Environmental Nuisances - Case Study Example

Environmental Nuisances Name Institution Date Introduction Nuisance is anything either a person, circumstance or a thing that causes annoyance or inconvenience to another person or a community. Environmental nuisance can be described as the unreasonable interference, a likeness of interference to the environment as well as the environmental value that is caused by fumes, noise, particles of smoke, odour, light and aerosols (Cornwall Council, 2015, p.1). This may also be as a result of conditions that are offensive, unhealthy or unsightly due to contamination. Environmental nuisance in England Wales can either be statutory nuisance, public nuisance and private nuisance. This assignment aims at discussing the relevant regulations and case law with regard to the environmental nuisances as well as the criminal law in England and Wales. Private Nuisance Private nuisance is defined as the unwarranted, unlawful or unreasonable utilization of another person’s property in a way that interferes with the other person enjoying his or her property without a physical invasion to the individual’s land. It is considered as a civil wrong. Public Nuisance Public nuisance is the act of obstructing, damaging or even causing inconvenience to the community rights (Richardson 2015, para.31). It is an environmental nuisance that involves undertaking works that produce smells, noise, dangerous and offensive behavior to the public. For example, noisy parties as well as hanging from bridges, and obstruction of the public highway which may also be a statutory nuisance as per the Highways Act 1980, s 137. It involves physical invasion and is a criminal wrong. It is also considered as a civil tort whereby an individual has the capacity of suing for damages when he or suffers individually over and above the general public (The Law Commission 2015, p.2). Statutory Nuisance The Government of UK (2015, p.1) defines statutory nuisance as any form of disturbance that is caused by smoke, dust, noise, light and smell. The specific issues that are considered as statutory nuisance are noise that comes from premises, vehicles, machinery or even equipment in the streets. It may also involve smoke that comes from the premises, smell from industries, businesses as well as trade premises like factories, sewage treatment works as well as factories. Artificial light for premises, accumulation on premises like rotting rubbish, insect infestations resulting from trade and industrial premises are also considered as statutory nuisance. Regulations and Case Law Statutory and public nuisance in England and Wales are regulated by The Environmental Protection Act 1990. Sec 79 to 82 of the Environmental Protection Act regulates statutory nuisance. It replaces the previous provisions that were provided in the Public Health Act 1936. The Act also replaced the provisions given in the Public Health Nuisances Act 1969 (Birtles 1997, p.1). In relation to noise nuisance, the Act provides procedures that are more streamlined to those stated in the Control of Pollution Act 1974. The old case law is usually followed when explaining areas of statutory and public nuisance that are not changed in Environmental Protection Act 1990. The Act stipulates that it is the duty of the local authority in England and Wales to investigate and follow up on complaints that are related to statutory nuisance. They have a duty of inspecting regularly and detecting statutory nuisance. They also have the responsibility of investigating complaints of statutory nuisance as reported by residents on the specific areas (Elmbridge Borough Council 2015, p.1). The Common Law also applies in statutory nuisance regulation whereby different cases are brought in court that sets new parameters in relation to how the Courts may consider as an actionable nuisance. The Courts apply the common law principles as well as cases when assessing a nuisance activity or any complained operation that is actionable nuisance as per the Act. The case between R v. Carrick District Council ex parte Shelley [1996] Env L R. 273, the court held that the word nuisance can bring about controversy in its definition and every context should be determined before deciding what comprises of nuisance. Therefore, public and statutory nuisance may have different meanings in common law (Bell, McGillivray & Pedersen 2013, p.601). In common Law, public nuisance is act that materially affects people within the neighborhood it operates. In each case, a local community in question should be determined to amount as class. This is a questionable fact in each public nuisance case. An action against public nuisance, the plaintiff does not require having an interest and the whole family can claim damages from the defendant. A remedy for injunction can be sought, however, the plaintiff will be claiming for private nuisance only. Examples of public nuisance include offensive trade, obstructing the highway as well as keeping brothel. Public nuisance is related to statutory nuisance in the sense that many of the actions that were considered as public nuisance are now covered in statutory nuisance including contamination of water and making it unsafe for drinking, noise from a building as well as stench from a neighboring factory. In the Food and Environment Protection Act 1985, it is a nuisance that involves the contravention of an emergency prohibition in relation to food health hazard. It is the failure of complying with a direction and acting against a forbidden emergency prohibition, undertaking activities like moving silt without a license and contravening regulations that govern pesticides. In the Environment Protection Act 1990, section 33, public nuisance involves illegal waste disposal and treatment. In section 78, it is the failure of complying with remediation notice. In section 80(4), it is the failure of complying with abatement notice as a statutory nuisance. The Water Industry Act 1991, section 70, supplying water that is not suitable for human consumption is a public nuisance. Under the Water Resources Act 1991 and Part 1 of Clean Air Act 1993, public nuisance is involves emitting of dark smoke. The Pollution Prevention and Control Act 1999, particularly the Offshore Chemicals Regulations 2002 (SI 2002/1355), oil pollution is prohibited and considered as a public nuisance. Similarly, the Offshore Petroleum Activities Regulations 2005, the Environmental Permitting (England and Wales) Regulations 2010 and the Waste Regulations 2011prohibits people from causing public nuisance through actions that pollute the environment (Law Commission 2015, p.12). Offenses, defenses and remedies/ penalties Public Nuisance An action against public nuisance is usually a crime. However, a plaintiff can raise a civil action for claiming compensation. On the other hand, a statutory nuisance is a criminal offence. A nuisance offence either public or statutory is usually determined by the local authorities as per the Local Government Act 1972. When an offense is identified, the local authority provides an injunction as a remedy to stop the nuisance. In cases where nuisance cannot be abated, the court requires compensation for the damages caused to the plaintiff to mitigate the problem. Compensation can also be required to be paid when the nuisance was continuous and caused substantial damages. Additionally, the local authorities may find it difficult to undertake as damages when an injunction is given a perpetrator of nuisance. Therefore, one must show that he or she has suffered damages with respect to public right so as to bring a claim in public nuisance. In the case of In Halsey v Esso Petroleum Ltd [1961] 1 WLR 683, it was held that the noise that was coming from a lorry was public nuisance and caused the man lack of sleep. This was a special type of damage even though his health was not affected. The Balancing Act In England and Wales, to be actionable, the law requires that nuisances must be substantial as well as unreasonable. Either in common law or statutory nuisance, a balancing action must be considered among interests that are competing. Local authorities are required to consider several factors including the excessiveness of the conduct, defendant’s malice, the character of neighborhood, Repetitive incidents and isolated incidents as well as the time of nuisance occurrence, unusual sensitivity and when the activity is inherently unreasonable (Birtles 1997, p.5). Regarding the excessiveness of conduct, the local authority needs to consider a balancing exercise. For example, it may be unreasonable for twenty barking dogs while one will be reasonable. In the case of Farrer v Nelson (1885) 15 QBD, 258, the landowner was rearing peasants, however, with time, the peasants became overstocked hence causing nuisance (Robson 2015, p.385). The court held that this was a nuisance to the public due to the excessiveness of the peasants. The conduct of rearing peasants was not nuisance, but the excessiveness was nuisance. Considering the defendant’s malice, the local authority should determine the motive of the offender with the legal significance of the action. Malice has a possibility of rendering an innocent act to be otherwise considered actionable for nuisance. In Christie v Davey [1893] 1 Ch 316, the court held, the act of banging the wall when a piano lesson was held was malicious and thereby nuisance. The malicious motive was considered as nuisance and actionable. Regarding the character of neighborhood, the local authority should consider the effect of nuisance to personal comfort depending on their area of residence. This was decided in the case between Sturges v Bridgeman (1879) 11 Ch.D. 852, whereby, it was held that a nuisance in one location may not be nuisance in a different location. Therefore, those living in the city should expect more nuisances and adopt to it unlike those in rural areas. In the case of St. Helens Smelting Co. v Tipping (1865) 11 HLC 642, the court decided, the damaging of trees in the owners land could not be considered as a public nuisance on the basis that in is part of the neighborhood in the locality. This was not an action to hold him accountable to the actual loss incurred (Birtles 1997, p.6). However, the case between Gillingham Borough Council v Medway (Chatham) Dock Co. [1993] QB 343, there was a new ruling that the construction company had been licensed to prevent traffic movements at the specific time of the day. Therefore, a claim of public nuisance and an injunction cannot be granted to the local authorities as per sec 222 of the Local Government Act 1972. However, this contracts the responsibility of the planning authorities of them not to authorize for nuisances. Repetitive incidents and isolated incidents as well as the time of nuisance occurrence should be considered when determining actionable nuisance. In the case of Bamford v Tumley (1862) 3 B & S 66, the court held, to an actionable nuisance, it must be an action with an element of continuance and a single action cannot amount to nuisance (Taggart 2002, p.188). Additionally, an action can be considered nuisance at midday and not nuisance at midnight. Based on unusual sensitivity, it is considered as the Eggshell Skull Rule whereby an actionable nuisance should be decided on whether the sensitivity of the person was unusual. When the plaintiff is sensitive to a specific type of nuisance, it is considered as a non-actionable nuisance except when proven that it had a possibility of affecting a reasonable person. In the case of Robinson v Kilvert (1889) 41 ChD 88, it was held, damaging the special paper by the heat was not an actionable nuisance since an ordinary paper could not have been damaged (Gordley 2014, p.36). When the activity is inherently unreasonable, then the act would be considered as an actionable nuisance. In the case of McKinnon v Walker [1951] 3 DLR 577 D's, it was held that as a result of the noxious fumes that damaged all the orchids of the plaintiff, it was an actionable nuisance that was different from the plaintiff’s special sensitivity (Gordley 2014, p.36). Statutory Nuisance In all classes of statutory nuisance, the local authorities must get evidence that the nuisance was detrimental to health and a nuisance. To be considered a nuisance, it requires that the action itself is a nuisance even if it is not prejudicial to health. Then such an action is a statutory nuisance. As described in Betts v Penge UDC, [1942] 2KB 154, it was decided that the state of the premises were questionable and were interfering with personal comfort. Therefore, it constituted nuisance (Wood, ‎ Chynoweth & Adshead 2010, p, 152). Any act that interferes with personal comfort is an actionable nuisance. However, in the case of Salford City Council v McNally, [1976] AC 379, the court held that considering nuisance alone may limit those actions that are purely nuisance with no risk to health (Shapiro, ‎ Davies & Mackmin, 2012, p.370). Nuisance should also be defined considering common law interpretation. Therefore, interfering with a neighbors property affects his or her comfort and thereby an actionable nuisance. In the case of National Coal Board v Neath B.C. [1976] 2 ER 478, a nuisance either private or public interferes with comfort of another person, thereby actionable under statutory nuisance. Likelihood here is taken to be the actual injury. Based on the test of prejudicial to health, statutory nuisance is actionable under the law. According to Section 79, subsection 7 of the Environmental Act 1990, prejudicial/detrimental to health is defined as the action that has a likeliness of causing injury to the health of people/person. The courts can define prejudicial to health referring to English law when interpreting an action as a statutory nuisance. The courts have defined Prejudicial/detrimental to health in various cases. In the case of Coventry City Council v Cartwright, [1975] 1 WLR 845, the court held that anything that accumulates and causes threat to the health by causing a disease or vermin is a nuisance that is prejudicial to health (Wolf &  Stanley 2013, p.383). In Bennett v Preston BC, (1983), the court held that an electrical wiring that is unsafe is prejudicial to the health of the people through electric shocks, fire and smoke from the fire. Abatement Notice Once a person has been identified as liable for public and statutory nuisance, the local authority issues him or her with an abatement notice. The abatement notice serves the purpose of requiring the person to stop the nuisance. The Environmental Protection Act 1990, Sec 80 states that after being satisfied of the likeliness of occurring statutory nuisance, the local authority serves an abatement notice to restrict its occurrence (Birtles 1997, p.13). Defenses The available defense for the plaintiff after issued with an abatement notice is an appeal to the magistrate’s court on the basis of being mislead. Section 123 of the Act says that, if the defendant considers to have been misled, he or she can defend themselves in court and ask the court to adjourn the abatement notice. Section 80(7) also provides defense for the defendant not to e prosecuted based on the best practicable means in certain circumstances (Environmental Protections Act 1990). However, this defense does not apply in construction works or under statutory authority. For nuisance from smoke, one has the defense of the premises occupied on behalf of air force, limitary and the crown for naval. These are exempted in section 79(2) of the Act. Remedies/Penalties For a person charged with nuisance, one is required to pay fines as required by the court a s a penalty. In the case of R v Horseferry Road Magistrates ex parte Prophet, [1995] Env LR 104, it was held that the defendant can receive compensation in situations that are clear and straightforward and also whereby a great amount is not at stake (Birtles 1997, p.21). In the case of R v Crown Court at Liverpool ex parte Cooke, [1996] 4 All ER 589, it was held, statutory nuisance should be compensated for damage and injury due to continuing nuisance from the expiry of abatement notice. Conclusion Environmental law and case law in England and Wales clearly stipulates what constitutes private, public and statutory nuisance. As a civil wrong, private nuisance was included in the discussion. The discussion focused on public and statutory nuisances. These two types of nuisances have a common regulation known as the Environmental Protection Act 1990. However, public nuisance was established to be regulated under other Acts and regulations. Both nuisances are also regulated differently under the case law. References Bell, S., McGillivray, D., & Pedersen, O, 2013, Environmental Law, Oxford University Press. Birtles, W, 1997, Statutory Nuisance - a Practical Guide, Environmental Law Group, Available from < http://portal.nasstar.com/33/files/articles/Birtles_StatutoryNuisance.pdf> Cornwall Council, 2015, Environmental Protection – Nuisances, Environment and Planning, Available at: https://www.cornwall.gov.uk/environment-and-planning/environmental-protection/environmental-protection-nuisances/ Conwy County Borough Council, 2015, Environmental Nuisances, Environmental Protection, Available from: < http://www.conwy.gov.uk/doc.asp?cat=2307&doc=2761> Elmbridge Borough Council, 2015, What is a Statutory Nuisance? Noise Nuisance, Available from: < http://www.elmbridge.gov.uk/envhealth/noise/statnuisance.htm> Gordley, J, 2014, The Development of Liability between Neighbours, Cambridge University Press. Government of UK, 2015, Statutory nuisances: how councils deal with complaints, Environmental Management – guidance, Available from: The Law Commission, 2015, Simplification of Criminal Law: Public Nuisance and Outraging Public Decency, Reforming the Law. No. 358. Richardson, P. (ed), 2015, Archbold: Criminal Pleading, Evidence and Practice, para 31-40. Robson, W, 2015, The Principles of Legal Liability for Trespasses and Injuries by Animals, Cambridge University Press. Shapiro, E., ‎Davies, K., & David Mackmin, D, 2012, Modern Methods of Valuation, Taylor and Francis. Taggart, M, 2002, Private Property and Abuse of Rights in Victorian England: The Story of Edward Pickles and the Bradford Water Supply, Oxford University Press. Wolf, S., & Stanley, N, 2013, Wolf and Stanley on Environmental Law, Routledge. Wood, D., ‎Chynoweth, P., & Adshead, J, Law & the Built Environment, Wiley Publishers. Acts Clean Air Act 1993 Environmental Protection Act 1990 Food and Environment Protection Act 1985 Highways Act 1980, s 137. Local Government Act 1972 Pollution Prevention and Control Act 1999 Water Industry Act 1991 Water Resources Act 1991 Cases Bamford -v- Tumley (1862) 3 B. & S.66 Bennett -v- Preston BC (1983) Betts -v- Penge UDC [1942] 2KB 154 Christie -v- Davey [1893] 1 Ch. 316 Coventry City Council -v- Cartwright [1975] 1 WLR 845 Farrer -v- Nelson (1885) 15 Q.B.D. 258 Gillingham Borough Council -v- Medway (Chatham) Dock Co. [1993] QB 343 Halsey -v- Esso Petroleum Ltd. [1961] 1 WLR 683 McKinnon -v- Walker [1951] 3 D.L.R. 577 D's National Coal Board -v- Neath B.C. [1976] 2 ER 478 R v. Carrick District Council ex parte Shelley [1996] Env.L.R. 273 R. -v- Crown Court at Liverpool, ex parte Cooke [1996] 4 All ER 589 R. -v- Horseferry Road Magistrates ex parte Prophet [1995] Env. LR 104 Robinson -v- Kilvert (1889) 41 Ch.D. 88 Salford City Council -v- McNally [1976] AC 379 Sturges -v- Bridgeman (1879) 11 Ch.D. 852 St. Helens Smelting Co. -v- Tipping (1865) 11 H.L.C. 642 Read More