Nuisance, Negligence and the Civil Remedies

In one line

The four torts that were the whole of environmental law before 1974, and the only route by which a victim is actually paid.

In exam wording: the civil remedies for pollution are nuisance, both public and private, negligence, trespass and the rule in Rylands v Fletcher with its Indian development into absolute liability; the reliefs are damages and injunction; and they are available in a civil court or, where a substantial question relating to environment arises out of the implementation of the Schedule I Acts, before the National Green Tribunal under sections 14 and 15 of its Act.

Why a student of the statutes needs the torts

Because none of the statutory sanctions pays the victim. A direction stops the activity, a penalty goes to the Environmental Protection Fund, a prosecution ends in a fine to the State, and a cancelled registration helps nobody. Only a civil claim, or an application to the Tribunal under section 15, puts money in the hands of the person harmed.

And the statutes say so. Section 15C(5) of the Environment (Protection) Act, section 45B(3) of the Water Act and section 39A(3) of the Air Act all provide that the penalty is in addition to the liability to pay relief or compensation under sections 15 and 17 of the National Green Tribunal Act.

Private nuisance

What it is. An unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it.

The three requirements.

One, an interference. By smoke, smell, dust, noise, vibration, heat, fumes, water or the escape of anything harmful.

Two, unreasonableness. Not every interference is a nuisance. The question is whether it exceeds what a person may reasonably be expected to put up with, judged by the locality, the duration and frequency, the time of day, the sensitivity of the claimant, and any malice.

Three, damage. In nuisance by physical injury to property, damage is proved. In nuisance by personal discomfort, substantial interference is enough.

Who may sue. A person with an interest in the land affected: an owner, a tenant, and in India a person in lawful occupation.

The defences that work. Prescription, that is, twenty years' continuance as an easement. Statutory authority, where an Act authorises the very thing complained of and the defendant has taken all reasonable care. Consent. And, in a limited way, act of a stranger or act of God.

The defences that do not work, and each is examinable.

Coming to the nuisance is no defence. That a claimant moved next to an existing factory does not defeat the claim, and Ratlam Municipality rejected the same argument in a public nuisance.