A lawsuit is filed by the attorney-general or a person who suffered a special damage
The activities of every individual, the state and the public authorities must respect everyone’s right to enjoy a comfortable life both at their place of residence and of work. Public and private nuisance is considered to be that which adversely affects the reasonable comfort of a social group or the personal enjoyment of the property of a person and their family.
Factors at play in each case are the character of the area, the time of day and the duration of the nuisance. Compensation and the issuance of an injunction is the remedy usually provided if it is proven that there is a causal relevancy between the injurious effect and the display of conduct.
Article 45 of the Civil Wrongs Law, Cap.148, provides that a public nuisance consists of some unlawful act, or omission to discharge a legal duty endangering the life, safety, health, property or comfort of the public or obstructing the public in the exercise of some common right; provided that no action shall be brought in respect of a public nuisance, save (a) by the attorney-general for an injunction, or (b) by any person who has suffered special damage thereby.
The meaning of ‘unlawful act’ was explained by the Supreme Court in a unanimous decision issued on February 10. It said that ‘unlawful act’ does not presuppose an independent illegal act, which has the meaning of violating a specific legislation. The correct term given is ‘unlawful act’ to the extent that it differs from the term ‘illegal act’. The Supreme Court referred to the Concise Oxford English Dictionary, where the difference is recorded as follows: “Illegal and unlawful have slightly different meanings. Something that is illegal is against the law, whereas an unlawful act merely contravenes the rules that apply in a particular context. Thus, handball in football is unlawful, but not illegal”.
The court of first instance held that in order for public nuisance to be substantiated, it must be accompanied by illegality. In the context of public nuisance though, the Supreme Court stressed, the term means “an act not authorised by law”. Therefore, in article 45 it does not mean illegality in the sense of violating a specific law, but it does mean that acts which constitute public nuisance are all unlawful acts.
In the present case, the court of first instance dismissed an application from the attorney-general for the issuance of an injunction to prohibit operation of an asphalt plant. It considered that the alleged acts and/or omissions causing damage to the health of the public were not accompanied “by any unlawful act or omission of the respondents in the exercise of a legal obligation”.
The Supreme Court disagreed, noting that evidence had been brought before the court of first instance, according to which several of the residents showed symptoms due to the inhalation of the fumes emitted from the plant and the suffocating atmosphere created during its working hours. It concluded that no illegal act is required to be proven in order to prove public nuisance. It adopted the definition of nuisance with reference to Clerk & Lindsell on Torts, that “A public nuisance is defined as an act or omission which constitutes interference or harassment to a person in the exercise or enjoyment of a right which belongs to him as part of the public”. Consequently, the Supreme Court exercised its discretionary power and issued the injunctions, prohibiting the operation of the plant.
George Coucounis is a lawyer practicing in Larnaca and the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]