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Public Nuisance -
Procedural Issues
Camena Guneratne
Dept of Legal Studies, Open
University
What is nuisance?
Land owners have certain rights in their
property
But this right is not unlimited
An owner of land cannot use his/her
property in such a way that is causes a
nuisance to others
Therefore nuisance is a restriction on
rights to land
The law of nuisance tries to strike a
balance between those who use land and
those who are affected by it.
Three types of nuisance
Private nuisance
Public nuisance
Statutory nuisance
Public nuisance
The oldest type of legal action which
was used to regulate offensive
activities
Originated in the early English law
Was used to also regulate problems
such as pollution before
environmental laws came into force.
Now one of the most useful ways of
controlling polluting activities.
How do you decide whether
an activity is causing a public
nuisance?
The nature of the act
The number of people affected by it
The nature of the act
Any act which adversely affects the public
The most common would be those causing
pollution - noise, air, water, disposal of
waste, etc
Would also include other activities such as
blocking roads, construction activities, etc
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The number of people
affected
Annoyance, inconvenience or danger
must be caused to the public at large,
either within their homes or in public
spaces
If only one person is affected it may
not be considered a public nuisance
Public nuisance in Sri Lankan
law
A criminal action
Found in the Penal Code and the Code
of Criminal Procedure Act
Penal Code - Section 261
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.
A public nuisance is not excused on the ground
that it causes some convenience or advantage.

Code of Criminal Procedure
Act - CPC
Under Section 98 a Magistrate can
make a conditional order regarding a
nuisance under certain circumstances

continued
1. that any unlawful obstruction or nuisance should be
removed from any way, harbour, lake or river, or
channel which is or may be lawfully used by the public
or from any public place; or
2. that any trade or occupation or the keeping of any
goods or merchandise should by reason of its being
injurious to the health or physical comfort of the
community be suppressed or removed or prohibited;
or
3. that the construction of any building or the disposal
of any substance should as being likely to occasion
conflagration or explosion be prevented or stopped;
or
Continued .
4 that any building or tree is in such a
condition that it is likely to fall and
thereby cause injury to persons living
or carrying on business in the
neighbourhood or passing by and that in
consequence its removal, repair, or
support is necessary; or
5 that any tank, well, or excavation
adjacent to any such way or public place
should be fenced in such a manner as to
present danger arising to the public.
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Conditional orders
If a Magistrate receives a report of a
public nuisance being caused, he/she
may make a conditional order to the
offender to abate it.
What is a conditional order?
A preliminary order which may be made
without hearing the other party
Usually for about 2 weeks
The other party must obey the order
immediately
May come to court to have the order set
aside
The Magistrate will hear the other party
and decide whether to set aside the order
or to amend it or to confirm it.
Uses of the Public nuisance
action
A form of zoning
Form of regulating activities