5 - Statutory Nuisance

Summary

INTRODUCTION

In the last chapter we discussed how an individual, who is adversely affected inter alia, by noise can invoke the law of nuisance in order to secure redress. However, common law nuisance as a means of securing the abatement of an alleged nuisance has pronounced limitations. First, in order to successfully raise an action in nuisance the claimant is required to have a proprietary interest in the land that is adversely affected. Furthermore, the cost of an individual taking action at common law has the obvious effect of discouraging recourse by way of such an action.

In this chapter we look at the subject of statutory nuisance, which represents the oldest branch of modern environmental law. Statutory nuisance has its origins in the mid-nineteenth century, when it was widely believed that cholera was spread amongst the population by foul odours, or miasms, that emanated from foul matter. Cholera was a shocking disease. Victims of the disease suffered from high temperature, severe abdominal pain, vomiting and explosive diarrhoea that left the patient severely dehydrated. The upshot of this was that those who had recently died of cholera were skeletal in appearance.

The opposing theory as to the transmission of disease was the contagion theory. However, until germs were discovered by Pasteur and Lister, the contagionist's theory lacked credibility, simply because there was no scientific foundation to which their theory could attach.

However, the miasmatists were in the majority in the government. The views of this majority, therefore, shaped the content of the legislation that was intended to strike against the cholera threat. The statutes that were passed were, therefore, ‘nuisance-based’, that is to say that the main purport of the legislation was to eradicate the perceived causes of the environmental threat. Public health legislation continued to employ the law of nuisance as a remedial device. For example, the Public Health Acts 1875 and 1936 employed the concept of statutory nuisance to deal with a range of adverse environmental circumstances. In Scotland the Public Health (Scotland) Act 1867 and 1897 (both repealed) contained similar provisions.