public nuisance and outraging public decency - Law Commission

2.22 One kind of public nuisance, and in a way the classical instance, is the
obstruction of a public highway. Here the analogy with private nuisance is clear:
to obstruct a private right of way is an injury to the owner of that right, so to
obstruct a public right of way is an injury to the public at large. The point here is
not that all members of the public find themselves obstructed, but that one or
more members of the public find themselves obstructed in the exercise of a right
that belongs to the public as such. The definitions in Archbold, and in the 1879
draft Criminal Code, both reflect this distinction.
2.23 Another kind of public nuisance is that which affects the amenity of a
neighbourhood, for example by producing noise or smells. This too has a certain
analogy to private nuisance, where the activities affect the enjoyment of a
neighbouring occupier. However, this analogy is not followed so far as to require
injury to the enjoyment of “public property”, or to make it sufficient that the
noxious effect extended to a place to which the public had access. It appears to
be a requirement that a sufficiently large section of the public is in fact affected.
Romer LJ, in PYA Quarries, said:
I do not propose to attempt a more precise definition of a public
nuisance than those which emerge from the textbooks and authorities
to which I have referred. It is, however, clear, in my opinion, that any
nuisance is “public” which materially affects the reasonable comfort
and convenience of life of a class of Her Majesty’s subjects. The
sphere of the nuisance may be described generally as “the
neighbourhood”; but the question whether the local community within
that sphere comprises a sufficient number of persons to constitute a
class of the public is a question of fact in every case. It is not
necessary, in my judgment, to prove that every member of the class
has been injuriously affected; it is sufficient to show that a
representative cross-section of the class has been so affected for an
injunction to issue. 55
2.24 On the facts of PYA Quarries, the vibration and dust affected the residents of
about 30 houses and parts of the public highway; this may be taken to be a
sufficiently large sample for the purpose. By contrast, in Lloyd 56 a noise affecting
only three houses was held to be only a private nuisance, if that.
2.25 A third kind of public nuisance consists of offensive behaviour in public. 57 It is
here that the issue in Rimmington arises in its most significant form. The facts
are summarised by Lord Bingham as follows.
The particulars were that he [Rimmington]:
53 Para 32.2.2 (p 1092).
54 Romer LJ makes the same point in PYA Quarries [1957] 2 QB 169, 182.
55 P 184.
56 (1802) Esp 200; cited in PYA Quarries, p 182 and Smith and Hogan, para 32.2.2 (p 1092).
57 At para 2.46 below, we distinguish between environmental and behavioural nuisances, and
suggest that different considerations apply to the two categories.
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