Operation of Public Nuisance
Public Nuisance has developed significantly through multiple precedents and leglislation, however, it still does not accurately and consistently reflect the current social issues and views in Australia. The inability of Public nuisance to address multiple claims at once successfully; with the rare exception of actions involving the Attorney- General goes against the intention of the tort. It also fails to consistently protect public rights and to deal appropriately with environmental litigation.
Current issues in public nuisance
Particular damage:
In order to successfully stand before court in public nuisance the plaintiff has to show damage suffered which is in excess of the community at large. Consequently if several people suffer particular damage, it is harder to claim compensation under public nuisance, as they must rely on the Attorney- General, which is rare and unreliable. Hence, in this respect public nuisance fails to meet the aims and intentions of compensating the plaintiffs.
Particular damage:
In order to successfully stand before court in public nuisance the plaintiff has to show damage suffered which is in excess of the community at large. Consequently if several people suffer particular damage, it is harder to claim compensation under public nuisance, as they must rely on the Attorney- General, which is rare and unreliable. Hence, in this respect public nuisance fails to meet the aims and intentions of compensating the plaintiffs.
Environmental litigation:
Public nuisance cases have been use for environmental issues both in Australia and globally, on multiple grounds public nuisance fails to effectively address this issue. This is particularly seen in America, which has similar public nuisance laws. Public nuisance cases have been brought in the areas of green house gases, pollutants and other omissions. Several federal judgements have been hesitant or dismissed Global Warming cases as “strictly political” despite the plaintiff successfully proving all of the elements. [i]This is seen in ‘Native Vill. of Kilvalina v Exxon Mobil Corp.,’ (2009). “It is therefore evident that public nuisance protects collective interests, against the excesses of private activity.” Hence public nuisance operates flexibly as both a common law backstop to political failures and as protection against public breaches of right.”[ii] Hence in the absence of legislation in the environmental litigation, public nuisance has not prohibited certain activity, which breaches public rights and hence has not been used as a common law alternative to political ignorance.
[i] Dana, 2008, p. 2
[ii] Lin, 2012, p.1078
[i] Dana, 2008, p. 2
[ii] Lin, 2012, p.1078
Reducing claims
Enacting legislation:
By contrast, in Australia the government have taken appropriate measure by enacting legislation and statutes to reduce the number of public nuisance claims and the inconsistency of compensation in environmental litigation. An example of this is the Environmental Protection Act, and the ACT and the Protection of Environment Operations Act of NSW. These statutes were both enacted in 1997 aimed at deterring large businesses from acting irresponsibly by enforcing them to consider public rights and the environment.
Enacting legislation:
By contrast, in Australia the government have taken appropriate measure by enacting legislation and statutes to reduce the number of public nuisance claims and the inconsistency of compensation in environmental litigation. An example of this is the Environmental Protection Act, and the ACT and the Protection of Environment Operations Act of NSW. These statutes were both enacted in 1997 aimed at deterring large businesses from acting irresponsibly by enforcing them to consider public rights and the environment.
In comparison, an example of public nuisance acting as a “common law backstop to political failures” [i] resulting in legislation is seen in ‘Seidler v Luna Park Reserve Trust’ (1995). This was a suit responding to the complaints of noise (screams and other omissions) from nearby residents. Due to a lack of funds and this case, Luna Park was closed for three months. However, as a result of this action and other similar actions in the following year, legislation, specifically ‘the Luna park site amendment noise control act’ was enacted in 2005. This legislation limited the scope of nuisance claims and put boundaries in relation to how far they could go for Luna Park. Specifically the court ruled “the emissions of noise from Luna park do not constitute in a public or private nuisance…unless it exceeds maximum permissible level,” [ii] which prevented further issues.
[i] Dana, 2008, p. 2
[ii] Sydney University, 2009, p38
[i] Dana, 2008, p. 2
[ii] Sydney University, 2009, p38
Civil liability act:
This was further refined in the Civil (NSW) liability act section 43(2), which stated that “an act…does not constitute a breach of statutory duty (or public nuisance) unless the act was unreasonable and beyond its functions.”[i] This reform was intended to limit the scope of what the plaintiff could claim when attempting to sue individuals or groups, further it reiterated the importance of statutory duty and its role in nuisance. This act arose from the large extent to what the individuals were attempting to claim as violation of public rights. An example of this is ‘Hunter v Canary Wharf’ which was about the disruption of a television signal. Under the civil liability act; which not all states have complied to, public nuisance has been restricted in its application, which positively reflects the current nature of Australian tort law.
Public nuisances continual refinements are starting to more accurately and consistently reflect Australia’s values as a tort. However, it still needs to change certain aspects of its application before it meets its objectives as a successful tort within Australia.
[i] Stewart & Stuhmcke, 2009, p.430
This was further refined in the Civil (NSW) liability act section 43(2), which stated that “an act…does not constitute a breach of statutory duty (or public nuisance) unless the act was unreasonable and beyond its functions.”[i] This reform was intended to limit the scope of what the plaintiff could claim when attempting to sue individuals or groups, further it reiterated the importance of statutory duty and its role in nuisance. This act arose from the large extent to what the individuals were attempting to claim as violation of public rights. An example of this is ‘Hunter v Canary Wharf’ which was about the disruption of a television signal. Under the civil liability act; which not all states have complied to, public nuisance has been restricted in its application, which positively reflects the current nature of Australian tort law.
Public nuisances continual refinements are starting to more accurately and consistently reflect Australia’s values as a tort. However, it still needs to change certain aspects of its application before it meets its objectives as a successful tort within Australia.
[i] Stewart & Stuhmcke, 2009, p.430