A Critical Comparison of the laws of nuisance applicable in England and Wales with the laws of Mongolia

Contents



1.     
Introduction

1.1 Introduction to tort of nuisances

England and Wales
“The tort of nuisance was developed by the common law to
protect occupiers of land against an unlawful interference with the use or
enjoyment of that land” (Brien, 2014; Cornell University Law School, no date;
Horsey and Rackley, 2015a). There are two main categories of nuisance: Private
and public
(Wolf and Stanley, 2010; Howard et al, 2015; Jones, 2002; Giliker and
Beckwith, 2011
). However, “some
nuisances can be both public and private in certain circumstances where the
public nuisance substantially interferes with the use of an individual’s
adjoining land. This is known as a mixed
nuisance” and an example can be pollution of the river (Stewart, 2006). Moreover, as many public nuisance laws have
been replaced by statutes, individuals and the part of the public can sue for
nuisance under statutory nuisance (Wilde, 2015; Mothersole and Ridley, 1999).
Furthermore, “the rule in Ryland’s v
Fletcher
is a sub-species of the tort of nuisance” (Brien, 2014).
Mongolia
Mongolia has a civil law system; therefore, there is no
common law in Mongolia. As such, there are only statutory nuisances regulating
both private and public nuisance issues. But, actually, the relevant clauses of
various laws have no name as ‘nuisance’. They are in different forms of names
like ‘rights of neighbour’, ‘obligations of organisations to protect the
environment’, and so on. The main law containing rights of neighbours is the
Civil law of Mongolia while the Law about Protecting the Environment plays a
main role in the public related environmental adjustments. The distinction
between private and public nuisances also has not been described in any laws.
Clauses 134-141 of the Civil Law regulate rights of
neighbours. As the topic speaks itself, the law considers more of rights of
neighbours with the lack of statements about their obligations not to interfere
others. For public nuisance, there is a lack of complex adjustment as the
current laws contain environmental issues that may be relevant to public
nuisance separately. Generally, a good practice of using the regulations in
deciding the public nuisance is more in critique. Unlike England and Wales, the
database containing nuisance cases is not
worthy. In the online registration port of cases decided by courts (Online database
of Courts of Mongolia, 2016), there is no classification by nuisance. The only
related classifications are by ‘Land’ and ‘Property right’. However, when
studying those cases, no nuisance related case has been found. It shows that
the issue is not handled well in Mongolia, even the nuisance can be a very new
aspect that needs more clarification and
adjustment.
The reason why nuisance is not regulated well can be the
traditional lifestyle of Mongolia until the 1990s
influenced the adjustments and differing from the culture in England and Wales. Therefore, these differences, which
may influence the legal system, have been
explained in
Appendix 1, Appendix 2, and Appendix
3
.

1.2.Major
difference in laws applicable in England and Wales v Mongolia

The major distinction between laws of England &Wales
and Mongolia stays in the flexibility of
laws in England and Wales that the courts considered the important cases and
reflected on newly arisen legal aspects so that they could develop and improve
case laws. In Mongolia, the Civil law has permitted the courts to study the
similar situations in the neighbourhood in order to investigate the dispute
related to the neighbour’s right. However, there is no such case currently.
That is because nuisance is relatively a new aspect in
Mongolia, and, therefore, legal
environment for deciding nuisance issues is not clear enough. Researchers and
lawyers suggest improving the legal
environment by studying the best practice of developed countries, including
Germany and Australia (Battulga, 2010 and Electroconism, 2009), and establish the usage of precedents. That is because they
recognise the need for clearer
adjustment. Currently, nuisance and neighbour’s affect related issues are being
studied from the best practice of Australia and Germany because Mongolian legal
system is based on Roman-German laws and the mining field of Mongolia is
dominated by transnational corporations originated from Australia. It can be
seen from an example document translated from Australian guideline for mining “Best
practice and Sustainable development programme for Mining field: Air pollution,
noise and vibration” (Australian Government, Department of Resources, Energy
and Tourism, 2009). This document
contains detailed information about handling aspects of and controlling the effect of private and public nuisance through smell, dust, fume, gas, noise
and vibration caused by the mining
operation.   

1.3.Introduction
to the document

This essay comprises of 2 main sections for
private, and public and statutory nuisance. Laws applicable in England and
Wales have been compared to relevant laws and regulations in Mongolia as there
is no specific adjustment about the private and public nuisance in Mongolia. However,
some detailed and more specific regulations in England and Wales have been
shown in Appendixes as mentioned in persistent sections of the essay. That is
because the comparable adjustments were preferred to be included in body text
and those which are not comparable with Mongolian laws are included in
Appendixes.


2.     
Private
Nuisance

2.1.
Definition

England and Wales
Private Nuisance is a civil wrong “designed as an action
between neighbouring land-owners to protect a person’s interest in land being
adversely affected by the activities of neighbours” (Horsey and Rackley,
2015b). According to Heuston and Buckley (1996), “the distinguishing
characteristic of private nuisance is the imposition of liability as the result
of an act or omission whereby a person is annoyed, prejudiced or disturbed in
the employment of land”. “The disturbance may take the form of physical damage
to the land, or more usually, of the imposition of discomfort upon the occupier”
(Heuston and Buckley, 1996). Water, smoke, smell, fumes, gas, noise, heat, vibrations,
electricity, animals and vegetation are the common incursions. There are many
different case laws dedicated to both
general private nuisance aspects and those specific occurrences (please see
Appendix 6 for important cases). 
Mongolia
Clauses 134-141 of the sub-section 4 in the Civil Law of
Mongolia 2002 state the aspects related to the neighbour’s rights. In this law,
the neighbouring property has been
defined as any land or property bordering
to each other or being at a distance
where both neighbours can have an effect on each other. According to 139.2 of
the law, if it is difficult to define the border of neighbouring lands and when
neighbours cannot agree with each other,
the court has a right to decide (please see
Appendix 8 for comparative analysis in land related
characteristics of both countries). However, there is no word about nuisance in
the means of what laws of England and Wales state. The main principle is to let
neighbours respect each other’s rights. However, the law considers only serious
or too serious effect to the neighbour. If
someone is making noise, smell, dust or another effect
to his neighbour using his legally permitted licence,
the court will not find it as a nuisance
unless the effect is too serious (134.2
of the law).  
However, according to the sub-section 5 regulating the
rights of apartment owners (148.2.1 of the Civil law), every resident of the
apartment is obligated not to disturb or annoy others as well as not violating
the rights of all parties surrounding his/her property. It shows that every
resident in the apartment has an obligation not to interfere other people.
However, this kind of relative clauses has not been combined with the understanding of
neighbour’s right which may include both private and public nuisance. It can be
seen from the explanative order about the Rights of the Neighbour (High Court
of Mongolia, 2010) that the explanation refers only to the sub-section 4
‘Neighbour’s right’. Actually, the obligation of apartment users is relevant to
the rights of other users who are the neighbours. But, the law shows these
understanding as separate. The another concern is that the sub-section 4
relates to only countryside areas where the boundaries of households may be
difficult to define and the sub-section 5 relates to only apartment owners or
users. Thus, there is a gap that people living suburbs cities in their houses,
Mongolian ger (yurts) with fence have not
been included in the law. It can be seen from below analysis that the
disturbance or annoyance made by households and citizens are not considered as
legal duty while the same actions of legal entities do so.



2.2.
Adjustment

The similarity
In the laws of both countries, a private nuisance is adjusted. Both countries
recognise that the private nuisance will arise between two neighbours when one
annoyed or disturbed by another. The similarity
is shown in below section.
No.
England
and Wales
Mongolia
1
Private nuisance arises between two
neighbours when one disturbs, annoys or prejudices the another’s enjoyment of
the land by physically damaging the neighbour’s land or through incursions by
water, fume, gas, smoke, smell, heat, vibrations and so on (Heuston and
Buckley, 1996; Jones, 2015; Stewart, 2006).
The effect
has been explained by the High Court via its order (High Court of Mongolia,
2010), that the nuisance will arise when noise, vibration, smoke, lighting,
toxic gas, radio frequency, waste, radioactive
substance and pollution of land enters the boundary of the neighbour without
any possibility of control from the side of releasing neighbour (High Court,
2010).
2
According to Horsey and Rackley (2015a),
private nuisance arises between neighbours residing the next door or upstairs
and downstairs when one neighbour released smells, noise, vibrations or dust
in his own land and that affected the neighbour’s use of enjoyment of his/her
own land.
In the Civil law of Mongolia, there is no
distinction explained between private and public nuisances. However, the
section 4, clause 134 and 135 of the Civil law adjusts private nuisance issue
that the nuisance will arise when a neighbour having direct boundary with the
neighbour or locating at such a
distance where the neighbour can affect to the another by disturbing or
annoying the usage and enjoyment of his land or property (High Court, 2010).
The difference
Laws of England and Wales seems flexible and
friendly to residents because it considers every new occasion of a legal matter and reflect on that by issuing a case
law. But, laws of Mongolia consider only extremely serious effects and ignore full enjoyment of the
owner’s and user’s land or property. Although there are several laws that can
be related to the nuisance issue, they do not work as a complex legislation. As
such, courts have not been decided any private nuisance issue and both the
state and citizens do not know what to do if a private nuisance has arisen. Major
differences in adjustments have been analysed below.


No.
England
and Wales
Mongolia                                                   
Length of time
Nuisance is a continuing wrong; therefore,
interferences for a substantial length of time should be in place in order to
be counted as a nuisance (Heuston and
Buckley, 1996).
Both in the Civil law 2002 and its
explanation issued by the High Court 2010, there is no explanation about the
length of time (High Court, 2010). However, for making a claim if the
claimant has been affected by the nuisance,
there is no time limit to sue (State
Great Khural, 2002, Clause 141). 
Balanced interest
In private nuisance, courts balance
interests of two individuals in land-related issue and the conflict is
considered as a nuisance only if there
is a proof of damage. There must be given
and take between neighbours (Mothersole and Ridley, 1999; Giliker and
Beckwith, 2011) and the courts will seek to balance the competing interests
of the parties (Welch, no date; Stewart,
2006).
Even though there is no explanation about
the balanced interests of both parties, it is clear from the law clauses that
it considers the interests of both parties. It is shown in 134.2 of the Civil
law as stated that neighbours should respect each other’s rights. However,
The Civil law considers only those effects
that exceed the standard of normal usage or the facility that disturbs normal
living and working style (State Great Khural, 2002 and High Court of
Mongolia, 2010). Moreover, if the disturbing land or property user has a
legal permission to operate in such way, it is not a nuisance. The law says ‘The
person should not prohibit the operation of the neighbour if the neighbour
affects the person during his normal and necessary usage of own land or
property’ (135.1.1-135.1.2).  Thus,
Electroconism (2009) and Battulga (2010) consider that the law protects the right
of the defendant rather than balancing
the both interests. Proof of damage is not clearly stated. 
No.
England
and Wales
Mongolia                                                   
Defence
There are a number
of defenses to a nuisance action. As mentioned above, in the case of Sturges v Bridgeman (1879) LR 11 Ch D
852, the defendant could not be
defended for his prescription as his machinery noise was disturbing the
neighbour’s consulting rooms.
However, there can
be other types of

defences
. “If the acts which gave rise to the nuisance was authorised by statute, that
statutory authority will afford the defendant a
defence only if it can be shown that
the interference with the plaintiff’s rights was permitted by the wording of the statute”
(Cracknell, 2003). 
The Law Reform (Contributory Negligence)
Act 1945, Agreement to the existence of the nuisance, Act of God is the
defences unless the defendant adopted or continued the nuisance (Cracknell,
2003). 
A defence made by the statutory authority applies to both public
and private nuisance (Wikipedia, 2016). The example can be the case of
Allen v Gulf Oil Refining Ltd
(1980).
In this case, it was
impossible to construct and operate the refnery upon the site without
creating a nuisance (Swarbrick, 2015).
Wikipedia (2016):
After
it came into operation the claimant argued that it caused a nuisance through
the smell and noise. The
House of Lords held
that it had statutory authority to operate the refinery, saying “Parliament
can hardly be supposed to have intended the refinery to be nothing more than
a visual adornment to the landscape in an area of natural beauty”.
The statutory authority defence has
recently been subject to legislative consideration in the Planning Act 2008,
which expands the defence to over 14 types of infrastructure development
.  
The way how the claimant can be defended is not clear enough in the Civil,
Criminal and all relevant laws. That is because the explanative order by the
High court states that the trivial usage of the neighbour should not be
stopped or the claimant cannot sue if the effect
by the neighbour is not too serious. The word ‘too serious’ is not measurable,
but it actually defence all the possible nuisance makers.
According to the Civil law 2002, the person
can claim compensation in the form of money if the effect of the neighbour is
greater than the trivial necessary effect
level. But, the law has not explained what kind of effect can be and cannot be tolerated or limited in the case of a
nuisance (Battulga, 2010).
Moreover, Clause 24.1 of the Waste Law of
Mongolia 2012 (
State Great Khural, 2012) states that any guilty party should
reimburse the damage of health, environment, livestock and possessions
(including property) affected by unlawful operations violating Waste Law of
Mongolia. In the meaning of this clause itself, any damage incurred to any
person under the Waste law should be reimbursed. However, there is no case of
the court decision related to smelling related nuisance claimed by a
household or person against his neighbour.
In online registration port of cases
decided by courts (The Judicial General Council of Mongolia, 2016), there is
no section for nuisance in the classification by the type of the claims and therefore, it is quite difficult to find cases related to a nuisance (please see
Appendix
11
for translation of the case
classification). This case-showing mechanism needs improvement. However,
prior to that, the legal system should be improved so that precedents can be
used for nuisance related decision making as the law itself requires court
judgement for any not so clear dispute
between neighbours.
No.
England
and Wales
Mongolia                                                   
Remedy
There are three types of remedies, which are the basic ones. They are
an injunction, damages and abatement. An injunction is an order of a court,
where defendant tis required to stop his work that  caused the nuisance. Therefore, it is a powerful weapon. However, monetary damages are
common in nuisance redressing. The injunction
is used only if the damage is not possible to be repaired and the compensation
is not enough. The court examines the hardships to the parties (The Gale
Group, 2005).
Abatement
is a self-help remedy, which is available under limited circumstances.
For example, “dead tree limbs extending
dangerously over a neighbour’s house
may be removed by the
neighbour
in danger, after notifying the offending landowner
of the nuisance” (The Gale Group, 2005). If there is an immediate danger to
health and property, thee is no need for prior notification (The Gale Group,
2005).
Battulga (2010) suggested using the clause related to the property
ownership as stated in 106.2 of the Civil law for clarifying the nuisance
issue as this clause protects the land owner’s right by allowing him to
require the stoppage of acts that disturb or annoy the enjoyment and use of
the land or property. Also, he suggested making
clear the adjustment about the legal obligation of the defendant by
using the clause 497 of the law as it contains requirements to the guilty person to remedy the damage.
In
135.2 of civil law, the right of the claimant to be compensated by cash is
permitted when the neighbour annoys or disturbs him/her by exceeding the
permitted disturbance level. It shows an interference of a neighbour that
cause nuisance. 135.3 states that the
neighbour can require to avert any
erection or building of a neighbour if it damages his land seriously. This
clause shows a difference between Mongolian and English and Welsh laws
because any kind of branches or roots of trees cannot be seen as serious
damage in Mongolia. However, this kind of issue exists. For example, in some
agriculture areas, such as a a district
named as 61-n garam, locating suburbs
Ulaanbaatar, people plant vegetables. But, cucumber planting people consider
that potatoe growers affect their
harvest which can be considered as nuisance.
Unfortunately, laws do not adjust such conditions. It is difficult to prove
that potatoe growers affected cucumber
harvest due to ground water usage or any species as there is a lack of good
laboratories in Mongolia.
The clause 153.1
of the Criminal law can also be used. It states that the person who has
unreasonably affected the property of others is to be fined by the amount of
money 51-250 times the minimun labour
payment, or constrain to perform a work
for 251-500 hours, or detain the accused for 3-6 months, or imprison for up
to 3 years.

2.3.
Who can sue or to be sued

Similarity.
Both countries allow only registered people to sue for
nuisance. In England and Wales, only landowners or people who have legal right
can sue for nuisance (Stewart, 2006; Cracknell, 2003). But, in Mongolia, any
person can sue for nuisance if he/she has been affected by the nuisance no
matter if he/she does not own or have a legal right to that land or property, unlike England and Wales. However, the
right of people to live healthily and
safely is protected by the constitution which is dedicated for Mongolian
citizens only
(Baylagtsengel et al, 2012). In other words, both countries do not care homeless
or unregistered people (Please see
Appendix 5 for more information about homeless people
living on dump sides in Mongolia).
In both countries, the creator of the nuisance may be
sued no matter if he/she has any interest in the land from which the nuisance
flows (State Great Khural, 2002; Brien, 2014) Independent contractors,
landlords and tenants can be sued.
Difference.
In England and
Wales, it is more in criticism that a wife or children of a land owner cannot sue for the nuisance, if they
have no interest in the land, even when they were annoyed or disturbed by the neighbour’s unlawful
interference (Cracknell, 2003). But, according to new law, wife is able to sue
(Deakin, Johnston and Markesinis, 2008). In contrast, laws in Mongolia allow
every person to sue for nuisance if the land or property has been owned by a
person who has acquired and registered it in a lawful way (State Great Khural
of Mongolia, 2002). Therefore, wife or children can sue for nuisance even if
they do not have an interest in land.
Also, in the Civil law of Mongolia, there is no
specification about foreign country’s citizen temporarily living in Mongolia
and tenants of properties who are not owners of that property or land whether
they can sue or not. In Section 27 of the
Civil law, there are clauses about rights of tenants and landlords, but, no
adjustment about the nuisance. Thus,
there is no clearance what actions can take the tenant or foreigner who is
affected by the neighbour’s bad smell or loud noise. But, in the common laws of
England and Wales, tenants are considered as people who have legal rights to
sue for nuisance as they made an official contract so that they could obtain an
interest in land (Fleming, 1998). 
From one side, Civil law of Mongolia considers mainly
citizens of cities that they live in apartments. But, many people live in
private houses and gers. As the
regulation about nuisance is unclear to the public, affected people do not know
their rights and there is less probability to
succeed in nuisance as the judicial corruption and bureaucracy make such civil
wrongs unsuccessful (Mont, 2002; Anderson and Anderson LLP, 2009; Organisation
for Economic Co-Operation and Development, 2014). From the other side, all
the environment related laws focus on mining operation in the countryside or
the ecological problems only. They do not consider the environmental issue in
ger area or suburbs the cities.

2.4.
Types of damage that must be caused to make a civil
claim.

No.
England
and Wales
Mongolia                                                   
1
Property damage in nuisance can
arise
(Brien,
2014; Jones, 2002
):
a.      
by encroachment
on a neighbour’s land;
b.     
by direct
physical injury to a neighbour’s land;
c.      
acts interfering
with a neighbour’s enjoyment of his own property.
In private nuisance, damages for personal injuries are not
recoverable. The only recoverable harm is interference with an occupier’s use
or enjoyment of land” (
Brien, 2014).
However, such recovery for personal injury has been allowed under the rule in
Ryland’s v
Fletcher (1986)
LR 1 Ex
265; (1868) LR 3 HL 330. In this case, defendant is considered liable for the
damage of the claimant due to their negligence. The reservoir that the
defendant built was connected to the disused old coal workings which were
connected to the claimant’s mine. Due to the defendant’s negligence in
failing to block the shafts, the defendant became responsible to the flooding
to the claimant’s mine. Although the defendant was not negligent, it is
considered so (Jones, 2011).
 
Moreover,
there must be a proof of damage to become a
nuisance
(Mothersole and Ridley, 1999).
There
is no written distinction between types of damages. However, 137.1 of Civil
law state that the claimant must require the defendant to stop his operation
if the defendant has built any building by violating the land boundary as
soon as the work starts or prior to start. Otherwise, the claimant has a
legal obligation to accept the operation of the neighbour and the defendant
should pay compensation to the damaged neighbour, the claimant, every year.
So, it shows that any encroachment on a neighbour’s land is considered as
private nuisance.
In
135.2 of civil law, the right of the claimant to be compensated by cash is
permitted when the neighbour annoys or disturbs him/her by exceeding the
permitted disturbance level. 135.3 states that the neighbour can require to
avert any erection or building of a neighbour if it damages his land
seriously. This clause shows a difference between Mongolian and English and
Welsh laws because any kind of branches or roots of trees cannot be seen as
serious damage in Mongolia.
Unlike Ryland’s
v Fletcher (1986)
, 135.4 of Civil law of Mongolia clearly statutes that
the neighbour, who may become the claimant, has a right to require stopping
the operation of the neighbour if the operation is threatening to or not
complying with his interests in living and enjoying the land/property owner
or user.  135.5 of the law states that,
in the event of the hazard of falling an object or building to the neighbour’
land or property, the neighbour causing the hazard has a legal right to
require his neighbour to take all actions to eliminate the hazard. It shows
that the case of Ryland’s v Fletcher
(1986)
could have been decided differently if it has happened in Mongolia
so that the claimant would have been obligated to stop his neighbour to build
the reservoir before it resulted in flooding. 



2.5.
Aspects in criticism and other major differences

  England and Wales
Mongolia
Critique of
the laws of nuisance:
  
Cracknell
(2003) considers that the law of nuisance allows a person to use his land in
such a way as to injure another. That is because only the land owner or the
person has a legal right can sue for nuisance.
   According to Bodleian
Libraries (2015):
Another
critique is in the report that a very small percentage of cases are reported in a law report series (either printed or
online), only about 2%, due to the sheer number of cases being heard in England and Wales.  Those that are likely
to be reported are usually cases of legal importance. Since the growth of electronic sources, however, there have been unreported
transcripts available on all the major legal databases but these consist of
the judgement only.
  
In England and Wales, there are many
factors defining the private nuisance such as reasonableness, temporary or
trivial affect, malicious conduct, abnormal sensitivity of claimants, moving
to a nuisance and difficulties in bringing a nuisance. But, in Mongolia,
there is no such in-depth and detailed specification regarding these matters.
Thus, these specifications of England and Wales have been shown in


Appendix 8
together with
other relevant laws in Mongolia.
Critique of the Civil law clauses related
to the nuisance:
Battulga (2010) considers that the civil
law allows a person to use his land in such a way as to annoy or disturb the
neighbour by being protected by the clauses of the law. Those clauses within
the Section 4 of the Civil law has stated that the neighbour cannot prohibit
the neighbouring land-owner to stop
his/her necessary affect if it is
caused by the land or property’s trivial and necessary use and if it does not
disturb or affect the use of the neighbour with the level exceeding the
standard (State Great Khural, 2002).
In regard to the possibility of determining
the disturbance or annoyance level
according to the standard, there is a doubt. That is because the standards do
not clearly indicate the tolerable or intolerable levels of noise, vibration,
smell or any other effect.
Even,
there is no standard for noise,
vibration, smell and air pollution related to a nuisance (Otgonsuren, 2010; Ulaanbaatar Fresh Air Project, 2013;
Standardisation and Metrics Authority, 2010; Wikimon,
2014).
Moreover, the High Court explained the
clause 135.2 of the civil law that the nuisance and affect level can be evaluated by the court by comparing the issue
with similar operations of other neighbours in the environment (High Court of Mongolia, 2010). However, as mentioned
above, the standard does not say anything concrete about the noise, smell,
etc. level.
Sub-section 5 of the Civil law states that
apartment users should respect the right of their neighbours. But this clause
refers only to residents of apartments. Actually, only 40% of all residents
of Ulaanbaatar live in apartments and others live in private houses and
Mongolian ger accommodation suburb the city (Oyunbayar, 2013; Statistical
Office of the Capital City, 2014). Thus, for the 60% of the residents this
legal obligation is not relevant.
9.1.5 and 9.1.6 of the Waste Law of
Mongolia (State Great Khural, 2012) states that every citizen is obligated to
clean the waste around his/her living environment and must not to burn any
waste (it is common in Mongolia to burn fallen leaves and grass to clean the
land) in an open area. This clause is related to nuisance with bad smell of unclean
or burned waste. However, as the law indicated that only citizens are
obligated, many organizations burn it in the city, as the law has not
prohibited legal entities to do so.
In clause 16 of the law, it is prohibited
to establish a dump in areas with populated living area, protected water
resource, mineral reserves and any other legally forbidden places. Other
places like towns and rural areas are open to anybody to release waste and
establish a dump. In these places, any hazardous gas, fume and annoying smell
can arise. Even in suburbs the capital city Ulaanbaatar, there are three big
dumps famous with their scavengers live in waste area (Hun, 2009) (please see
Appendix 5 for brief information about dumps).



3. Public and Statutory Nuisance

3.1. Definition

England and Wales: Public nuisance
Public nuisance covers a number of interferences with
rights of the public at large, such as environmental issues and planning
violations. It is a criminal offence, where an act or omission materially
affects the comfort and convenience of life of people (Heuston and Buckley,
1996). However, it is a tort and the crime, at the same time (Cracknell, 2003).
“A public nuisance is when a person unreasonably interferes with a right that
the general public shares in common” (Cornell University Law School, no date).
In public nuisance, affected people claim in respect of
community-based activities rather than harm to their interest in land (Horsey
and Rackley, 2015a). This matter relates to publicly related rights rather than
an individual’s property rights. Moreover, public nuisance differs from private
nuisance by its limitation to the interests in land. In private nuisance,
person can claim for private nuisance only if he/she has an interest in the
affected land. But, in public nuisance, there is no such limitation. Also,
prescription is not a defence to a public nuisance, whereas it is a defence to
a private nuisance (Cracknell, 2003).
England and Wales: Statutory nuisance
As mentioned before, nuisance of tort is decided by
common law whereby some crimes are decided by statutes. In order to decide
public nuisances injurious or prejudicial to health, statutes are applied (Wilde, 2015). That is because the common law of
public nuisance has been replaced by statutory obligations to a large extent (Brien,
2014) and is imposed on individuals and public authorities. However, not every
statutory nuisance is a private or public nuisance (Heuston and Buckley,
1996).  Statutory nuisances are criminal
offence created by statute. Statutory nuisance
is specified in
part III of the
Environmental Protection Act 1990
(Wilde, 2015).
Mongolia
There is no special definition and requirement about
public nuisance in Mongolia. As mentioned before, there is no common law in Mongolia;
therefore, all laws are statutory. There are several laws that can be explained
in comparison with the laws in England and Wales regarding the public nuisance.
Some sections of Civil law (2002), Law about Commonly Owned Property in the
Building Dedicated for the Apartments (2003); Law about Forests (2003), Law
about the Sanitary (1998) and Law about Safety in Highway Traffic (2015)
describe public nuisance related adjustments. Generally, relevant clauses of
these laws are not combined to each other (Please see
Appendix 9 for detailed analysis of these law
requirements).



1.2.Widespread effect

England
and Wales
Mongolia
To distinguish the public nuisance from a
private nuisance, it must be shown that the affected persons constituting the
public or a section of the public (Brien, 2014). However, it is unclear how
many people can constitute the public (please see


 Appendix 7
for cases). “As the public nuisance is a
crime, and affects a class of people rather than an individual, claims are
brought by the 
Attorney General for England and Wales as a “relator” where it
represents the affected people” (Brien, 2014). Affected persons are allowed
to sue individually, but it is possible for them only if they have suffered
“special damage”. The
potential defendants will have a liability based on the criteria of being unreasonable.
But, it will be determined by looking only at the interference, not the
defendant’s actions (Please see
Appendix 10 for adjustments related to public and
statutory nuisance in England and Wales).
The
major issue is that the laws focus on general ecological problems, mining
related land issues in the countryside and apartment related ownership and
utilization issues in cities. But, the obligation of households and
individuals not to disturb, annoy or affect the public is not considered.
Thus, there is no specification about the widespread effect, even though
public nuisance issues are harming the health of the public in practice
(please see
Appendix
5

and
Appendix
9

for examples). Also, as there is no specification about individual’s affect
to the others, households and citizens are not obligated to remedy the damage
and/or to be fined once they have affected the public, while organisations
do. As the 3.2. of the Criminal law states that this law must not be used as
correlated adjustment, criminal law cannot be used in the occurrence of
public nuisance. Therefore, it can be seen that the public nuisance is not
defined, adjusted and enforced by law.

4.     
Conclusion

Private and public nuisance is considered as important in
England and Wales. In fact, the common law system and laws of nuisance allow
people to be protected by law and feel the full enjoyment and use of their
land. It is a good practice that courts consider the specific occasions which
are the important cases in law. That is because this flexibility and
consideration of the situations give more opportunity to reflect on that and
improve ones’ legislation and case laws. The long lasting history of England and
Wales also contributed to this improvement as well as the country’s history
that it has not been absorbed by any independent country so that they country
could lost the historical improvement of its legal system.
In contrast, Mongolia has announced its independence only
in 1911 from Qing dynasty that has absorbed Mongolia in 17th century
and ruled for over 200 years. Not long after this independence, the former
Soviet Union has started ruling Mongolia until the revolution held in 1989.
Thus, since 1990, Mongolia has developed its actual independent Constitution in
1992 and current laws were adopted. In other words, current laws of Mongolia
have a history of only 25 years and yet there are many things to improve.
It has been demonstrated in the essay by referencing to a
number of laws that are related to private and public nuisance. In general, the
legal environment for both public and private nuisances is not only
insufficient, but also it can be allowing nuisance to be hidden and affected
neighbours and the public. In the result, people just tolerate all the damage
by being unable to sue or to be protected by law. The example of the heavy air
pollution of the capital city Ulaanbaatar containing high level toxic chemicals
can be named. Moreover, the state organisations such as the Water Cleaning
Facility also contaminate the rivers hugely by releasing the waste water to the
Tuul River that is the drinking water of citizens and the livestock near the
river. Unfortunately, some laws dedicated for protecting the environment have
no specification about adverse effect of the polluted water, air, bad smell,
fume, toxic gas and all the nuisance related aspects. Therefore, many occurrences
are not being decided. Also, the citizens do not recognise that their operation
of burning coals that pollute the air is affecting the public, actually all 1.5
million residents of Ulaanbaatar city. For private nuisance, current Civil law
and other related laws consider only the countryside area and the effect of
mining companies’ operation. The disturbance, annoyance and interference of
people affecting the neighbours have not been criticised. As the law states
that only extremely serious effects should be considered as nuisance, there is
no possibility for people to be protected by law against any interference of
their neighbours. Thus, the legal environment must be improved for now. It is
good that researchers and lawyers have started studying the best practice of
Germany and Australia so that these countries’ nuisance related laws can be
adopted in Mongolia. Thus, this piece of work will also contribute to the
subject as it will be published by the author in Mongolian.  
In England and Wales, the distinction between
public and statutory nuisance is considered confusing. Also, the private
nuisance laws are in criticism that they are not consistent with current
improvement of other laws. These sorts of justifications seem the sign of
improvement. This is connected to the country’s history that it has been
improving the laws and it shows that the country will still be improving them.
It is the best practice of the country in contrast with Mongolia, where the
there is nothing to protect people from adverse effect of their neighbours as
well as the most polluting parties. Even the situation can be considered as an
emergency situation (air pollution and water pollution). But, the government
and parliament are still doing nothing to impose liability to the accused.  



Reference

1.        
Aghajanian, L.
(2015)
Fighting to breathe in Mongolia: As air pollution gets worse, maternal
health 
suffers. Available at:
http://projects.aljazeera.com/2015/12/mongolia-maternal-health/ (Accessed: 6 
 February 2016)
2.        
Altantsetseg, B.
(2008)
Observation report in summer camps where forest has been ruined by
humans.
 Olloo news [Online]. Available at:
http://archive.olloo.mn/modules.php?name=News&file=print&sid=850
11
(Accessed: 6 February 2016)
3.        
Anderson and
Anderson LLP (2009)
The Legal Environment for Litigation in Mongolia. Available at:
 http://www.anallp.com/the-legal-environment-for-litigation-in-mongolia/
(Accessed: 5 February 2016)
4.        
Australian
Government, Department of Resources, Energy and Tourism (2009)
Best practice and 
 Sustainable development programme for Mining field: Air pollution, noise and
vibration.
Available at: 
 http://industry.gov.au/resource/Programs/LPSD/Documents/AirborneContaminantsMongolian.pdf 
 (Accessed: 15 January 2016)
5.        
Battulga (2010) Regulation of Neighbour’s right in Civil
law of Mongolia
. Available at: 
 http://batuka85_mn.blog.gogo.mn/read/entry113366. (Accessed: 5 January 2016)
6.        
Baylagtsengel, D., Dugarmaa, A.,
Davkharbayar, Ts., Urnaa, B. and Oyunchimeg, J. (2012) 
Legal guideline:
Manual for citizen’s knowledge on legal aspects.
Available at: 
 http://resource3.sodonvision.com/courtservice/file/2014/2/ed61ciuthcu4uym1japdg1skm/Book-tanii%
20huuliin%20hutuch.pdf
(Accessed: 17 January 2016)
7.        
Bodleian Libraries (2015) United Kingdom Law: Case law.
Available at: http://ox.libguides.com/
c.php?g=422832&p=2887381 (Accessed:
26 January 2016)
8.        
Brien, M.O.
(2014)
Nuisance. Available at:
http://login.westlaw.co.uk/maf/wluk/app/document?
docguid=I4A8E24908BE411E29A7B89EFB9490176&context=9&crumb-action=replace&crumb-label
=Nuisance
(Accessed: 10 January 2016)
9.        
Conjecture Corporation (2016) What
is statutory law.
Available at:
http://www.wisegeek.com/what
-is-statutory-law.htm;
https://en.wikipedia.org/wiki/Primary_and_secondary_legislation#United_Kingdom.
 (Accessed: 15 December 2015)
10.    
Cornell
University Law School (no date) Nuisance.
Available at: https://www.law.cornell.edu/wex/
nuisance. (Accessed: 26 January
2016)
11.    
Cornell
University Law School (no date)
Tort. Available at:
(https://www.law.cornell.edu/wex/tort).
 (Accessed: 15 January 2016)
12.    
Cracknell, D.G.
(2003)
Obligations: The law of tort. 4th edn. London: HLT Group Ltd. 
13.    
Deakin,
Johnston, A. and Markesinis, B. (2008)
Markesinis and Deakin’s Tort Law. 6th edn. Oxford: 
 Oxford University Press.
14.    
Edwards, T.
(2015)
Mongolia’s booming Ulan Bator, world’s coldest capital, is choking on
smoke
Available at:
http://www.latimes.com/world/asia/la-fg-mongolia-air-pollution-20150515-story.html 
 (Accessed: 6 February 2016)
15.    
Electroconism
(2009) Comparison of legislation on
neighbour’s right of Germany and Mongolia
Available at: 
http://lctro.blog.gogo.mn/read/entry54806#yourcomment. (Accessed: 5
January 2016)
16.      eMongol
(no date) Mongolian Nomadic Life. Available
at: http://www.e-mongol.com/mongolia_
nomadiclife.htm (Accessed: 15 January
2016)
17.    
Eric and Bethany
(2016)
Winter air pollution. Available at:
https://juddsinmongolia.wordpress.com/ 
(Accessed: 6 February 2016)
18.     Ferguson
as cited by Wikipedia (no date) List of
largest empires.
Available at: https://en.wikipedia.org
/wiki/List_of_largest_empires#All_empires_at_their_greatest_extent
(Accessed: 15 January 2016)
19.    
Fleming, J.G.
(1998)
The law of torts. 9th edn. London: Sweet and Maxwell
Ltd.
20.    
Friends of the Earth (2008) Statutory
nuisance.
Available at: http://www.foe.co.uk/resource/local/
planning/resource/index.html.
(Accessed: 15 January 2016)
21.    
Giliker and
Beckwith (2011) Tort. 4th edn. London: Sweet and Maxwell Ltd.
22.    
Government of
Mongolia (2014)
Case of complain No.1406176757 about land usage in summer 
camping
areas. 1111 center of the Government of Mongolia
[Online]. Available
at: http://11-11.mn/ticket/
1406176757/ (Accessed: 6 February 2016)
23.    
Harris, P.
(2007)
“An Introduction to Law”, in Harris, P. (7) Liability in
English law: the law of tort.
 
Cambridge: Cambridge University Press, pp.
241-305. Digitisation of University of South Wales [Online]. 
Available
at: http://digitisation.southwales.ac.uk/southwales/bundles/5639ee724469ee296d000027?userId
=uV%2FjZtG6hJn0TK%2BPop%2BjBYW%2FrY4%3D&key=2054325381ea9efb1fbd825ed5ab8040ca44
2976cc9b37814ea1e46b29a17a4e
(Accessed: 5 January 2016)
24.    
Heuston, R.F.V.
and Buckley, R.A. (1996)
Salmond and Heuston on the Law of
Torts.
21st edn. London:
 Sweet and Maxwell Ltd.
25.    
High Court of
Mongolia (2010) Order about explaining
some sections and clauses of the Chapter 4 in
 the Civil law of Mongolia.
Available at: http://www.legalinfo.mn/law/details/176?lawid=176. (Accessed: 
 20 December 2015)
26.    
Horsey, K. and
Rackley, E. (2015a)
Tort law. 4th edn. Oxford: Oxford University Press. 
27.    
Horsey, K. and
Rackley, E. (2015b)
Torts. 13th edn. Oxford: Oxford University Press. 
28.    
Howard, D.,
Matthews, M., Morgan, J., Sullivan, J.O. and Tofaris, S. (2015)
Hepple and
Matthew’s Tort
 Law: Cases and Materials. Oxford: Hart Publishing Ltd.
29.Hun,
U. (2009)
Diploma work for Bachelor’s
degree:
Social group without
state registration.
Available 
at: https://www.academia.edu/10128796/%D0%91%D0%B0%D0%BA%D0%B0%D0%BB%D0%B0%
D0%B2%D1%80%D1%8B%D0%BD_%D0%B4%D0%B8%D0%BC%D0%BB%D0%BE%D0%BC%D
1%8B%D0%BD_%D0%B0%D0%B6%D0%B8%D0%BB_%D0%A5%D0%BE%D0%B3%D0%B8%D0
%B9%D0%BD_%D1%86%D1%8D%D0%B3_%D0%B4%D1%8D%D1%8D%D1%80%D1%85_%D1%
82%D3%A9%D1%80%D0%B3%D2%AF%D0%B9%D0%B4%D1%81%D1%8D%D0%BD_%D0%BD
%D0%B8%D0%B9%D0%B3%D0%BC%D0%B8%D0%B9%D0%BD_%D0%B1%D2%AF%D0%BB%
D1%8D%D0%B3
(Accessed: 17 January 2016)
30.    
Jones, M.A.
(2002)
Textbook on torts. 8th edn. Oxford: Oxford University
Press.
31.    
The Judicial
General Council of Mongolia (2016)
Online database of Judice of
Mongolia.
Available 
at: http://www.shuukh.mn/ (Accessed: 5 January 2016)
32.    
Ministry of the
Construction and City Planning (2013)
The risk of stopping the operation of
the 
central cleaning facility is facing. Available at:
http://www.mcud.gov.mn/pages/601 (Accessed: 28 January
 2016)
33.    
Mont, R.L.
(2002)
Some Means of Addressing Judicial Corruption in Mongolia. Available at: 
 http://www.opensocietyforum.mn/res_mat/Judicial%20Corruption%20in%20Mongolia.pdf
(Accessed: 5 
February 2016)
34.    
Mothersole, B.
and Ridley, 
A. (1999) A-Level Law in Action: Macmillan Law
Masters. 
2nd edn.
Google eBooks [Online]. Available at:
https://books.google.mn/booksid=bgW5AFyck_8C&pg=PA325&lpg=PA325&dq=what+is+the+difference
+between+servitude+and+nuisance&source=bl&ots=lr7TUTsVi6&sig=GgMXMVomUoJcl9PRXXoeN2G
zwnQ&hl=en&sa=X&ved=0ahUKEwiJ3Ljt7eDKAhXDshQKHbHIDQcQ6AEINjAF#v=onepage&q=wha
t%20is%20the%20difference%20between%20servitude%20and%20nuisance&f=false
(Accessed: 2 
February 2016)
35.    
Office for
National Statistics (2015) Mid-2014
Population Estimates: Population density of the 
United Kingdom; estimated
resident population
. Wikipedia [Online]. Available at:
https://en.wikipedia.
org/wiki/United_Kingdom (Accessed: 26 December 2015)
36.    
Organisation for
Economic Co-Operation and Development (2014)
Anti-Corruption
Reforms in 
Mongolia: Assessment and Recommendations Report. Available at:
http://www.oecd.org/corruption/anti-
bribery/MONGOLIA-MonitoringReport-EN.pdf
(Accessed: 5 February 2016)
37.    
Otgonsuren
(2010)
Noise exceeding the tolerance. News Agency [Online]. Available
at: 
http://www.news.mn/content/36084.shtml (Accessed: 25 January 2016)
38.    
Oyunbayar (2013)
Large number of moves causing problems. Available at: 
 http://www.assa.mn/content/10648.shtml?a=social  (Accessed: 16 January 2016)
39.    
Parliament UK (no date) Secondary
Legislation.
Available at: http://www.parliament.uk/business/
bills-and-legislation/secondary-legislation/
(Accessed: 15 December 2015)
40.    
Rheinstein, M.
(2016) Civil law. Encyclopaedia
Britannica [Online]. Available at: 
http://www.britannica.com/topic/civil-law-Romano-Germanic. (Accessed:
26 December 2015)
41.     Rosenberg (2015) Population
density.
Available at: http://geography.about.com/od/
populationgeography/a/popdensity.htm
(Accessed: 15 January 2016)
42.     Smil, V.
(2010) Why America is
 not a New Rome. Google eBooks [Online]. Available at: 
https://books.google.co.uk/booksid=jkhTtZbdc4sC&pg=PA62&lpg=PA62&dq=Mongol+Empire+33+
million+km%5E2&source=bl&ots=ELQeMDT6v6&sig=D6LQxsGJ24M9d_KHBJCQcxYhmx8&hl=en
&sa=X&ei=dt9RVNXgIoaryQT93YHADQ&redir_esc=y#v=onepage&q&f=false
(Accessed: 15 January 2016)
43.Standardisation
and Metrics Authority (2010) Brief
Information about 
Standards related to noise. Available at:
http://www.estandard.gov.mn/index.php?module=standart&cmd
=standart_desc&catid=403&id=219.
(Accessed: 5 January 2016)
44.    
State Great
Khural (1998)
The law about Sanitary. Available at:
http://www.legalinfo.mn/law/details/
53?lawid=53 (Accessed: 8 January 2016)
45.    
State Great
Khural (2000)
The law about fighting against boozing and carousing. Available at: 
 http://www.legalinfo.mn/law/details/55?lawid=55 (Accessed: 8 January 2016)
46.    
State Great
Khural (2006) The Law about Mineral
Resources
. Available at: http://legalinfo.mn/law/
details/63?lawid=63
(Accessed: 8 January 2016)
47.    
State Great
Khural (2006)
The Law about Toxic and Hazardous Chemicals. Available at: 
 http://legalinfo.mn/law/details/526?lawid=526 (Accessed: 16 January 2016)
48.    
State Great
Khural (2012) Waste Law of Mongolia.
Available at: http://legalinfo.mn/law/details/8666
?lawid=8666 (Accessed: 16
January 2016)
49.    
State Great
Khural (2015)
The law about safety in highway traffic. Available at:
http://www.legalinfo
.mn/law/details/11224?lawid=11224 (Accessed: 8 January
2016)
50.    
State Great
Khural of Mongolia (2002) Civil Law of
Mongolia
. Integrated system of legal 
information [Online]. Available at:
http://www.legalinfo.mn/law/details/299. (Accessed: 15 January 2016)
51. Statistical
Office of the Capital City (2014)  Provisi
on of apartments for Ulaanbaatar
residents
Available at: 
http://ubstat.mn/Upload/Reports/niisleliin_khun_amiin_oron_suutsnii_khangamj_2012_
ulaanbaatar_2013-04.pdf.
52.    
Stewart, W.J.
(2006)
Private Nuisance. Collins Dictionary of Law [Online]. Available
at: http://legal-
dictionary.thefreedictionary.com/Private+nuisance (Accessed:
21 January 2016)
53.     Swarbrick (2015)
Nuisance: ALLEN -V- GULF OIL REFINING LTD; HL 29 JAN 1980. Available
at: 
http://swarb.co.uk/allen-v-gulf-oil-refining-ltd-hl-29-jan-1980/ (Accessed:
6 January 2016)
54.     The Gale Group (2005) Nuisance. Encyclopedia
[Online]. Available at: http://www.encyclopedia.
com/topic/nuisance.aspx.  (Accessed:
18 January 2016)
55.     The National Archives (2016) UK Public General Acts. Available at: http://www.legislation.gov.uk/
ukpga
(Accessed: 18 January 2016)
56.    
The World Bank
(2012)
Curbing Air Pollution in Mongolia’s Capital. Available at: 
 http://www.worldbank.org/en/news/feature/2012/04/25/curbing-air-pollution-in-mongolia-capital 
(Accessed: 6 February 2016)
57.     Townslist (2016) The
largest list of UK towns and cities.
Available at: https://www.townslist.co.uk/ 
 (Accessed: 15 January 2016)
58.    
Trading
economics (2016) Rural population (% of
total population) in Mongolia
. Available at:  
http://www.tradingeconomics.com/mongolia/rural-population-percent-of-total-population-wb-data.html
(Accessed: 26 December 2015)
59. Turner,
T. (2013) What’s the difference between Snot and Bogeys? 
Google eBooks
[Online]. Available at:
&hl=en&sa=X&ei=dt9RVNXgIoaryQT93YHADQ&redir_esc=y#v=onepage&q=Mongol%20Empire
%2033%20million%20km%5E2&f=false.
(Accessed:
15
January 2016)
60.    
Ulaanbaatar area
commission (2011)
About improving the usage and protection of 
water resource. Available at:
http://ubregion.ub.gov.mn/index.php?option=com_content&task=view&id=
72&Itemid=70&catid=33
(Accessed: 6 February 2016)
61.    
Ulaanbaatar
Fresh Air Project (2013) Some
indicators about Environment and Social Protection 
with advise of World Bank.
Available at: http://baigal.ub.gov.mn/wp-content/uploads/MONGOLIA-
UBCAP-Greening-EMP-WB-COMMENTS-final-MON.docx.
(Accessed: 25 January 2016)
62.    
Ulaanbaatar Post
(2014)
Air Pollution in Ulaanbaatar, Mongolia.  Available at: 
 http://urbanemissions.blogspot.co.uk/2008/12/clean-air-analysis-for-ulaanbaatar.html
(Accessed: 6 
February 2016)
63.     Vajda (2009) ‘The Mongol Impact on World History’. Available at: https://www.youtube.com/watch
?v=Fs8zbaE4vb8
(Accessed: 15 January 2016)
64.    
Welch, R. (no date) General Principles of Law. Available at:
https://lrc.glam.ac.uk/site/NG4S722/01.
pdf (Accessed: 5 January 2016)
65.    
Welch, R. (no date) Laws of Nuisance 2015. Available at:
https://unilearn.
southwales.ac.uk/webapps/blackboard/content/contentWrapper.jsp?course_id=_103344_1&displayName
=Learning+Schedule&href=https%3A%2F%2Fatweb1.comp.glam.ac.uk%2FBB%2FLS%2Fgo.php%3Fm
%3DNG4S722_2015&cR2XilcGYOo=hDF5aSBAYPEu%2F9FdVwBwhYrbd%2FoF%2B0wZOIsoSqm
GfIE%3D.
(Accessed: 2 December 2015)
66.    
Wikimon (2014) Waste water with
toxic chemicals released by tanneries affect the neighbour families’ and
companies’ lands with their green toxic ingredients.
Available at: http://www.wikimon.mn/content/52450.shtml
(Accessed: 27 January 2016)
67. Wikipedia (2013) Sheep
farming in Wales.
Available at: https://en.wikipedia.org/wiki/Sheep_farming_in_Wales#Husbandry_and_economics
(Accessed: 15 January 2016)
68. Wikipedia (2016) Nuisance
in English law.
Available at:
https://en.wikipedia.org/wiki/Nuisance_in_English_law?&session-id=42411ebca658120f0f074af97894733e  (Accessed: 6 January 2016).
69. Wilde, M. (2015)
Statutory Nuisance. Available at:
(http://login.westlaw.co.uk/maf/wluk/app/document?docguid=I70DF3B90C20111E28E56926A0AD1314D&context=17&crumb-action=replace&crumb-label=Statutory%20nuisance).
(Accessed: 25 January 2016)
70.    
Wolf, S. and
Stanley, N. (2010)
Wolf and Stanley on Environmental law. Dawson era [Online].
Available at: https://www.dawsonera.com/abstract/9780203842546 (Accessed: 10
January 2016)
71.    
World Bank
(2016)
Population density (people per sq.km of land area). Available at:
http://data.worldbank.org/indicator/EN.POP.DNST (Accessed: 26 December 2015)



Appendixes

Appendix 1. Characteristics of both
countries that affect nuisance issues
England and Wales
In England and Wales, neighbour is relatively easy and
more in need to define in contrast with Mongolia as many people (63.47 million
people live in a territory of 240,000 square meters) live in cities and even
farmers use fence. Population density is 417 residents per square kilometre in
the UK in 2014 and 667 in England in 2015 (
Office for National Statistics, 2015). There are 48083 towns in the UK (Townslist, 2016). It is one of the most densely populated
countries in the world. The common (case) law system and nuisance related laws
have been developed for many years in England and Wales (Welch, no date). That
seems because of the country’s need in clear regulations of neighbour aspects
as the country has a long-time history in city development. It can be seen from
the evidence that the UK has 69 cities where 51 of them belong to England and 6
to Wales (
Office for National Statistics, 2015).  
Mongolia
In contrast, Mongolia is the least densely populated
country in the world (
Rosenberg, 2015).  Currently,  there are 3 cities and 21 centres of
provinces (towns), where people live by using fence. All the other areas do not
use fence. Thus, it is difficult to define the borders of lands to identify the
ownership of the land. The majority (70%) of the population started living in
the cities and towns since the revolution of 1989-1990. It means that the city
related issues, including nuisance, are becoming attentive only for last 25
years. The first document that clearly explained neighbour and nuisance has
been issued by the High Court of Mongolia only in 2010, where the document was
issued in the form of its order explaining the relevant clauses of the Civil
Law (
High Court of Mongolia, 2010).
These days, 30% of the population still lives in the
countryside where people do not use any fence or border. As population density
in the countryside is 1.9 people per square kilometre, it is clear that only
one family with 4 members live alone on the wide steppe of 4 square kilometre
land. Thus, they do not need to use fence. Stock animals grass by themselves
around home and sometimes they grass far than 10 kilometres per day and return
to home before sun sets. Unlike English and Welsh people, herders do not grow
grass on their land. They just use the natural grass. Thus, it is difficult to
define the border in the countryside as herders do not use particular fence for
their pasture livestock breeding. They use any land that they want to move to.
The local neighbours recognise each other’s chosen place and it is very common
that families use particular lands for summer, autumn, winter and spring by
continuing the usage of their ancestors that continued for many hundred years.
Every resident has a right to use the land for their pasture livestock breeding
unless the land has been licensed to be utilized for any special operation such
as mining, etc. This usage of land is more of culture and tradition rather than
any written law, even there is no law that require herders to use fence and
clear border of their ownership. Therefore, depending on the nature of
Mongolians lifestyle in rural areas and on the newly established city life in 3
cities and a few towns, the nuisance issue is a relatively new subject for
Mongolians (
Battulga, 2010).
The lifestyle and culture of both countries may have
influenced in legal environment and legal development. Major differences have
been shown in below table.

No.
England and Wales
Mongolia
1
Density of the population and need in
adjustment for neighbour relationships
One of the most densely populated countries in the
world with 417 people resident per square kilometre in 2014 (
Office for National Statistics, 2015).
The most sparsely populated country in the
world with 2 persons resident per square kilometre in 2014 (World Bank,
2016).
2
Territory and Population
      
56.06
million population in England and Wales (53 – England, 3 – Wales).
      
3
million populations in Mongolia.
      
Territory
of 0.24 million square meters, the 80th largest in the world.
      
Territory
of 1.5 million square meter, the 19th largest in the world.
      
The
country’s urban population is 10.3 million, the fourth largest in Europe.
      
All
the other people live in small towns where fence is used for farmers and any
households.
      
The
country’s urban population is 2 million constituting 70% of the population.
      
30%
of the population live in the countryside where no fence is used (Trading
economics, 2016).
      
Urban
lifestyle is dominated historically.
      
In
Wales, sheep farms dominate (80% of agriculture in Wales) and traditional
techniques of farming are allowed (
Wikipedia, 2013). Farmers grow grass on the meadows
and buy hay from external sources as well. But, Mongolians use the wild grass
and moves several times a year to choose appropriate place for their
livestock in terms of pasture and weather condition. That is because the
weather in Mongolia differs widely.
People have never been facing any urban
issues, especially nuisance. Even it was happy to live together with other
1-3 families in a wide steppe because herding livestock is such a hard work
in an extreme weather country (+30°C in the summer, -30°C in the winter) and
more labour is always needed.
In 1971, 55-60% of population lived in the
countryside, but, now, only 28.8% reside in the countryside (837000 people).
Therefore, the nuisance issue which is related to the neighbouring property
and land is very new to Mongolians.
Appendix 2. Historical background
For 3000 years, Mongolians were living in a nomadic
lifestyle where people live in movable accommodation, a Mongolian ger, and move
their camping several times a year on the grounds with no fence (
http://www.e-mongol.com/mongolia_nomadiclife.htm). Pastoral cattle breeding were the main
labour. This tradition remains for 30% of the total population where only 1.9
person lives in 1 km2 (
Trading economics, 2016).
Historical difference of both countries that may have
influenced in legal environment is shown below.
Britain
Mongolia
Roman conquest beginned in 43 AD and ruled
southern Britain for 400 years.
Khun (wrongly written as Xiongnu) Empire,
former Mongolia, was established in 209 BC and continued until 93 AD.
Most of the regions settled by Anglo-Saxons
became unified as the United Kingdom in 10th century.
There were dividable units of Mongolians in
10th century and had wars with each other. In 1206, Mongol Empire
is established again by uniting all Mongolian tribes.
Between 10th
and 21th century, England, Wales and Scotland had wars, but they were united
many times. With the founding of the 
Royal Society in 1660, science was greatly
encouraged. In 1707, they are united. In 1922, the British Empire reached its
peak. However, the country absorbed many of the weak countries of Africa and
Australia. But, as it has not been absorbed by any other country until today,
the legal system is developed constantly.   
The Mongol Empire reached its peak in 1279. It absorbed the most powerful empires in
the world including current China, former Khoresm Empire (current middle east
countries) and most of European countries such as Russia, Germany, Poland,
Turkey, Hungary, etc. The empire brought century long peace across Eurasia (
Vajda, 2009). 
British empire that it overtook the
Mongolian record and had 33.7 million km2 area and 22.6% of the
world land area
(Ferguson as cited by Wikipedia, no date).
The power of former Mongol Empire in 13th
century that it had 33.0 million km2 area and 22.29% of world land
(
Turner, 2013; Smil, 2010)
Common law is the oldest source of law in
England and Wales. In 1066, local rules and customs were applied and
travelling justices heard cases around the country. Over time, good rules and
customs applied throughout the country and bad rules were disregarded. These
principles became common to all – Common law. The nuisance issues were
decided by those courts and therefore the laws developed well. Today, common
law consists of a body precedents built up from the decisions applied by the
courts of Common law.
Great Government (Ikh Zasag) Law of Great
Mongolian Empire (1206) stated that “nobody should touch any property of the
person died” and “the neighbouring pasture (grass) should not be disturbed by
anybody”. There was a separate law regarding the pasture as the nomads lived
in the countryside based on pasture livestock breeding. In other words, the
nuisance issue was arising only for the pasture area and it was not possible
to have nuisance law dedicated for people as the time often involved wars.
But, as the country has been absorbed by other empires since 17th
century, the law system has been removed. The current legal system
established since the Constitution 1992. Like historically, there was no
system that courts hear cases and develops new rules or laws. Courts were
hearing cases and deciding according to Great Government Law 1206 and the law
was developed only by Great Meeting (a type of Parliament under the King).
For 3000 years, Mongolians were living in a nomadic
lifestyle where people live in movable accommodation, a Mongolian ger, and move
their camping several times a year on the grounds with no fence (eMongol
, no date). Pastoral cattle breeding were the main
labour. This tradition remains for 30% of the total population where only 1.9
person lives in 1 km2 (
Trading economics, 2016). Even though there were
many cities and king’s palaces throughout the territory of Mongolian Empire
between 13th and 17th century, people were continuing the
nomadic lifestyle. However, the country lost its independence to Qing dynasty,
former China, in late 17th century until 1911. Thanks to
independence related revolution continued between 1911 and 1921, Mongolia could
obtain its independence in 1911. However, between 1924 and 1989, Russia started
controlling the country in the form of Soviet Union.  Only in 1956, Mongolia’s independence was
recognised by the United Nations. Only in 1990, the country could become fully
independent from China and Russia. Therefore, the legal system including the
constitution is very young and the legal system is improving. Between 17th
and 20th century, the country lost its numerous cities and King
palaces by being disturbed by absorbed countries. 
 Appendix 3. Introduction about legal systems of both countries
First of all, the nature of the legal system in England
and Wales versus Mongolian legal system needs to be understood. The difference
is basically about common law system in England and Civil law system in
Mongolia where similarity is in primary and secondary legislation in both
systems.
 
In England and Wales, there are statutory laws, common
laws, equity and statutory instruments (
Welch, no date). Parliament issue general laws (parliament
acts), named as statutory laws or primary legislation, which sometimes delegate
power to implement and administer the requirements to the executive agencies
where they develop secondary legislation that specify the meaning of those
general laws (
Welch, no date). Secondary legislation includes statutory instruments in the form of
regulations, rules and orders; byelaws; special procedure orders; hybrid
instruments and Church of England measurements (
The National Archives, 2016; Parliament UK, no date). 
Under common laws, case laws are issued by judges to decide certain
cases based on precedents and they interpret the general laws (
The National Archives, 2016; Parliament UK, no date). In this way, it seems like the England
legislation is friendly to its citizens and individuals that the case laws
allow the country to consider the situation of its people based on every case
set before the court and judge the current laws and regulations if they observe
gaps in laws that they cannot be appropriate for deciding a particular case.
Judges issue a new case law if they observed a new principally different situation.
It presents that the country prefers the rights of persons and strives to
protect the human right and health no matter what the current general laws
regulate.
However, in Mongolia, the situation is different. As
there are no case laws, only primary laws
exist and, in some way, they are generic and are not appropriate for certain
cases. Generally, the country’s legal system is based on civil law system
originated from Romano-German laws (
http://www.britannica.com/topic/civil-law-Romano-Germanic) where only codified primary laws are
followed throughout the country when, sometimes, courts publish explanations to
certain laws. Mongolian civil law 2002 is based on German civil law code (BGB –
Civil Law Book) which came into force in 1900 (
https://en.wikipedia.org/wiki/Law_of_Germany#Administrative_civil_law). Although the law in Germany has changed
many times, Mongolian law remains using the content of the earlier version
which was in force before the constitution developed in 1949 (
https://en.wikipedia.org/wiki/List_of_national_legal_systems; https://en.wikipedia.org/wiki/Law_of_Germany). There is no case law and equity in Mongolia.
Judges have no right to decide cases based on precedents and to issue a case
law. But, there are secondary laws that specify requirements on how to comply
with laws. They are in the form of rules and procedures.
In summary, the main difference in both systems is that codified
statutes dominate in Civil law system while the Common law system recognises
the importance of case laws (
https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/). It results in efficiency of laws in terms of serving and protecting the people.
However, there is also similarity that
both systems have primary and secondary legislation where primary laws are
issued by the parliament and secondary laws are made by sub-sequent responsible bodies
(The National Archives, 2016; Parliament UK, no date) (Please see Appendix 1 for introduction about different lifestyles
of countries that influence the nuisance issues).
Appendix 4. Statutes that regulate nuisance in England
and Wales
The Environmental Protection Act 1990, the Water
Industry Act 1991, the Clean Air Act 1993 and
the Noise Act 1996 in relation to complaints arising out
of environmental pollution and the 
Planning Act 2008 are related to planning decisions which
adversely affect the rights of occupiers (Brien, 2014). As with public
nuisance, statutory control has regulated duties between neighbours to a large
extent. For example, the refusal of planning permission may prevent one
occupier of land from interfering with the rights of his neighbour, e.g. the
right to light. In some circumstances the tort of nuisance may also amount to
harassment and so be covered by the 
Protection from Harassment Act 1997. The Act consolidates a range of statutory
nuisances established by the Public Health Acts passed between 1875 and 1976
and the 
Control of Pollution Act 1974. Under Pt. III of the Environmental Protection Act
1990
, local authorities are empowered to take
action in respect of activities which constitute statutory nuisances. Other
relevant acts are shown in below table.
No
Acts and their
specifications about nuisance
1
Renting
Homes (Wales) Act 2016. Part 3 states provision applying to all occupation
contracts including the chapter 7 for Anti-social behavious and other
prohibited conduct. The requirements for contract-holders have been stated as
they should consider and avoid nuisance.
2
Deregulation
Act 2015 c. 20. The environment etc.
s. 58
Household waste: de-criminalisation
 . Under this act, requirements
for the person not to make nuisance by his/her waste have been stated.
3
Anti-social
Behaviour, Crime and Policing Act 2014 c. 12. Requirements for landlords and
tenants regarding the nuisance issue have been set.
4
London
Local Authorities and Transport for London Act 2013 c. v Part 5 for charging
points for electric vehicles. Nuisance or a danger to users of a highway or a
public off-street car park has been adjusted.
5
Local
Government Byelaws (Wales) Act 2012 anaw. 2 Schedule 1 Lists of byelaw making
powers
Part 1 BYELAWS NOT REQUIRING CONFIRMATION,
para. 1.
Rights and obligations of county council and county borough council related
to prevention and adjustment of nuisance have been set. Many clauses are
related to the Public Health Act 1936.
6
Legal
Aid, Sentencing and Punishment of Offenders Act 2012 c. 10. Requirements
about injunctions for nuisance arising from environmental pollution have been
determined.
7
London
Olympic Games and Paralympic Games (Amendment) Act 2011 c. 22. Explanatory
Note
para. 1.
Nuisance is considered to be considered and prevented durinh the operation of
olympic games.
8
Education
Act 2011 c. 2, Schedule 13 16 TO 19 Academies and alternative provision
academies: consequential amendments.
Para. 8.
Nuisance or disturbance on educational premises has been identified in
section 85A.
9
Police
Reform and Social Responsibility Act 2011 c. 13. Explanatory Note,
para. 1.
Provisions about licensing in terms of controlling noise nuisance and public
nuisance have been set in conjunction with Licensing Act 2003
.
10
Crime
Reduction Act 2006. Rights of local authorities in the case of alcohol
related nuisance have been identified. Alcohol Disorder Zones enable local
authorities to put in place a number of steps to reduce the nuisance and disorder, and also to impose
charges on premises and clubs which supply alcohol within an Alcohol Disorder
Zone.
11
Waste
(Wales) Measure 2010 c. 08. s. 1 Charges for single use carrier bags:
destination . The collection, management, treatment or disposal of waste
in conjunction with protecting or improving the environment in relation to
pollution or nuisances
have been regulated.
12
Crime
and Security Act 2010 c. 17.  Explanatory
Note,
para. 3.
Public nuisance is considered as one of actions to be taken for preventing of
crima and disorder
.
13
Flood
and Water Management Act 2010 c. 29, Explanatory Note,
para. 3.
The owner of the building can be required to carry out a work of the
condition is to be prejudicial to health or a nuisance.
14
Policing
and Crime Act 2009 c. 26. Explanatory Note,
para. 2.
  Cases
that may cause nuisance have been explained with possible penalties.
15
Climate
Change Act 2008 c. 27, Schedule 6 Charges for single use carrier bags, Part 1
Powers to make regulations about charges.
Para. 4A
Destination of proceeds – Wales
. Protection or
improvement of the environment in relation to pollution or nuisances
has been explained.
Appendix 5.
Vulnerable group in Mongolia (people live on dump side)
In Mongolia, there are many people who have no official
registration in state due to their
homeless situation. For example, there are a specific group of people who live
on the site of garbage dump and live on the food they find from the waste
collected from the landed trash in dumps. Some of them earn a little money by
collecting and selling tins and bottles to recycling companies.
A dump named “Ulaanchuluut” covering 19000 m2 lands
where 330 ton waste is collected and landed every day is the biggest in
Ulaanbaatar city (Hun, 2009).  In the
research conducted by Hun (2009), it has mentioned that people find the toxic
gas, fume, bad smell and dangerous environment as difficulties in this
environment. People are at risk of getting injured due to their own actions for
reaching the new waste collecting truck before their competitors to find new
waste because, only this way, they can find something new. For these people,
there is no law for nuisance and they even do not imagine a life where they can
live healthy and safe. This situation may seem unbelievable, but this is the
real situation in 21st century in economically weak countries like
Mongolia. The difference between rich and poor people is enormous.  
Picture. People living in “Ulaanchuluut” dump where
around 5000 people live.





















Appendix 6.
Cases: Private nuisance
England and Wales
Damage
Damages for personal injuries are not recoverable in an
action alleging private nuisance because the only harm recognised in private
nuisance is interference with an occupier’s use or enjoyment of land (
Brien, 2014).
However, such recovery for personal injury has been allowed under the rule in Ryland’s v Fletcher (1986) LR 1 Ex 265;
(1868) LR 3 HL 330.
Followings are the cases related
to the property damage in nuisance
(Brien,
2014; Jones, 2002
):
a.   
by encroachment on
a neighbour’s land, e.g. by tree branches or roots (Smith v Giddy (1904) 2 KB 448; Davey
v Harrow Corporation (1958)
1 QB 60);
b.    by direct physical injury to a neighbour’s land,
e.g. by flooding (Sedleigh-Denfield v
O’Collaghan (1940) AC 880
), vibration (Hoare
& Co. v McAlpine (1923)
1 Ch 167), collapse of neighbouring buildings (Wringe v Cohen (1940) 1 KB 229) or
noxious fumes which damage vegetation (St
Helens Smelting Co. v Tipping (1865)
11 HL Cas 642); or
c.    acts interfering with a neighbour’s enjoyment of
his own property, e.g. through smells (Bone
v Seal (1975)
1 All ER 787), vibration, noise (Halsey v Esso Petroleum Co. Ltd (1961) 2 All ER 145; Leeman v Montagu (1936) 2 All ER 1677),
using premises as a brothel (Thomson-Schwab
v Costaki (1965)
1 WLR 335) or a sex shop (Laws v Florinplace Ltd (1981) 1 All ER 659).
The example of
encroachment on a neighbour’s land can be Delaware
Mansions Ltd v Westminster City Council
(2001) that the claimant’s flats
were cracked by the root of neighbour’s tree as a nuisance. Also, Davey v Harrow Corp (1958) is a case
where branches or roots of trees caused damage to a neighbour’s land as an
action of a nuisance. In cases involving
encroachment, the law will presume damage.
Examples of how property damage can
occur as a result of nuisance include:
·        
The
occupier of a house was liable for allowing the continuance on his premises of
an artificial mound of earth which caused a nuisance to a neighbour, even
though it had been put there before he took possession:
Broder
v Saillard (1875-76)
L.R. 2
Ch. D. 692
.
·        
Where
an owner of land for his own convenience diverts or interferes with the course
of a stream he will prima facie be liable if an overflow should take place and
damage his neighbour’s land: 
Sedleigh-Denfield
v O’Callagan
(Trustees for St Joseph’s Society for
Foreign Missions) (1940) A.C. 880
.
·        
If
trees encroach, whether by branches or roots, and cause damage, an action for
nuisance will lie: 
Davey
v Harrow Corp (1958)
1 Q.B.
60
. Delaware
Mansions Ltd v Westminster City Council (2001)
UKHL 55; (2002)
1 A.C. 321
 where it was held that an action will lie despite the fact that the
damage occurred before the claimant freeholder acquired the freehold.
·        
A
landowner who knows or ought to know of the potential danger to neighbours
caused by natural deterioration of his property is liable in nuisance if he
fails to take reasonable steps to avert such a danger: 
Leakey
v National Trust for Places of Historic Interest or Natural Beauty (1980)
Q.B. 485
.
·        
If a
landowner knows or ought to know that their property may cease to support
another’s, they are required to take reasonable precautions or they will be
liable:
Holbeck
Hall Hotel Ltd v Scarborough BC (2000)
Q.B. 836
.
·        
Excess
vibration caused by the defendant’s demolition works: 
Hiscox
Syndicates Ltd v Pinnacle Ltd (2008) EWHC 145 (Ch); (2008) 5 E.G. 166 (C.S.).
·        
A local
authority was found liable for flood damage caused to a property when drains it
had installed in a road, known to be a high flood risk, had become blocked: 
Vernon
Knight Associates v Cornwall Council (2013)
EWCA Civ 950
. But, in  Lambert
v Barratt Homes Ltd (2010) EWCA Civ 681; (2010) B.L.R. 527
, it was held that it was not fair, just or
reasonable to impose on a local authority a duty to carry out and pay for
relief work to an existing drainage system which had been blocked by a
developer and caused water to accumulate on the local authority’s land and
subsequently damaged nearby properties.
In cases involving direct
physical injury to neighbouring land, actual and not potential damage is
essential to find a claim in nuisance.
Sedleigh-Denfield v O’Callagan (Trustees for St Joseph’s Society for Foreign
Missions) (1940)
A.C. 880
.
A local authority was found liable for flood damage caused to a property when
drains it had installed in a road, known to be a high flood risk, had become
blocked: 
Vernon Knight Associates v Cornwall
Council (2013)
EWCA Civ 950
.
But
Lambert v Barratt Homes Ltd (2010) EWCA
Civ 681; (2010) B.L.R. 527
where it was held that
it was not fair, just or reasonable to impose on a local authority a duty to
carry out and pay for relief work to an existing drainage system which had been
blocked by a developer and caused water to accumulate on the local authority’s
land and subsequently damaged nearby properties.
People having interests in land can sue.
Hunter and others v Canary Wharf Ltd, Hunter
and others v London Docklands Corporation (1997)
Further, in Hunter v Canary Wharf Ltd (1996) 2 W.L.R. 348, Pill L.J. held
(overruling the judge at first instance): ” A substantial link between the
person enjoying the use and the land on which he or she is enjoying it is
essential but, in my judgment, occupation of property, as a home, does confer upon
the occupant a capacity to sue in private nuisance. “
However, the House of Lords firmly rejected this
approach in 
Hunter v Canary Wharf Ltd (1997) A.C. 655and overruled Khorasandjian in so far as it decided
that a mere licensee could sue in private nuisance.
Wife or children of the land owner cannot sue if they have no interest
in land
Malone v Laskey (1907)
2 K.B. 141 where the wife could not sue for nuisance
even though the vibration of the neighbour’s machinery from the adjacent premises
caused fall of the water cistern off the wall while the wife was using the
lavatory. 
No defence for moving to a nuisance.
Jones v Powell (1629) is a case where a brewery made
stinking vapors waft to neighbours’
property, damaging his papers. Because he was a landowner, the neighbour sued
in nuisance for this damage. But Whitelocke
J, speaking for the Court of the King’s Bench, said that because the water
supply was contaminated, it was better that the neighbour’s documents were
risked. He said “it is better that
they should be spoiled than that the common
wealth stand in need of good
liquor.” Nowadays, interfering with neighbours’ property is not looked
upon so kindly. Nuisance deals with all kinds of things that spoil a
landowner’s enjoyment of his property.
Difficulty
of the application of laws.
St Helens Smelting Co v Tipping (1865) 11 HL 642. In this case, claimants bought an
estate in a manufacturing area of town where the defendant operated a copper
smelting works. Even though the claimant has bought a property in a previously
existing nuisance, the court held that there is no defence.
The child had a right to restrain.
Khorasandjian v Bush (1993) Q.B. 727. It was held that,
notwithstanding Malone, a child of the owner of the property had the right to
restrain harassing telephone calls to the house.



Mongolia
There
is no case registered. In the online search system of cases previously decided
by courts (
The Judicial General Council
of Mongolia, 2016
) the
cases related to the land include only disputes about land ownership. There are
no cases about nuisance. Even the category of cases in civil disputes contain
only cases related to tenancy agreement of the property, but there is no
section for neighbour’s rights that can be relevant to nuisance (
The Judicial General Council of Mongolia, 2016). In the category of cases in administration
issues, there is a sub-section “Land”. But, the content is only about ownership
related issues or disputes about land certificate, etc. (
The Judicial General Council of Mongolia, 2016). It shows that the country should improve
the legal aspects in regard to Nuisance issues.
In 135.2 of civil
law, the right of the claimant to be compensated by cash is permitted when the
neighbour annoys or disturbs him/her by exceeding the permitted disturbance
level. It shows an interference of a neighbour that cause nuisance. 135.3
states that the neighbour can require to avert any erection or building of a
neighbour if it damages his land seriously. This clause shows a difference
between Mongolian and English and Welsh laws because any kind of branches or
roots of trees cannot be seen as serious damage in Mongolia. However, this kind
of issue exists. For example, in some agriculture areas, such as a district
named as 61-n garam, locating suburbs Ulaanbaatar, people plant vegetables.
But, cucumber planting people consider that potatoes growers affect their
harvest which can be considered as nuisance. Unfortunately, laws do not adjust
such conditions. It is difficult to prove that potatoes growers affected
cucumber harvest due to ground water usage or any species as there is a lack of
good laboratories in Mongolia.
Appendix
7.
Cases: Public Nuisance
Proving common law public nuisance.
For a public
nuisance to be established, the prosecution must prove that the acts complained
of affected a considerable number of persons or a section of the public and
actual rather than potential danger or risk must be proved. In
R.
v Madden (Michael John) (1975)
1 W.L.R. 1379
, the
defendant made a 999 telephone call alleging that a large bomb had been placed
in a local steel works, clearly intending the message to be acted upon. The
telephonist informed the police and the telephone engineer in order that the
call might be traced; she took no other action. The police informed the
security officer of the steel works, who then organised a search of the works
by eight members of the security staff for about an hour until it became clear
that the telephone call was a hoax. There was no evidence that anyone other
than the telephone staff, security men and police were affected or took any
action as a result of the hoax call. The defendant was convicted on indictment
of committing a public nuisance after the recorder had directed the jury to
consider whether the public were likely to be affected by such a call as
distinct from whether they were in fact so affected.
Allowing the appeal against conviction, the Court
of Appeal held that actual danger or risk to the comfort of the public was a
necessary ingredient of the offence and accordingly the jury were misdirected.
In addition, there was no evidence that the public had been so affected.
In Attorney-General
v PYA Quarries (1957)
All ER 894, the defendants argued the persons
affected by the blasting operations at their quarry were not sufficiently
numerous to constitute a section of the public. The only persons affected by
their blasting operations, dust and vibrations created thereby, were the
residents who lived close to the quarry. 
It shows that there should be a widespread effect to become a public
nuisance. In this case, claimants argued that they could have claimed, at
least, for a private nuisance. In addition, the claimants should establish that
he/she suffered damage over and above the annoyance and inconvenience suffered
by the public at large. The test for the required size of a “class”
was also discussed in Attorney-General
v PYA Quarries Ltd
, with the court concluding that the test was whether the
nuisance was “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” (Stewart, 2006). 
Central to the
concept of public nuisance is common injury to members of the public, and an
individual single act could not fulfil the requirement of endangering the
comfort of the public as a whole and obstructing the exercise or enjoyment of
their rights. For example, a single act of soliciting a woman for prostitution
within a recognised vice area by a male on foot could not amount to the common
law offence of public nuisance:
DPP
v Fearon (2010)
EWHC
340 (Admin); (2010) 2 Cr. App. R. 22
. But, in R.
(on the application of Hope & Glory Public House Ltd) v City of Westminster
Magistrates’ Court (2009) EWHC 1996 (Admin); (2010) A.C.D. 12
, it was held that a public nuisance did not
need to be very indiscriminate or widespread to amount to a public nuisance; it
simply needed to be sufficiently widespread and sufficiently indiscriminate to
amount to more than a private nuisance.
Claims by individuals 
For individuals to
bring a claim in public nuisance, they must prove that they have suffered
special damage over and above the common injury suffered by the public at
large. Importantly, and unlike the requirement in private nuisance, there is no
requirement for a claimant to have a proprietary interest in the land affected
by the unlawful interference:
Colour
Quest Ltd v Total Downstream UK Plc (2009)
EWHC 540 (Comm); (2009)
2 Lloyd’s Rep. 1
, where
it was held that whilst public nuisance embraced claims of those who complained
of an interference with their use and enjoyment of land it was not confined to
such claims. There was no requirement for a claimant to have a proprietary
interest although that might be relevant to the issue whether the claimant’s
damage was special in the sense of being particular, direct and substantial.
Highway.
There is a considerable case
law concerned with public nuisance and the highway. It is a public nuisance to
obstruct the highway or to create a danger on, or close to, the highway.
If the highway is unreasonably
obstructed, it is enough to cause a public nuisance. However, not every
occasion of a person left a vehicle stationary on the road for a period of time
is counted as public nuisance. But, Dymond
v Pearce (1972)
is the case showing a liability of a defendant in public nuisance.
The lorry driver has left his big truck by parking on the road with parking
lights.  But, the motorcyclist collided
with the lorry. In this case, the driver of the lorry was committed to the
public nuisance for he has left the lorry on the highway. But, it is not
related to the injury of motorcyclist as it was not foreseeable.
Another case is that the
defendant’s theatre made a public nuisance where the queue waiting to get into
the theatre made the claimant difficult to gain access to his premises. This is
the case of Barber v Penley (1983)
(Cracknell, 2003) and it shows a temporary obstruction on the highway can
become a public nuisance.
Because of the wide definition given, there are a large
range of issues which can be dealt with through public nuisance, including
picketing on a road, as in 
Thomas v NUM, blocking
a canal, as in 
Rose v Miles, or disrupting traffic by queuing in a
road, as in 
Lyons v Gulliver. 
Differing characteristic from the private
nuisance.
A significant difference between private and public
nuisance is that under public, one can claim for personal injuries as well as
damage to property. Another difference is that public nuisance is primarily a
crime; it only becomes a tort if the claimant can prove that they suffered
“special damage” over and above the effects on the other affected
people in the “class”
(Stewart, W.J., 2006).
  1. Causing considerable disruption and cost by threatening
    to jump from a motorway bridge: R. v Dallinger (Eric Charles) (2012)
    EWCA Crim 1284; (2013) 1 Cr.
    App. R. (S.) 38. The motorway had to be closed which led to a serious build-up
    of traffic and significant disruption. The estimated cost was more than £1
    million. In
    R. v Osker (Donna) (2010) EWCA Crim 955; (2010) M.H.L.R. 115,
    the defendant pleaded guilty to one count of public nuisance by causing a
    multi-storey car park and surrounding area to be vacated when she stood on
    a ledge at the top of the car park cutting herself with a razor blade and
    threatening to “end it all”.
  2. Causing,
    allowing or permitting the dispersal of dangerous or noxious contaminants: 
    Corby Group Litigation v Corby DC (2009) EWHC 1944 (TCC); (2009) N.P.C. 100.
  3. Obstructing
    the highway: 
    Attorney General v Gastonia Coaches (1977) R.T.R. 219.
  4. Allowing
    a piece of land to be and to remain in such a state as to be a nuisance or
    injurious to health:
    Attorney General v Tod Heatley (1897) 1 Ch. 560.
    Dead dogs and cats, vegetable refuse, fish, offal, rubbish, and all kinds
    of filth thrown or deposited upon vacant ground belonging to the
    respondent constituted a continuing nuisance injurious to the health of
    the inhabitants of the parish.
  5. Permanent
    and material interference with navigation on a river, amounting to
    obstruction and a public nuisance:
    Couper v Albion Properties Ltd (2013) EWHC 2993 (Ch)
  6. It
    goes without saying that the above list is not exhaustive.



Appendix 8.
Private nuisance related adjustments in both countries
England and Wales
Unreasonable
affect.
Not every disturbance or annoyance is a nuisance.
The nature of the locality where the nuisance took place, the time and duration
of the interference as well as the conduct of the defendant are considered. The
more reasonable and useful it is, the more likely it is that the claimant’s
action will be unsuccessful (Cracknell, 2003). Likewise, the locality does
matter. For example, a resident who bought a new house
in a manufacturing district of a city cannot
succeed in nuisance of smell or noise as the resident has chosen to live in a
manufacturing area. Another example is the time and duration of the activity,
where activities making noise may be reasonable at 10am, but the same activity undertaken at 10pm can be unreasonable (
Halsey v Esso Petroleum (1961)). 
Temporary or trivial affect.
If the breach of a
tort is insignificant or trivial the court is likely to dismiss the case. Thus,
for example, noise caused by children playing normally in a garden in daytime
might be a nuisance but is deemed trivial and therefore not actionable (Welch,
no date). Moreover,
the construction of houses necessitate the making a noise, but this
noise is temporary and necessary to achieve the goal of building houses. So, it
is less likely to constitute a nuisance.
Conduct
of the defendant.
When considering nuisance
where there is no physical damage to the claimant’s property but the nature of
the offence is such as to cause him discomfort by means of, for example, noise,
smells, dust or other interference with the use and enjoyment of his land, the
courts will take into consideration such things as the character of the
neighbourhood, the duration of the interference, whether the defendant has
acted with malice and such other considerations as, for example, the claimant’s
abnormal sensitivity to the disturbance or whether the defendant has acted in
the public good, although this is not, per se, a defence.
Malice.
There can be a
nuisance motivated by malice. An example can be a case of Christie v Davey (1893). Here, the claimant was making a noise at
home by annoying his

neighbour
because he was exercising music lectures by teaching
to his pupils how to play the piano. Thus, the
neighbour has started disturbing his classes by shrieking,
whistling and beating on trays. It was held that the defendant was acting
maliciously and an injunction was granted to restrain him from making these
noises.
In Christie v Davey, the
defendant was deliberately creating a noise to frustrate the claimants; based
on this, it was held that their actions were malicious, unreasonable, and
amounted to a nuisance (Wikipedia, 2016).
Abnormal sensitivity
Where a person or property is abnormally sensitive to the
injury inflicted, then provided the defendant’s conduct was reasonable, the
claimant will be unlikely to establish liability in nuisance. Sometimes, any abnormal sensitivity of the claimant can
influence in the situation to claim it as a nuisance.
“Abnormal sensitivity” is where the
claimant’s damaged property is particularly sensitive to damage by the
defendant’s actions. In 
Robinson
v Kilvert
, it
was established that the action of the defendant would not have caused damage
for the abnormal sensitivity and the defendant was not liable. However if the
damage was caused to abnormally sensitive property but would also have damaged
non-sensitive property, the defendant is liable, as in 
McKinnon Industries v Walker. This was because it infringed on the
“right to ordinary enjoyment”; as a result, the claimant could claim
for his more sensitive activities as well
  (Wikipedia, 2016).
Moving
to a nuisance
According to  Wikipedia (2016):
Defendants sometimes argue that a claimant “came to a nuisance” by moving onto land next to an alreadyoperating source of interference. A new owner is entitled to the reasonable use and 
enjoyment of his orher land the same as anyone else, but the argument may be considered in 
determining the reasonableness of the defendant’s conduct. It may also have an impact determining damages because the purchase price may have reflected the existence of the nuisance.
Thus, claimants cannot succeed if they have moved to a nuisance. The case of Sturges v Bridgeman (1879)
can be an example. The defendant was a manufacturer of sweets by using certain
machinery for more than 20 years. But, his new neighbour, a doctor, has built
consulting rooms in his garden 8 years after the purchase of the house. The
defendant’s machine was disturbing the doctor’s consultancy. In the nuisance
action, the defendant claimed that he had acquired a right to make the noise by
20 years’ prescription. “It was held that there was no nuisance until the
consulting rooms were built and that time did not begin to run until that date
and so there had been no 20-year prescription” (Cracknell, 2003).
It is sometimes difficult to know when a nuisance amounts
to a public nuisance (and as such is a criminal offence) or simply a private
nuisance (actionable in the civil courts). Also, the private nuisance is under a range of criticism stating that it is
confusing. Researchers think that the tort of private nuisance has “lost
its separate identity as a strict liability tort and been assimilated in all
but name into the fault-based tort of negligence”, and that
private and public nuisance “have little in common except the accident of
sharing the same name”
(Wilde, 2015).  Criticism focuses on the lack of
concrete definitions for legal principles and the idea of
“reasonableness”
(Wikipedia, 2016).While a definition for private nuisance is easy to find,
the regularly accepted one does not consider that most private nuisance cases
involve two occupiers of land; the “nuisance” has moved from the
defendant’s land to the claimant’s land”
(Wikipedia, 2016).
Mongolia
Unreasonable
affect.
In Mongolia, there is
no explanation about the conduct of the claimant and defendant. However, the
law highlights the seriousness of the damage. As explained in above sections,
the Civil law clearly defines that the trivial use of the land or property as
well as its necessary release of permitted level of annoyance, damage or disturbance
can be trivial. But, in order to become a nuisance, the level of the damage
must be serious or too serious by exceeding the permitted level of noise,
smell, or other affects. These regulations shows that the law strives to
balance the interests of both parties. However, researchers
criticise that the law considers the rights
of defendants rather than the extent and location of the place where nuisance
took place, etc. (Battulga, 2010 and Electroconism, 2009).
The law about fighting against boozing and carousing
(State Great Khural, 2000) states that the bars, clubs, karaoke, pubs and other
entertainment activities must not work in an area where University,
Kindergarden or Residencial Apartments locate. However, section 7 specifies
that these entertainment places can operate on the ground flow of the above mentioned
educational and residential buildings if they are specifically designed and
equipped with appropriate facility. In other words, the purpose of the law is
to protect young people from excessive alcohol usage and protect the rights of
residents to enjoy and use their apartments without any nuisance. But, those
clause 7 ruins everything and it allows pubs and bars annoy and disturb the
neighbours with smokes of smokers, noise and smell of alcohols enters to the
property of households living upstairs through windows and commonly shared
ventilation channels. 
Temporary or trivial affect.
In Mongolia, there is no explanation about
temporary or trivial nuisance. The 135.1 states that the neighbour cannot limit
or prohibit the action and usage of the neighbour if the usage is trivial.
Thus, the law considers the trivial usage. But, there is no clause about
temporary actions. However, the temporary nuisance will not be considered as
nuisance, in general, because the law protects the rights of defendant well.
But, as mentioned above, the justice can decide any single case by considering
the nature of the damage. However, there is no practice in terms of temporary
and trivial nuisances to date.  
Malice, Abnormal sensitivity, Moving
to a nuisance, Difficulties in bringing a case
Currently, there is no adjustment.
Other related laws applicable in Mongolia
that may be relevant to the private nuisance.
In 2005, a Law about Control of Tobacco has been approved.
Thank to this new law, the nuisance
caused by smoke has been decided. Before, any neighbour in apartment smoked in
the lift and inside the building where no ventilators for smoke are installed.
This smoke annoyed many neighbour families. Smoke from bars and pubs should
also be mentioned. Usually, the ground and first floors of residential
apartments are used as bars and pubs where people smoked heavily and the smoke
affected the neighbours living
upstairs through window or commonly shared
ventilation channels. As there is no specific law about nuisance or as there is
no case for suing about private nuisance, this kind of nuisance issues could
not been decided before the Law about Control of Tobacco has come into force.
The Law about the
Apartment (1999) prohibits property users to violate the rights of other
property users. But, there is no specification about private nuisance. 
In 2012, Waste Law has been issued. But, the scavengers’’
and affected people’s issues are still not decided under this law as the law
permitted to establish big dumps near families (Please see
Appendix 5).
The Law for Protecting the Environment 1995 states that
the citizen has a right to claim remedies for compensating his/her damage if
any guilty party has negatively affected his health and property. From the
other side, if the citizen has damaged the environment, he/she is obligated to
compensate the damage (2.1. of the law). In 15 of the law, the Ministry of the
Environment is responsible for all the environmental policy for the
countryside, natural resources and the general ecological issues. But, there is
no clause about the environment in cities, especially the living environment of
residents that can be polluted or affected by neighbours, even though 2.1. of
the law defines the environment as all surrounding area of the people. It shows
that the adjustment related to the neighbours living near to each other,
especially in cities, is the new subject for Mongolia. Section 49 of the law
required the person damaged the environment to pay fine to the government for
harming ground, water, forest and animals. But there is specification about
whether that person should pay remedy to the affected household or the person
if he/she has damaged the neighbour’s land, water, forest and animals.
18.4 of the Law about Evaluation of Environmental Affects
(2012) stated the duty of Environmental evaluation companies, which assess the
environmental risks for mining and other land related operation running
companies, to consulate with citizens of surrounding area about possible
effects of those mining or other operations to their health and lifestyle. Like
this statement, all the other clauses of this law is dedicated for the
companies operating in the countryside, but, there is no consideration about
the construction, road building, infrastructure and mining companies operating
in cities, especially near the apartments or house (ger) areas.
22.2 of the Law about Land (2002) states that the Governor
of the Khoroo and Soum (small units of districts in cities or provinces
respectively) is responsible for ensuring protection of the environment, proper
use of the land, and hygiene and sanitary of the environment. 
52 of the law adjusted the land usage of pasture breeding
herders to use the land of the countryside pleasantly for choosing the seasonal
places so that all herders can adhere to the coordination of the Governor. In
the countryside, nuisance issue can arise from mining operation, but not from
other households (see
Appendix 1 for Mongolian lifestyle in the
countryside). 



 Appendix
9.
Public Nuisance related adjustments in Mongolian laws (Analysis)
In the Civil law 2002, Law about commonly owned property
2003 and Law about Forests 2003, there is no specification about the
requirement of the number of people to sue for public nuisance. It is because
of no specified distinction between private and public nuisance
in Mongolian laws.
The major issue in public nuisance in Mongolia is the air
pollution. More than 175,000 households living in ger (yurt) areas burn coals
to warm their house during the winter as they do not have any other heating
system like electricity or gas heaters (they do not use electricity heaters as
they are expensive) (Ulaanbaatar Post, 2014; Edwards, 2015; The World Bank, 2012).
These households interfere to the right of other residents of Mongolia, who
definitely constitute the public, to breathe fresh air. But, due to lack of
legal requirements for public nuisance, nobody has been sued for this public
nuisance. Battulga (2010) suggests that public nuisance can be resolved by
utilizing the clause 497 and 502 of the civil law that respectively contain
requirements about the guilty person who has affected the health, …,
environment, and property of the public and any other person “must recover the
damage” and “must be in charge of compensating those who have affected”. So, if
this clause can be enforced in relation to the clause ‘rights of neighbour’ in
the Civil law, the number of families coming to ger areas from the countryside
may be decreased and the government can become able to limit the number of
residents burning coal during the winter. The air pollution is obviously a
widespread effect of pollutants.
In the 19.3 of the Law about Toxic and Hazardous
Chemicals 2006 (State Great Khural, 2006), it has stated that people using
toxic or hazardous chemicals in a way of harming health and well-being of other
people and the environment are in criminal offence. 20.1 stated that the guilty
party is in charge of compensating and recovering damage of those use of
chemicals that affected health of people, environment, livestock and property
of people. This clause can be used for those people who burn forbidden items
containing hazardous chemicals. In detail, many poor households in ger district
burn car tires, plastic bags and other waste for making their home warm as they
do not have money to buy coal or electricity heater (Eric and Bethany, 2016;
Aghajanian, 2015). From one side, it is related to the poverty, but, from the
other side, they are affecting the health of the public and the environment
because those items release seriously harmful chemicals in the air when burned.     
In 136 of the Civil Law of Mongolia, it is forbidden for
every land owner or user to contaminate the river, change the direction of the
river, worsen the quality of the water and use the water by limiting the
watermark if the river passes through the land of several land owners or users.
This is similar to the laws of England and Wales where this kind of nuisance
can be considered as both private and public nuisance.
In 143 of the Civil law, the rights of the Property
owners’ union have been stated. This union is in charge of the public area of
any apartment or house so that the union should ensure the normal usage of
property owners by not disturbing each other with waste smell, noise, water
flood, etc. Its main purpose is to protect the rights of property owners. The
members of the union should be owners of properties in any particular area of
residence and they will constitute a legal entity “Property Owners’ Union”. The
maintenance and cleaning service of the public area such as water basin, garage,
playing area for children, resting area for elders and other fitting like
lifts, lights, gates, water channels and heaters are under the control of this
union. Thus, it charges the amount of money from property users so that it can
operate to provide the residents with convenient living environment.
The clause 149 of the civil law states that the Property
Owner’s Union can sue the defendant if that family or person does not respect
the common rules of living in an apartment together with others and violates
his/their legal obligation.
However, this adjustment refers to only 40% of the
population in capital city Ulaanbaatar where 60% of them reside in ger
districts where people live houses or ger (Oyunbayar, 2013; Statistical Office
of the Capital City, 2014). The nuisance issue should be more relevant to this
Ger-District where financially weak people live in these areas. Moreover, these
districts use coal for their temporary heater and it makes heavy air pollution
during the winter. This case should have considered as public nuisance as the
total population living in Ulaanbaatar are affected by toxic chemicals
contained in the polluted air. In the Law of Payments of Air Pollution
(2010),  
Moreover, the Law about Commonly Owned Property in the
Building Dedicated for the Apartments (2003) includes the types of damages and
actions to take for such damages. Write more about it
The Law about Forests (2003) states that no family can
live in or nearer than 200m from the forest. However, there is no section about
the public nuisance. It should be considered how that unlawful residence in
forests can harm health of people or the environment so that it can become
public nuisance. Suburbs Ulaanbaatar, there are a summer camping lands for
residents where forests and rivers exist. But, people build own houses in the
forest by cutting the trees and affecting the healthy lifestyle for surrounding
public by throwing waste all around, building toilette on the ground and
establishing road ways for their cars by ruining the green grass and rivers all
around (Government of Mongolia, 2014; Altantsetseg, 2008). It affects the
watermark of the rivers nearby and researchers remind that many rivers are
contaminated by people living near and many water resources dried up (21 rivers,
29 rill,
2 holy
water and 2 lakes have dried up in Ulaanbaatar) (Ulaanbaatar area commission,
2011).
Section 5 of the Law about the Sanitary (State Great
Khural, 1998) states that the citizens and organisations should protect water
resource, rivers and water channels from contamination. But, the implementation
of this law is not visible. The example has been talked above that the water
and rivers are contaminated hugely due to human activity, especially in summer
camping areas of the capital city. Clause 5.2 states that the organisation in
charge of water distribution should control test and protect the quality of
drinking water. Unfortunately, this law is not being implemented. For example,
facility in charge of cleaning waste water of Ulaanbaatar cannot clean the
waste water and release so much waste water into the river Tuul that is the
drinking water of many countryside families and livestock
(Ministry of the Construction and City
Planning, 2013). 6.1. of the law states that the living, working and studying
area of the human must have quality air which is compliant to the dedicated
standards. However, current air pollution in the capital city shows that the
law is not implementing. That is because there is no specification about
person’s and households’ legal duty and obligation as well as the lack of
adjustment what action can be taken in such situation. Section 8 of the law
states that the buildings and facilities dedicated for residency or service
must meet sanitary requirement so that they cannot harm health of the people.
But, there is no clause about residents’ duty that they should live by
complying with sanitary requirements. Thus, the Property Owners’ Union works on
behalf of residents living in apartments in cities that they clean the entire
environment and handling issues related to waste. But, for ger areas in cities
and in the countryside, there is no such organisation, so the sanitary requirements
are not in concern.
Electroconism (2009) explored that the law of Germany,
which is the base of Mongolian law system, has been changed in 1974 and its Law
about Protecting from negative affect from the Environment has included
nuisance issued related to air pollution, noise, vibration and other similar
effects. He advised to learn from the improvement of laws of Germany so that
nuisance issues can become clear in Mongolian laws. That is because Mongolian
legal system and law has based on Roman-German law system which was adhered in
Germany before 1949. But, Mongolia has not updated its laws ensuring the
nuisance is stated clearly even though the laws of Germany have been improved
under the influence of the European Union legislation (Rheinstein, 2016). 
The Law about Safety in Highway Traffic (State Great
Khural, 2015) states that if any vehicle has violated the safety rules and
disturbed the driver to participate the traffic safely, that vehicle driver
should compensate the damage and to be fined. It is not a criminal offence
unless there is a loss of human’s life or too serious injury to people caused
by the driver’s wrong acts.
Moreover, 4.1.6 of the Air Pollution Law Compensation
2010, it has stated the air polluting citizen, economic entity and organisation
are the payers of air pollution remedy. Section 5 of this law specifies that
the air polluting coal miners, auto vehicles and parties polluting the air from
big generators of polluting elements are obligated to pay remedies. However,
there is no specification about households and persons polluting the air and
affecting the others’ right to live healthy. The clauses 5.5, 5.6 and 10.1
state that organisations polluting the air must pay fine, nut, if the level of
pollution exceeds permitted level, they are considered as the criminals and
decided by the Criminal Law of Mongolia. In this way, it can be seen that the
Mongolian laws are striving to punish air polluters by considering the damage
as the crime.
The Air Law 2012 of Mongolia is dedicated for preventing
any kind of air pollution and adjusting air related aspects. However, this law
does not consider air polluting households as defendants of the public
nuisance. The Government itself takes the duty of decreasing the amount of air
pollution and implements various projects for providing coal burning households
with electrical heaters and/or heaters that release less fumes from coal
burning (6.1.5-6.1.6 of the law). That is maybe because of economic capability
of the people. Section 9 indicates that the citizens and organisations are
obligated to adhere to the law, regulations and normative related to air. However,
as there is no specification about acts of households that fumes released by
their homes are not considered as civil and criminal wrong, households do not
take themselves responsible for the public nuisance. According to 9.1.8 and
9.1.10 of the law, citizens have a right to sue companies and organisations for
their fume, dust or any other effect to the neighbours and the public. But,
again, there is nothing about rights for sueing
against households that they affect the health of the public.
As
the nature of the countryside is ruined by mines, the Law about Mineral
Resources (State Great Khural, 2006) is relatively good. Section 41 of the law
states that the companies exploring mineral resources or mining the side must
ensure the safety and protection of the environment. If the company has
affected any of summer, spring, autumn and winter quarters of herders or any
other property during its operation, it must compensate the damage fully to the
affected people and must cover all the expenses related to the recovery of
those properties. This adjustment is similar to the public nuisance because the
purpose is to ensure that those mining companies do not affect and damage the
property of surrounding public. There are also clauses about the mining
companies’ duty that they should ensure the health and safety of the
surrounding public must be protected, if harmed by any dust or fume, the
company should compensate. If the company will not adhere to the requirements
of the law, the special license of that company will be cancelled and will not
be recovered for up to 20 years as well as the act will be considered as the
criminal offence.   
14.5 of the Law about the Apartment (1999) prohibites property users to block the roadway
around his property. This requirement is similar to the public nuisance in
England and Wales. 



 Appendix
10
Public and statutory nuisance adjustment in England and Wales
Prejudicial to
health
Section
79 of the 1990 Act
 lists various activities and circumstances which may
constitute statutory nuisances if they result in a state of affairs which is
“prejudicial to health” or a nuisance. This encompasses the keeping
of premises; the emission of smoke, fumes, gases, dust, steam, smells,
effluvia; the accumulation of material; the keeping of animals; the emanation
of insects from commercial premises; the emission of artificial light; noise
from premises; noise from vehicles or machinery in the street; any other matter
declared to be a statutory nuisance by enactment.
1.      Section
79 of the 1990 Act
 lists certain activities, such as the emission of smoke
or the accumulation of substances, which will constitute statutory nuisances if
deemed “prejudicial to health or a nuisance”.
2.      As s.79 makes clear the term “prejudicial to
health or a nuisance” is the key legal test for determining whether the
above activities or circumstances constitute statutory nuisances. It should be
noted that the terms “prejudicial to health” and “nuisance”
are used in the alternative which means that there is no need to fulfil both
criteria; each is independent. Thus an
activity may constitute a statutory nuisance even if it is not prejudicial to
health. The extent to which it is necessary to specify whether a matter is
prejudicial to health or a nuisance depends on the circumstances. In 
R. (on the application of Fullers
Farming Ltd) v Milton Keynes Council (2011)
EWHC 3784
(Admin); (2012) Env. L.R. 17
, concerning odours from a pig farm, it was
held that the distinction was not critical in terms of understanding what
abatement action was necessary.
3.      Any person can instigate statutory nuisance
proceedings in the magistrates’ court pursuant to 
s.82
EPA 90
. This procedure
has proved especially useful where it is the local authority, which is the
regulator in statutory nuisance matters, which is itself to blame for the nuisance.
4.      Locus standi is afforded to “persons
aggrieved”, a phrase which has been interpreted widely in other contexts
although it is likely to exclude “busy-bodies” who are not directly
affected in some way. Thus the procedure has been used against local authorities
by council tenants in respect of the state of their properties. For example, 
Sandwell MBC v Bujok (1990) 1 W.L.R.
1350
5.      If the magistrates’ court is satisfied that a
nuisance exists it can make a nuisance order requiring the abatement of the
nuisance. Failure to comply with a nuisance order issued by the magistrates is
a criminal offence and gives rise to a maximum fine of £5000 and 10% of the
fine imposed for each day the nuisance continues.
Many large-scale industrial premises are subject to the
environmental permitting regime introduced under 
s.2of the Pollution Prevention and Control Act 1999. A range of the
pollutants which may constitute statutory nuisances are also governed by the
permitting regime which imposes emission limits and so forth in respect of such
elements. This raises the possibility that enforcement action taken by a local
authority in respect of, for example, dust, steam, smells or effluvia, could
conflict with permitting conditions governing those elements. In such
circumstances 
s.79(10) EPA 90 provides that the
local authority must first obtain the consent of the Secretary of State.



Local Authority
role-  inspections and enforcement
Under Pt
III of the Environmental Protection Act 1990
, local authorities are empowered to take action in
respect of activities which constitute statutory nuisances.
The local authority is required to inspect its area
for statutory nuisances and to respond to complaints brought by members of the
public. The principal enforcement mechanism is the abatement notice which
requires the person causing the nuisance to cease the offending activity and
rectify any damage. Failure to comply with an abatement notice may give rise to
criminal liability. Members of the public may also institute proceedings in the
magistrates’ court.
Friends of the
Earth (2008):
If
a local authority is satisfied that a nuisance exists, it must issue an
abatement notice against “the person responsible”. This can include anyone from
a landlord/owner, to a local authority or a tenant. If a local authority finds
that a statutory nuisance exists and decides not to take enforcement action (by
issuing an abatement notice) they will be acting unlawfully and you can make an
application for judicial review of their failure to take action. An abatement notice must require the
nuisance to be prohibited or its occurrence/recurrence restricted and/or works
or other steps to be carried out to comply with the notice. It will also set
out a time limit for compliance with the notice.
Friends of the
Earth (2008):
Failure
to comply with an abatement notice without reasonable excuse is a criminal
offence. The test for a reasonable excuse seems to be whether a reasonable
person would think that the excuse given fits in with a reasonable standard of
conduct. If the abatement notice is breached deliberately through circumstances
within the defendant’s control, then they are unlikely to be able to argue that
they have a reasonable excuse. It is for the prosecution to show that the
excuse is not reasonable. The maximum penalty for breaching an abatement notice
is a £20,000 fine for industrial, trade or business premises and a £5,000 fine
and £500 daily penalty for other premises. If a complaint was initially made by
an individual to a local authority, then the court has a power to award
compensation to the person concerned.
If
a local authority takes the view that criminal proceedings for breaching an
abatement notice would not be enough, or that the abatement procedure notice
would not be effective, it can apply to the High Court for an injunction. The
court has discretion as to whether to grant an injunction, and the particular
nuisance will need to be of a sufficient weight and/or urgency to justify this
course of action. Breaching an injunction is contempt of court which can result
in a two year prison sentence or an unlimited fine.
Powers
and Duties of Local Authorities
 
Local authorities
are charged with enforcing the law pertaining to statutory nuisances pursuant
to 
s.79(1). Moreover s.79(1) makes
it clear that local authorities must, from time to time, take positive steps to
detect statutory nuisances in their jurisdictions and respond to complaints
brought by members of the public. In order to carry out these duties 
Sch.3 of the EPA
90
equips local authority environmental health
officers (EHOs) with the wherewithal to enter premises, take measurements and
carry out tests.
The primary
enforcement mechanism of the local authority is the abatement notice, the
requirements of which are set out in 
s.80. If the authority is satisfied that the nuisance exists,
is likely to occur, or recur in its area it is required to serve an abatement
notice against the person responsible for the nuisance. The notice must be
clear and must require the responsible party to take such steps as are necessary
to abate the nuisance or prevent its occurrence or recurrence within a given
compliance period. The party to whom the notice is addressed may appeal to the
magistrates’ court on specific grounds including; the matter does not
constitute a statutory nuisance; there is a procedural defect with the
substance or form of the notice; the notice is unduly onerous or unreasonably
precludes alternative means of abating the nuisance; the time limits for
compliance are unduly restrictive and the best practicable means (BPM) were
used to prevent or counteract the nuisance. Additional procedural requirements
for appeals are set out by the 
Statutory
Nuisance (Appeals) Regulations 1995/2644
.
A failure to comply
with an abatement notice may give rise to criminal liability under 
s.80(4) of
the Act and the penalties are set out in 
ss.80(5)-(6). In short, where the nuisance occurs on non-commercial
premises, the maximum penalty is £5000 plus a recurring penalty of 10% of the
fine for each day the nuisance continues post-conviction (thus £500 where the
maximum penalty has been imposed). Where the nuisance occurs on commercial
premises the maximum penalty is £20,000 (here there is no provision for a
recurring daily penalty).
There are
alternative options available to the local authority where an abatement notice
is not complied with. Firstly, under 
s.81(5) EPA 90 the
local authority may seek an injunction in the High Court requiring abatement of
the nuisance. This remedy would clearly be preferable where a fine would not
provide the party concerned with an inadequate incentive to abate the nuisance.
An injunction is likely to be providing a greater incentive in that failure to
comply with its terms constitutes a serious contempt of court leading to
possible imprisonment. However, the High Court is only likely to use its
discretion to grant an injunction in the most serious cases.
Secondly, the local
authority can abate the nuisance itself and recover its costs from the person
responsible for the nuisance;
ss.81(3)-(4) EPA
90
.
Liability for
non-compliance with an abatement notice is not strict in that 
s.80(4) EPA 90 provides
that it is an offence to comply with an abatement notice “without
reasonable excuse” and 
s.80(7) establishes
a defence where the defendant can show that he used “best practical
means” (BPM) to prevent the harm from occurring.
The EPA 90 differs
from the earlier Public Health Acts in that there is a positive duty incumbent
on local authorities to take positive steps to detect statutory nuisances and
to respond to complaints. This means that a local authority could be exposed to
judicial review proceedings if it fails to exercise its powers. However, the
term “from time to time”, which denotes the frequency with which
local authorities are expected to undertake inspections, is not defined. Thus
the intensity of the measures which the authority is expected to take is
uncertain as is the extent to which budgetary constraints and so forth can be
taken into account.



 Defences
According to Friends of the Earth (2008):
Defences where
an abatement notice relates to activities carried on at a trade or business
premises, it is a defence in some circumstances to show that the best
practicable means (BPM) have been used to prevent or counteract the nuisance.
BPM involves having regard to local conditions and circumstances, the current
state of technical knowledge, and financial implications. There are also
specific defences for complaints of noise and nuisance on construction sites
and in areas where there are registered noise levels.
There are
alternative options available to the local authority where an abatement notice
is not complied with. Firstly, under 
s.81(5) EPA 90 the
local authority may seek an injunction in the High Court requiring abatement of
the nuisance. This remedy would clearly be preferable where a fine would not
provide the party concerned with an inadequate incentive to abate the nuisance.
An injunction is likely to be providing a greater incentive in that failure to
comply with its terms constitutes a serious contempt of court leading to
possible imprisonment. However, the High Court is only likely to use its
discretion to grant an injunction in the most serious cases.
Statutory
nuisance is very much the creature of law in the UK and there is no direct link
with EU law. However, the ability of local authorities to abate nuisance
themselves and recover the costs from the polluter provides one of the means by
which the UK seeks to comply with 
Directive 2004/35 on environmental
liability with regard to the prevention and remedying of environmental damage
Potential Overlaps with Other Areas of Law
Many of the harms
which may constitute statutory nuisances are of a similar nature to those which
are covered under other regulatory powers; although the scope for duplication
has been reduced by the manner in which the legislation has been drafted.
Dark smoke from
industrial and commercial premises, for example, which is dealt with under the 
Clean Air Act 1993, is
specifically excluded from the definition of statutory nuisance as is smoke
from private dwellings in a smoke control area; 
s.79(3) EPA 90.
Certain
accumulations or deposits on land could constitute contaminated land. However,
contaminated land is subject to a specialist liability regime under 
Pt IIA EPA 90 and s.79(1A) precludes
such contamination from the scope of statutory nuisances.
Many large-scale
industrial premises are subject to the environmental permitting regime
introduced under 
s.2of the Pollution Prevention and Control Act 1999. A range of the pollutants which may constitute
statutory nuisances are also governed by the permitting regime which imposes
emission limits and so forth in respect of such elements. This raises the
possibility that enforcement action taken by a local authority in respect of,
for example, dust, steam, smells or effluvia, could conflict with permitting
conditions governing those elements. In such circumstances 
s.79(10) EPA 90provides
that the local authority must first obtain the consent of the Secretary of
State.
Best practicable means
As noted in the
detailed discussion, the concept of best practicable means (BPM) can operate as
a defence to a criminal prosecution for failure to comply with an abatement
notice or as a ground for appealing against the issue of an abatement notice.
The BPM concept is well established in environmental law and requires the
polluter to show that he has used the best means available to reduce the harm
taking into account practicalities and cost. The manner in which BPM should be
applied in the context of statutory nuisances has been the subject of some case
law although it is very much a decision which has to be made on a case-by-case
basis. In 
St Albans City and
DC v Patel (2008)
EWHC 2767 (Admin); (2009) Env. L.R. 22
, for
example, it was held that the licensee of a public house had adopted the BPM to
reduce noise from his premises by reducing the size of the pub garden.

Appendix
11. Case classification by the
Judicial General Council of Mongolia (2016)

Classification
of Civil cases decided by the court

Classification:
         
Procurement
contract and commercial contract
         
Bank
loan
         
Loan
from financial organisation
         
Other
loans
         
Present
         
Tenancy
agreement
         
Financial
rent (leasing)
         
Franchising
         
Using
a property on a free basis
         
Contracting
for performing a task
         
Contracting
for paid work
         
Employment
contract
         
Tourism
         
Transportation
         
Job
task
         
Property
right delegation
         
Storage
–       Insurance






Classification
of Criminal cases decided by the court


 

The
classification is by the number of clauses (There is no clause specifying
nuisance related issue)


Classification
of Administration cases decided by the court 


Classification:
         
Election
         
Tax
         
Land
ownership, land certificate
         
Mineral
resource
         
Tender
         
Social
insurance
         
Special
license
         
State
registration of ownership rights of properties
         
Labour
of the state organisations’ officers
         
State
control and monitoring
         
State
and local proprietary
         
State
registration of legal entities
         
Privatisation
of apartments
         
State
duty

       –       Other

Бусадтай хуваалцах:

Холбоотой нийтлэлүүд