MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- Curtin
a class of Her Majesty’s subjects. The sphere of the nuisance may be described generally as “the neighbourhood”; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected for an injunction to issue.’ Denning LJ agreed. He differentiated between public and private nuisance at p.190 on conventional grounds: ‘ The classic statement of the difference is that a public nuisance affects Her Majesty’s subjects generally, whereas a private nuisance only affects particular individuals. ’ He went on to say, at p.191: ‘that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.’”
94. Ms Bolton’s submissions on behalf of the Claimants have very much proceeded on the assumption that every threatened or actual obstruction of the highway is amounts to an actionable public nuisance. That is not correct. Whether a public nuisance is caused by an obstruction of the highway is a question of fact and degree: see e.g. N.V. Royale Belge [40]. 95. The criminal offence of obstruction of the highway can embrace behaviour ranging from the obstruction of a single vehicle on a minor ‘B’ road at 3 o’clock in the morning, to a massive blockage of the M25 motorway during rush hour. The former, even if it amounts to a criminal offence under s.137 Highways Act 1980, would not remotely constitute a public nuisance, whereas the latter probably would. 96. In her submissions, Ms Bolton referred to and relied upon DPP -v- Jones [1999] 2 AC 240 , Ziegler and Northern Ireland Abortion Services . Whilst these authorities do contain important statements of principle, they have limited direct application to the issues that I must resolve. Each of those cases was concerned with the way in which the criminal law accommodates protest rights. None of the cases concerned the torts relied upon by the Claimants. DPP -v- Jones was a case about trespassory assembly, contrary to s.14A Public Order Act 1986; Ziegler concerned the offence of obstructing the highway, contrary to s.137 Highways Act 1980; and Northern Ireland Abortion Services concerned the legislative competence of the Northern Ireland Assembly to enact provisions that would prohibit certain activities within “ safe access zones ” adjacent to the premises where abortion services were provided. 97. Several of Ms Bolton’s submissions, based upon Northern Ireland Abortion Services , I consider to be wrong. For example, she argued that the case was authority for the proposition that Ziegler is not to be applied universally to cases concerning obstruction of the highway, “ and the approach is that set out by Lord Irvine in Jones , namely ‘the public have the right to use the public highway for such reasonable and usual activities as are consistent with the general public’s primary right to use the highway for purposes of passage and repassage’ ”. I reject that submission. Northern Ireland Abortion Services could not, and did not, overrule the authority of Ziegler on the proper interpretation of s.137. Lord Reed did not doubt the correctness of the Supreme Court’s decision in Ziegler as it applied to the offence of obstructing the highway, indeed he
95
Made with FlippingBook interactive PDF creator