Nuisance — Public & Private Nuisance — Law of Torts Notes

Nuisance — Public and Private

A man lived next door to a Roman Catholic chapel whose bell was rung at all hours of the day and night. He sued the priest. The bell was rung for worship, on the priest’s own land, by a man doing nothing unlawful — and the court granted an injunction. Nuisance is the tort that decides how much of your neighbour’s activity you have to put up with.

Unreasonable interference

Nuisance is an unlawful interference with a person’s use or enjoyment of land, or of some right over or in connection with it.

The key word is unreasonable. Living near other people means tolerating a certain amount of noise, smell and smoke. Nuisance begins where the interference passes what a reasonable person in that locality should have to bear.

A. Public nuisance.

A public nuisance is an act which interferes with the enjoyment of a right common to the general public — obstructing a highway, polluting a river, carrying on an offensive trade.

Two things follow, and both are examined:

Public nuisance is primarily a crime (s.268, Indian Penal Code; now s.270 of the Bharatiya Nyaya Sanhita, 2023), remedied by proceedings under s.133 of the Code of Criminal Procedure, 1973 — now s.152 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
A private individual can sue in tort only if he proves special damage — some particular injury to himself, over and above that suffered by the public generally. Without that, the remedy is public, not private.

B. Private nuisance.

A private nuisance is an unreasonable interference with a person’s use or enjoyment of his land. Only a person with an interest in the land — the occupier — can normally sue.

The essentials:

An unreasonable interference.
With the use or enjoyment of land, or some right connected with it.
Damage — either actual injury to the property, or substantial interference with comfort and convenience.

Factors the court weighs: the degree and duration of the interference; the locality (“what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”); any abnormal sensitivity of the plaintiff (which does not help him); the utility of the defendant’s conduct; and malice, which can tip an otherwise lawful activity into nuisance (Christie v Davey, 1893).

C. Kinds of private nuisance.

Nuisance by encroachment — overhanging branches, spreading roots.
Nuisance by direct physical injury to the land — vibrations, escaping fumes.
Nuisance by interference with comfort — noise, smell, smoke, dust.

D. Defences — and the two that never work.

Good defences:

Prescription. A right to commit a private nuisance may be acquired by twenty years’ uninterrupted continuance, provided the plaintiff knew of it.
Statutory authority (see Unit 2).

Defences that always fail, and naming them shows command:

“The plaintiff came to the nuisance.” It is no answer that the plaintiff moved in after the activity began (Bliss v Hall, 1838).
“The activity benefits the public.” Public benefit is not a defence to an individual’s claim (Shelfer v City of London Electric Lighting Co., 1895). Shelfer is also the authority on when a court will award damages in place of an injunction, and it makes that course exceptional: only where the injury to the plaintiff’s rights is small, is capable of being estimated in money, can be adequately compensated by a small money payment, and where it would be oppressive to the defendant to grant an injunction. Otherwise a wealthy defendant could simply buy the right to go on committing the nuisance.

E. Remedies.

Damages.
Injunction — including a quia timet injunction [because he fears] granted before the nuisance begins, where it is imminent and certain. This is the answer to the flour-mill problem.
Abatement — the self-help remedy of removing the nuisance yourself, exercisable with care and, generally, after notice. Cutting off branches overhanging your land is abatement.

🧩 WORKED EXAMPLE — the flour mill on the ground floor

Facts. X lives on the first floor of a building. Y proposes to start a flour mill on the ground floor, which would cause noise and vibration amounting to a nuisance to X. X asks what he can do. The mill has not yet started.

Rule. Where a nuisance is imminent and its occurrence practically certain, the court may grant a quia timet injunction restraining it before it begins.

Apply. X need not wait to be injured. If he can show that the mill will, on the evidence, inevitably cause substantial interference with his use and enjoyment of his flat, an injunction may issue at once.

Decoy. The fact that no harm has yet occurred, which suggests there is nothing to sue on.

Note the limit. The court will not act on a mere apprehension — the proof of imminent and substantial harm must be strong.

Conclusion. X may seek a quia timet injunction, and damages if the nuisance later occurs.

Section 268, Indian Penal Code (now s.270, Bharatiya Nyaya Sanhita, 2023): “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.”

In Simple Terms: if what you are doing harms or endangers the public at large, or anyone using a public right such as a road or river, it is a public nuisance — and that is a criminal offence, quite apart from any private suit.

flowchart TD
    N["NUISANCE — unreasonable interference"]
    N --> PU["PUBLIC — interference with a right common to the public; a CRIME (s.268 IPC / s.270 BNS)"]
    PU --> SD["A private person may sue only on proof of SPECIAL DAMAGE"]
    N --> PR["PRIVATE — unreasonable interference with the use or enjoyment of LAND"]
    PR --> F["Weigh: degree and duration · locality · plaintiff's sensitivity · utility · MALICE"]
    F --> R["Remedies: damages · injunction (including quia timet) · abatement"]
    F --> D["Defences that work: prescription (20 years) · statutory authority"]
    F --> X["Defences that FAIL: coming to the nuisance · public benefit"]

Case Laws

Soltau v De Held (1851) — a chapel bell rung at all hours; injunction granted.
Christie v Davey (1893) — malicious noise made to annoy a neighbour was a nuisance.
St. Helen’s Smelting Co. v Tipping (1865) — locality matters for discomfort, not for physical damage to property.
Bliss v Hall (1838) — coming to the nuisance is no defence.
Shelfer v City of London Electric Lighting Co. (1895) — public benefit is no defence.
Ram Baj Singh v Babulal (1982) — brick-grinding machine dust entering a doctor’s consulting room; special damage established.
Radhey Shyam v Gur Prasad (1978) — noise from a flour mill in a residential area restrained.

📄 Full notes + Question Bank (₹199) — every topic in depth, model answers to all past exam questions, in one printable PDF. Get the bundle · 10 Solved Problems · All Law of Torts topics