person in respect of use of his
land in whatever way he wish to use it and not to be interfere with the right of the
neighbor.
- The law of private nuisance consist of private nuisance which if proven then the plaintiff
can sue the defendant for causing nuisance or even interfering with the land of the
plaintiff.132
- To succeed in a claim of private nuisance, the plaintiff must prove that the interference
caused is significant and is unreasonable irrespective of the harm alleged. To prove an
unreasonable interference, the plaintiff must take into account all the factors which will
be necessary to prove the level of unreasonableness in the eyes of the court. The plaintiff
should also render evidence in support of his arguments.133
- Public nuisance134 on the other hand was never considered as a tort in the beginning. It
was first regarded as the public action which was totally under the control of the
legislature.
- While public nuisance has clearly emerged from its criminal law beginnings to offer a
tort with potential for remedying environmental harm, it remains an imperfect instrument,
inconsistent and even irrational in its operation.135
- It should be considered that the concept of public nuisance has some advantage over the
private nuisance in some group actions but there are conflicting views from the judiciary.
132
http://www.lawteacher.net/free-law-essays/land-law/private-nuisance.php
133
http://www.beament.com/index.php/private-nuisance/
134
http://www.law.harvard.edu/programs/about/privatelaw/is.pub.nuisance.tort.merrill.pdf
135
- Generally, the main arguments which defeat claims of public nuisance goes beyond the
law of traditional public nuisance. The courts mostly rely upon the current legislative
solutions in matters of climate change and firearms. The concept of making new remedies
which affects the entire community deters the judicial action.136
- Mostly in matters of public nuisance, the defendants are neither identifiable nor they can
abate it in matters of small contributors.
- It should also be noted that the concept of public nuisance has been overshadowed by the
tort of negligence except in some limited extent and no longer exist as a useful weapon
for the plaintiffs personal injury. The Supreme Court of Alberta in 1976 explained that it
does not consider public nuisance an offence under the purview of the motor vehicle
accident. Although the concept of public nuisance was recognized by the Supreme Court
of Canada in Ryan v. Victoria and observed that the essentials of fault and forceability
are now essential elements of public nuisance.137
- Under English law, the Supreme Court of California has repeatedly insisted that public
nuisance consists of some specific issues which affects the specific properties. By
keeping in mind the legal history of the State’s, the Supreme Court of California while
applying the concept of public nuisance made a commitment to supremacy of the statute
while interpreting it.
- While dealing with the matter of public nuisance, the properties which are affected
should be clearly delineated before the offence of public nuisance is declared judicially
and such conduct should be explained by the standards of legislation, not alone by the
creativity of common law.
- The punishment for public nuisance should be severe i.e. minimum 2 years
- Proper implementation of punishment within specific time period
- 20 years period of private nuisance should not exist
- Public Nuisance should be considered a criminal offense as it affects a large number of
people at once
- Approval of Advocate General in matters of public nuisance should not be required as it
can slow down the procedure
136
http://www.mondaq.com/unitedstates/x/201556/Public+Order/Cooling+Off+Public+Nuisance+Claims
137
bottomlineresearch.ca/articles/articles/pdf/public_nuisance.pdf
- Conviction of ex-employees in union carbide case is misleading
Table Of Cases
A
- Attorney-General v Tod Heatley [1897] 1 Ch 560

- Andrea V Selfridge [1937] 3 All ER 255 CA
- Ari v Insurance Cooperation of British Columbia 2013 BCSC 1308
- Brown v. Milwaukee Terminal Railway Co., 199 Wis. 575, 224 N.W 748 (1929)
- Bamford V Turnley 1860 3 B&S 62
- Bradford Corporation v Pickles [1895] AC 587 HL
- Bruce V Dyer 1966(58) DLR (2nd) 211
- Blyth v Birmingham Waterworks (1856) 11 EXCH 781
- Brown v Wainwright, 392 So. 2nd 1327 (Fla. 1981)
- Brown v Petrolane, Inc., 102 Cal. App 3d 720 ( Cal. App. 2d Dist 1980)
- Bonewitz v Parker, 912 N.E. 2d 378 ( Ind. Ct. App. 2009)
- Cobb v. Smith, 38 Wis. 21, (1875)

- Christie v Davey [1893] 1 Ch 316
- Dymond v Pearce [1972] 1 QB 496

- Delaware Mansions Ltd v Westminster City Council [2001] 4 All ER 737 HL
- Greene v. Nunnemacher, 36 Wis. 50 (1874)
- Hasslinger v. Village of Hartland, 234 Wis. 201, 290 N.W 647 (1940)
- Halsey v Esso Petroleum [1961] 2 All ER 145
- Hickey v Electric Reduction Co of Canada (1970), 21DLR (3d) 368 (Nfld SC)
- Hunter v Canary Wharf Ltd, [1997] AC 655 (HL)
J
- Jones v Tsige 2012 ONCA 32
K
- Khorasandjian v Bush 1993 QB 727
- Khorasandjian v Bush [1933] QB 727
L
- Laws v Florinplace Ltd [1981] 1 All ER 659
- Leakey v National Trust [1980] QB 485
- Louisville Refining Co. v Mudd, 339 S.W. 2d 181 (Ky. 1960)
- Metropolitan Life Ins. Co. V. Moldoff, 187 Misc. 458

- Mc Mehta v Union Of India AIR 1987 SC 1086
- McManus v Southern R. Co., 150 N.C. 655 (N.C. 1909)
- Nottingham City Council v Zain [2001] EWCA Civ 1248, [2002] 1 WLR 607
- Rapier v London Tramways Co [1893] 2 Ch 588
- Ricket v Metropolitan Ry. Co (1867) LR 2 HL 175
- Seong Fatt Sawmills Sdn Bhd V Dunlop Malaysia Industries Sdn Bhd[1984] 1 MLJ 286
FC
- Stadler v. Grieben, 61 Wis. 500, 21 N.W 629
- Solihull Council v Maxfern Ltd [1977] 2 All ER 177, [1977] 1 WLR
- Stoke-on-Trent City Council v B & Q (Retail) Ltd [1984]
- St. Helen’s Smelting Co v Tipping [1865] 11 HL Cas 642
- Sedleigh-Denfield v O’Callaghan [1940] AC 880
- Sturges v Bridgman 1879 LR 11 Ch D 852
- Stein v Gonzales (1984), 14 DLR (4th) 263 (BCSC, McLachlin J)
- Thompson Schwab V Costaki [1956] 1 All ER 652
- Union Carbide Corporation V. Union Of India [1991] INSC 252

W
- Wisma Punca Emas Sdn Bhd V Dr Donal [1987] 1 MLJ 393 SC

- Woon Tan Kan & 7 Ors v Asian Rare Earth Sdn Bhd [1992] 4 CLJ 229
- Williams v Milotin (1957) CLR 465
BIBLIOGRAPHY
BOOKS
Dr. R.K. Bangia , The law of Torts, 23rd Edition
Archold’s Criminal Pleading, Evidence and Practice, 2010th Edition
David Barker, Essential Australian Law (2000)
Foundations of civil and criminal law in Canada(3rd Edition), Toronto
Philippine Law on Torts and Damages, Volume 2
WEBSITES
www.googlebooks.com
www.indiankanoon.com
www.wikipedia.org
www.uslegal.com
www.legalservicesindia.com
www.lawcommission.justice.gov.uk
www.communities.gov.uk
www.lawhandbook.org.au
www.lawinireland.wordpress.com
www.Israelinsurancelaw.com
www.ohsinsider.com
www.mondaq.com
www.lawteacher.net
www.alllaw.com
ACTS
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The Concept Of Nuisance In Tort Law

Research Dissertation Submitted To

Amity Institute Of Advanced Legal Studies

Amity University Uttar Pradesh

In Part Fulfilment Of Requirements for the Degree of

Master Of Laws (LLM)

LLM (Business Law)

Enrollment No. A0319314025

Chapter 1 – The Concept Of Nuisance……………………………...….3

- Nuisance and Negligence……………………………………..………5

Chapter 2 – Global Laws Regulating Nuisance.......................................22

Chapter 3 – Indian Laws Regulating Nuisance…………………………33

Chapter 4 – Defenses Against Nuisance…………………………………38

Chapter 5 – Leading Case Law………………………………………….65

Union Carbide Corporation V. Union Of India [1991] INSC 252........65

Chapter 6 – Conclusion And Suggestions………………………………68

Nuisance can be of two types

The remedies available to an individual against nuisance can be2 :-

THE CONCEPT OF NUISANCE

In legal terms, the concept of nuisance is used in three ways5 :-

In Bowman vs Humphery6 , Justice Weaver explained the meaning of nuisance as :-

1 ) Generally, trespass consists of :-

i ) a direct physical interference

ii ) with the plaintiff’s possession of land

iii ) through some materials or tangible object

Main points of distinction between nuisance and trespass are:-

2 ) Nuisance and Negligence8

3 ) Nuisance and the Rule of Rylands V Fletcher11

Environmental nuisance – The term environmental nuisance in the field of environmental

Generally, to constitute a nuisance, the complaint regarding nuisance should be substantial,

Essentials to constitute nuisance

- That a defendant committed an activity or action

- Unreasonableness caused by the defendant to another;

So, the elements of nuisance can be summed up as follows21 :-

The concept of Nuisance, broadly talks about two types of nuisance:-

The examples regarding public nuisance can be mentioned as follows:-

i) Causing obstruction in highway.29

ii) Causing blast in the close built-up areas.

iv) Making fake emergency calls.

v) To obtain popularity by hanging on bridges.

vi) participating in drug or gang activities in urban areas.

vii) Keeping pumas in domestic areas.

The legal effect of public nuisance can be of three types31:

1) Environmental Nuisance: it includes harmful substances or objects and obstructing the

A detailed explanation of the above two types can be discussed as follows :-

Other enforcement measures adopted by the local authorities includes an injunction

1) For political protest, climbing on cranes

3) Illegal behaviours regarding drugs.

Alternatives of Public Nuisance39

2) Statutory Nuisance – matters which include statutory offences are :-

Position In Other Countries

(1) Everyone who commits a common nuisance and thereby

- The nature of the neighborhood

- Interference with the use or enjoyment of land

i) Interference with the use, comfort or enjoyment of land

ii) Material or physical damage to land or property61

- Any abnormal sensitivity by the plaintiff

- Time and duration of such interference

- The conduct of the defendant66

- Benefit to the public by the defendant’s activities67

- Interference should be continuous

Issues with private nuisance71

Global Laws Regulating Nuisance