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been replaced by statutes, individuals and the part of the public can sue for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).
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been replaced by statutes, individuals and the part of the public can sue for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.
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.
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.
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.
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.
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.
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).
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).
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.
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.
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.
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).
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.
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.
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).
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.
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
|
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).
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).
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).
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).
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.
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.
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.
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.
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) |
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) Provision 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)
|
?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
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).
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).
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).
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.
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. |
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).
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.
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.
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.
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.
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.
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.
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).
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).
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.
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. |
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.
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.
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. |
|