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The law has always protected the rights of persons who suffer any type of injury by

the act or omission of another. In relation to this, Bridge development Ltd’s potential liability

in relation to any potential nuisance actions will be discussed in the light of the expansion

they did with Ashenhurst Hall to increase the number of visitors by converting it into a theme

park. One of the main concerns include the traffic causing considerable inconvenience to the

residents of Ashenhurst village wherein a milk tanker had to pour a couple of litres of milk

down the drain. Also, the noise emanating from the theme park, such as piercing screams

from theme park rides, is affecting neighboring homes and the animals residing in a nearby

wildlife sanctuary. In addition to this, waste from the theme park has not been collected

properly which is affecting another farmer’s land. Lastly, a theme park ride has caused

damage to a sewer pipe owned by a local water company.

With these concerns in mind, it is important to define what constitutes tort, nuisance

and whether or not these acts are within the realm of the definition of tort or nuisance. In

view of this, case analysis would also be done to further shed light on the various rulings the

court has made regarding the issues at hand. In this manner, the potential liability of Bridge

Development Ltd would be easier to abate.

Definition of Tort

Torts are a group of civil wrongs that in some way bring injury to persons or property

and for which the law provides a remedy in the form of an award of a sum of money. The

term civil wrong refers to the fact that a suit based on tort is not prosecuted by the state in a

criminal proceeding but rather is initiated by a private party acting as the plaintiff.1

Public Nuisance and Private Nuisance

Nuisance is a common law tort. There are two types: public nuisance and private

nuisance. To the present day, causing a public nuisance has been treated both as a crime and a

1
Academic American Encyclopedia, s.v. ”tort.”
tort, the ingredients of each being the same. Public nuisance may be likened to a statutory

nuisance which is a criminal offence and is the statute version of the common law tort of

nuisance.

A public nuisance is an act or a failure to act that inconveniences or harms the public

at large. It is a criminal offense, punishable by fine or imprisonment.

A private nuisance, on the other hand, is an act that interferes with your use and

enjoyment of your own land. You can settle a private nuisance problem by a civil lawsuit,

directing the wrongdoer to pay for the damage and to discontinue the nuisance.2 In Lord

Lloyd in Hunter v Canary Wharf [1997] 2 All ER 426 3, the court stated that private nuisances

are of three kinds. They are (1) nuisance by encroachment on a neighbour's land; (2) nuisance

by direct physical injury to a neighbour's land; and (3) nuisance by interference with a

neighbour's quiet enjoyment of his land. Moreover, foreseeability of harm is a prerequisite

of the recovery of damages in private and also in public nuisance. In De Keyser's Royal Hotel

v Spicer Bros Ltd (1914) 30 TLR 2574, noisy pile driving at night during temporary building

works was held to be a private nuisance.

Statutes related to Nuisance

The statute which specifically addresses the problem on nuisance is embodied in the

Environmental Protection Act of 19905. Section 79(1) of the Environmental Protection Act

1990 establishes nine categories of statutory nuisance (the state of premises, smoke

emissions, fumes or gases from dwellings, effluvia from industrial trade or business premises,

accumulations or deposits, animals, noise from premises, noise from vehicles or equipment in

2
Family Legal Guide, Reader’s Digest, s.v. ”nuisance.”
3
United Kingdom Parliament, Hunter and Others v. Canary Wharf Ltd.
Hunter and Others v. London Docklands Corporation, retrieved 13 November 2006, <
publications.parliament.uk/pa/ld199697/ldjudgmt/jd970424/hunter01.htm>.
4
Essays-r-Us, Negotiation Plan, retrieved 13 November 2006, <essays-r-us.co.uk/detail.asp?essay=7770>.
5
Office of Public Sector Information, Environmental Protection Act 1990, retrieved 13 November 2006, <
opsi.gov.uk/ACTS/acts1990/Ukpga_19900043_en_4.htm>.
a street and other matters declared by other Acts to be statutory nuisances). Section 33

controls the dumping of waste.

Another relevant statute is the Water Industry Act 1991. Section 85 of the Water

Resources Act 1991 makes it an offence to pollute controlled waters and Section 94 sets out

the principal general duty of every sewerage undertaker: to ensure its area is properly

drained. To this end the undertaker must provide an appropriate system of sewers and to

cleanse and maintain those sewers as to ensure that that area is and continues to be effectually

drained.6

Injunctions, Damages, Abatements and Criminal Penalties

Courts may issue injunctions against nuisances, ordering that they be stopped,

removed, limited or restrained. A defendant can be ordered not to continue an existing

nuisance or not to proceed with a threatened one. Injunctions are drastic remedies granted

when the threat or harm is serious and there is likelihood that it will reoccur if not stopped.

Injunctions may give a defendant a choice.

In some cases, it is appropriate to award money damages in a private nuisance case to

compensate the plaintiff for the harm he has suffered – whether or not an injunction is issued.

Summary abatement, on the other land, is stopping a nuisance without resorting to

legal action. One must give proper notice to the person responsible for the nuisance before

trying to stop it. Anyone who tries to abate a nuisance summarily must not unnecessarily

damage property, cause personal injuries, or disturb peace.7

Analysis

At present, the boundaries of tort are blurring. This is mainly due to the public/private

nuisance divide and existence of the rule in Rylands v Fletcher. Rylands v. Fletcher (1868)

6
Office of Public Sector Information, Water Industry Act 1991, retrieved 13 November 2006, <
opsi.gov.uk/acts/acts1991/Ukpga_19910056_en_1.htm>.
7
Family Legal Guide, Reader’s Digest, s.v. ”nuisance.”
LR 3 HL 330, a landmark English legal case, in which the Court of the Exchequer Chamber

first applied the doctrine of strict liability for inherently dangerous activities. It established a

rule related to, though arguably distinct from, the tort of nuisance.8 However, recent cases

like Transco Plc v Stockport Metropolitan Borough Council [2003] UKHL 61, has not been

that strict as in the Rylands v. Fletcher case. In the Transco case, the House of Lords has held

that a water supply piped by a local authority to a block of flats on their land was a normal

use of land with the consequence that when water escaped from the supply, the rule in

Rylands v Fletcher (1868) LR 3 HL 300, which imposes liability without the need to prove

negligence, did not apply.9

In the case of Bridge Development Ltd, however, it is clear that some of the

company’s conduct may constitute as tort but the more serious ones that affect the public may

be considered as statutory nuisances which is a criminal offence and is the statute version of

the common law tort of nuisance. The leading modern authority on public nuisance is

Attorney General v PYA Quarries Ltd [1957] 2 QB 169. Denning LJ on p 191, said, "that a

public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its

effect that it would not be reasonable to expect one person to take proceedings on his own

responsibility to put a stop to it, but that it should be taken on the responsibility of the

community at large."10

Also, to be considered a statutory nuisance, according to the case of Wyvernhoe Port

v. Colchester Borough Council [l985] JPL175, where it is said: "To be within the spirit of this

Act a nuisance, to be a statutory nuisance, has to be one interfering materially with the

personal comfort of the residents, in the sense that it materially affected their well being

8
Wikipedia, Rylands_v._Fletcher, retrieved 13 November 2006, <en.wikipedia.org/wiki/Rylands_v._Fletcher>.
9
United Kingdom Parliament, Transco Plc v Stockport Metropolitan, retrieved 13 November 2006, <
publications.parliament.uk/pa/ld200203/ldjudgmt/jd031119/trans-1.htm>.
10
United Kingdom Parliament, Regina v. Rimmington, retrieved 13 November 2006,
<publications.parliament.uk/pa/ld200506/ldjudgmt/jd051027/gold-2.htm>.
although it might not be prejudicial to health."11 "Statutory Nuisance Law and Practice,

Oxford University Press" further elaborated that "Whereas to the lay person anything that

annoys him is a nuisance, the legal test for noise/nuisance is objective. The noise must be

both excessive and unreasonable."

With these definitions in mind, it is now proper to address the potential liability of

Bridge Development Ltd in relation to any potential nuisance actions. The acts complained of

cannot, however, be treated as a whole. The different concerns will be discussed one by one

since there are different complainants for a specific issue.

First among these issues is the traffic congestion which caused Farmer Green to pour

1,500 litres of milk down the drain. The traffic congestion was felt during the opening day

wherein all the public roads were blocked with traffic causing inconvenience to the residents

of Ashenhurst village. This issue, however, cannot be treated as a statutory nuisance. The

court has yet to abate a disturbance based solely on traffic congestion. They also take into

consideration the fact that the said traffic congestion may be a sign that the place also

provides employment and tax revenue. Without malicious intent from Bridge Development

Ltd, Farmer Green cannot sue for damages. This is important as illustrated in the case of

Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 wherein the court has

stressed the principles of reasonable user and reasonable foreseeability: It was the absence of

reasonable foreseeability of harm of the relevant type that excluded liability in that case.

However, if other violations, that are statutory nuisances, occur, the court may find it proper

to abate such nuisance. It is ruled in the case of Sedleigh-Denfield v O'Callaghan [1940] AC

880, the House of Lords held that an occupier of land "continues" a nuisance if, with

knowledge or presumed knowledge of its existence (in that case a defective grating giving

11
RichardBuxton.co.uk, Wyvernhoe Port v. Colchester Borough Council, retrieved 13 November 2006, <
richardbuxton.co.uk/reference/view.php?table=transcripts&id=145&flag=name>.
rise to flood damage), he fails to take reasonable means to bring it to an end when he has

reasonable time to do so.12

The most important concern is the noise that Ms. Bourne, along with the village

residents, have been complaining about since they are unable to sleep because of the high

level of noise. Moreover, the said noise has been causing distress to the animals residing at

the nearby wildlife sanctuary owned by Mr. Goode. In a very similar case, Roper v. Tussauds

Theme Parks Ltd(2005), the court has ruled that noise from a nearby theme park is indeed a

nuisance and has declared that a statutory noise nuisance existed and ordered such theme park

to abate the nuisance.13 It is clear then that noise does not only qualify as a tort but is indeed a

statutory nuisance.

The fact that Ashenhurst hall has been open for public viewing since the early 1960s

will not excuse it for being potentially liable for the noise that the new development has

created. The fact that a locality is a noisy one, or of an industrial character, does not, in itself,

constitute a defense to nuisance. In Rushmer v Polsue and Alfieri Ltd[1906], Cozens-Hardy

LJ said: "It does not follow that because I live, say in the manufacturing part of Sheffield I

cannot complain if a steam-hammer is introduced next door, and so worked as to render sleep

at night almost impossible, although previously to its introduction my house was a reasonably

comfortable abode, having regard to the local standard; and it would be no answer to say that

the steam-hammer is of the most approved pattern and is reasonably worked." Noise

produced by industrial and manufacturing processes or by using equipment associated with

such activities is a complicated area of control. As the above words of Cozens-Hardy LJ

12
Law Teacher, Private Nuisance, retrieved 13 November 2006, < lawteacher.net/Tort/Nuisance/Nuisance
%20Lecture.htm>.
13
RichardBuxton.co.uk, Roper v Tussauds, retrieved 13 November 2006, <
richardbuxton.co.uk/reference/view.php?table=transcripts&id=118&flag=name>.
show, taking the best available steps to mitigate the noise does not necessarily mean that a

common law nuisance cannot be established.14

Also, with regards to the piercing screams at frequent intervals which are causing

distress to the animals residing at the nearby wildlife sanctuary owned by Mr.Goode, The

Protection of Animals Act 1911 makes it an offense to infuriate or terrify any animal. Any

person or organization may initiate proceedings under this Act. The courts alone must decide

whether an offence has been committed. Although there has been no case yet on theme parks

causing distress to animals, the Fireworks Act 2003 orders the Secretary of State for securing

that there is no risk that the use of fireworks will have the following consequence - death of

animals or injury or distress to animals. It is clear then that the law protects even the animals

and to avoid any nuisance that may cause distress to them. The injury to the animals,

therefore, may constitute statutory nuisance.

The most palpable nuisance among the acts of Bridge Development Ltd is its

problematic waste disposal. The problem with the disposal was further aggravated by the

fracture which caused the overloading and resulted in litter and rotting food overflowing and

polluting farmer Green’s land. This is a clear violation of the general tort law which is

effectively encapsulated in the concept of "duty of care" owed by one individual to another.

This duty was set out in the landmark case of Donoghue v Stevenson(1932). The "neighbour

principle" which states that you must take reasonable care to avoid acts or omissions which

you can reasonably foresee would be likely to injure your neighbour. The "Duty of Care" was

introduced under the Environmental Protection Act. Anyone who imports, produces, carries,

keeps, treats or disposes of waste is subject to a duty of care whereby they must take all

reasonable and applicable measures: to prevent another person illegally treating, keeping,

depositing or otherwise disposing of the waste, to prevent the escape of waste and to ensure

14
Scottish Executive, Rushmer v Polsue and Alfieri Ltd, retrieved 13 November 2006, <
scotland.gov.uk/Publications/2005/10/2192231/22366>.
that transfer of the waste only occurs to an "authorized person" and that the transfer is

accompanied by a written description of the waste.15 This problem is definitely a statutory

nuisance and must be dealt with by the council.

The last issue to discuss is the landslide which occurred in relation to the multilevel

log flume ride. It started when the water from the ride seeped through a crack and collected

behind a wall adjoining a railway line and eventually pushed the water over resulting to a

landslide which damaged a sewer pipe owned and managed by the local water company. This

is clearly a case of public nuisance since not only is there damage to another’s property but

the property damaged is relevant to the public at hand. It is a source of water for the

community therefore any damage to it will definitely affect the public. This definitely

constitutes statutory nuisance.

CONCLUSION

It is clear that the acts which the individuals have complained of against Bridge

Development Ltd definitely constitute not only tort but statutory nuisance. It is clear that

although only a few individuals have voiced their concern about the said acts, the public at

large is affected by the said acts. As we stated earlier, when the public’s interest is at hand, it

is not only a tort but a statutory nuisance, which is, a crime.

Not only was the damage foreseeable, but the actual harm is definitely excessive. The

fact that the government has granted authority to Bridge Development Ltd for the expansion

does not excuse it from complying with the requirements provided by law. Said compliance

must continuously exist, not only during the beginning but throughout the whole period of

operation.

15
WasteOnline, The Controlled Waste Regulations 1992, retrieved 13 November 2006, <wasteonline.org.uk>