218Property Law

controls. Whilst the law of planning is beyond the remit of this volume, we will concentrate first on the law of nuisance, which provides us with a vivid picture of the symbiotic relationships which characterise all forms of ownership, before going on to consider the relatively recent innovation of the restrictive covenant.

6.4.1.1.A brief introduction to nuisance

Nuisance is divided into two distinct branches, namely, public and private nuisance, although it is quite possible for the same conduct to amount to an actionable wrong under both categories.

Public nuisance

Public nuisance is defined by Jolowicz as something ‘which materially affects the life of a class of Her Majesty’s subjects who come within the sphere or neighbourhood of its operation’. Historically, it was, in effect, the common law’s response to problems arising out of land use where the effects were too diverse and indiscriminate to expect any individual to take action on his own. In consequence, the law of public nuisance is something of a rag-bag of public wrongs which, in the words of Lord Denning, ‘covers a multitude of sins, great and small’ (Southport Corp. v. Esso Petroleum Co. [1954] 2 QB 182 at 196) including, for example, keeping a disorderly house, selling food unfit for human consumption, throwing fireworks in the street and even (in other jurisdictions at least) running a badly organised pop festival (see Attorney-General for Ontario v. Orange Productions Ltd

(1971) 21 DLR (3d) 257).

The law of public nuisance developed against the backdrop of a legislature far less interventionist than we are accustomed to today, and its significance correspondingly declined as Parliament became more accustomed to dealing with specific public hazards by individual legislative action. It does not follow from this that public nuisance is now irrelevant (nor that this area of the law is incapable of further development) but simply that both existing and new public hazards are, these days, more likely to be dealt with specifically by parliamentary enactment rather than by the ingenuity of the common law.

In accordance with its underlying rationale in protecting the interests of the community, public nuisance is a crime for which the perpetrator may be prosecuted. If the criminal sanction proves inadequate, a civil action (to obtain an injunction requiring that the unlawful activity be terminated) may be brought by the Attorney-General or the local authority. However, in the absence of particular damage, individuals are not permitted to bring a civil claim in respect of such a nuisance, as that would open the door to a multiplicity of actions where, by definition, the harm caused has been suffered by the public in general.

Private nuisance

In contrast, private nuisance is a civil wrong (a tort) invariably enforced by individuals bringing a private action in the civil courts. Unlike its public law