MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- Curtin
(3) It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for the act or omission mentioned in paragraph (a) of that subsection. (4) A person guilty of an offence under subsection (1) is liable— (a) on summary conviction, to imprisonment for a term not exceeding he general limit in a magistrates’ court, to a fine or to both; (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years, to a fine or to both. … (6) The common law offence of public nuisance is abolished. (7) Subsections (1) to (6) do not apply in relation to— (a) any act or omission which occurred before the coming into force of those subsections, or (b) any act or omission which began before the coming into force of those subsections and continues after their coming into force. (8) This section does not affect— (a) the liability of any person for an offence other than the common law offence of public nuisance, (b) the civil liability of any person for the tort of public nuisance, or (c) the ability to take any action under any enactment against a person for any act or omission within subsection (1). (9) In this section “enactment” includes an enactment comprised in subordinate legislation within the meaning of the Interpretation Act 1978.”
82. The Act retains civil liability for the tort of public nuisance: s.78(8)(b). That reflects the position that used to apply under the common law and the authors of Clerk & Lindsell on Tort (§19-179, 24 th edition, Sweet & Maxwell, 2023) consequently suggest: “ it is clear that the previous common law decisions on liability for public nuisance continue to provide guidance on the scope of civil liability in highway cases ”. 83. Consideration of the law relating public nuisance arising from an obstruction of the highway must start with the following basic propositions: (1) simple obstruction of the highway is a criminal offence under s.137 Highways Act 1980; (2) a threatened or actual offence under s.137 cannot ground a civil claim (without the consent of the Attorney-General): Gouriet – see [76] above);
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