Contents

England and Wales

“The tort of nuisance was developed by the common law to protect occupiers of land against an unlawful interference with the use or enjoyment of that land” (Brien, 2014; Cornell University Law School, no date; Horsey and Rackley, 2015a). There are two main categories of nuisance: Private and public (Wolf and Stanley, 2010; Howard et al, 2015; Jones, 2002; Giliker and Beckwith, 2011). However, “some nuisances can be both public and private in certain circumstances where the public nuisance substantially interferes with the use of an individual’s adjoining land. This is known as a mixed nuisance” and an example can be pollution of the river (Stewart, 2006). Moreover, as many public nuisance laws have been replaced by statutes, individuals and the part of the public can sue for nuisance under statutory nuisance (Wilde, 2015; Mothersole and Ridley, 1999). Furthermore, “the rule in Ryland’s v Fletcher is a sub-species of the tort of nuisance” (Brien, 2014).

Mongolia

Mongolia has a civil law system; therefore, there is no common law in Mongolia. As such, there are only statutory nuisances regulating both private and public nuisance issues. But, actually, the relevant clauses of various laws have no name as ‘nuisance’. They are in different forms of names like ‘rights of neighbour’, ‘obligations of organisations to protect the environment’, and so on. The main law containing rights of neighbours is the Civil law of Mongolia while the Law about Protecting the Environment plays a main role in the public related environmental adjustments. The distinction between private and public nuisances also has not been described in any laws.

Clauses 134-141 of the Civil Law regulate rights of neighbours. As the topic speaks itself, the law considers more of rights of neighbours with the lack of statements about their obligations not to interfere others. For public nuisance, there is a lack of complex adjustment as the current laws contain environmental issues that may be relevant to public nuisance separately. Generally, a good practice of using the regulations in deciding the public nuisance is more in critique. Unlike England and Wales, the database containing nuisance cases is not worthy. In the online registration port of cases decided by courts (Online database of Courts of Mongolia, 2016), there is no classification by nuisance. The only related classifications are by ‘Land’ and ‘Property right’. However, when studying those cases, no nuisance related case has been found. It shows that the issue is not handled well in Mongolia, even the nuisance can be a very new aspect that needs more clarification and adjustment.

The reason why nuisance is not regulated well can be the traditional lifestyle of Mongolia until the 1990s influenced the adjustments and differing from the culture in England and Wales. Therefore, these differences, which may influence the legal system, have been explained in Appendix 1, Appendix 2, and Appendix 3.

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

The major distinction between laws of England &Wales and Mongolia stays in the flexibility of laws in England and Wales that the courts considered the important cases and reflected on newly arisen legal aspects so that they could develop and improve case laws. In Mongolia, the Civil law has permitted the courts to study the similar situations in the neighbourhood in order to investigate the dispute related to the neighbour’s right. However, there is no such case currently.

That is because nuisance is relatively a new aspect in Mongolia, and, therefore, legal environment for deciding nuisance issues is not clear enough. Researchers and lawyers suggest improving the legal environment by studying the best practice of developed countries, including Germany and Australia (Battulga, 2010 and Electroconism, 2009), and establish the usage of precedents. That is because they recognise the need for clearer adjustment. Currently, nuisance and neighbour’s affect related issues are being studied from the best practice of Australia and Germany because Mongolian legal system is based on Roman-German laws and the mining field of Mongolia is dominated by transnational corporations originated from Australia. It can be seen from an example document translated from Australian guideline for mining “Best practice and Sustainable development programme for Mining field: Air pollution, noise and vibration” (Australian Government, Department of Resources, Energy and Tourism, 2009). This document contains detailed information about handling aspects of and controlling the effect of private and public nuisance through smell, dust, fume, gas, noise and vibration caused by the mining operation.

1.3.Introduction to the document

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

2. Private Nuisance

2.1. Definition

England and Wales

Private Nuisance is a civil wrong “designed as an action between neighbouring land-owners to protect a person’s interest in land being adversely affected by the activities of neighbours” (Horsey and Rackley, 2015b). According to Heuston and Buckley (1996), “the distinguishing characteristic of private nuisance is the imposition of liability as the result of an act or omission whereby a person is annoyed, prejudiced or disturbed in the employment of land”. “The disturbance may take the form of physical damage to the land, or more usually, of the imposition of discomfort upon the occupier” (Heuston and Buckley, 1996). Water, smoke, smell, fumes, gas, noise, heat, vibrations, electricity, animals and vegetation are the common incursions. There are many different case laws dedicated to both general private nuisance aspects and those specific occurrences (please see Appendix 6 for important cases).

Mongolia

Clauses 134-141 of the sub-section 4 in the Civil Law of Mongolia 2002 state the aspects related to the neighbour’s rights. In this law, the neighbouring property has been defined as any land or property bordering to each other or being at a distance where both neighbours can have an effect on each other. According to 139.2 of the law, if it is difficult to define the border of neighbouring lands and when neighbours cannot agree with each other, the court has a right to decide (please see Appendix 8 for comparative analysis in land related characteristics of both countries). However, there is no word about nuisance in the means of what laws of England and Wales state. The main principle is to let neighbours respect each other’s rights. However, the law considers only serious or too serious effect to the neighbour. If someone is making noise, smell, dust or another effect to his neighbour using his legally permitted licence, the court will not find it as a nuisance unless the effect is too serious (134.2 of the law).

However, according to the sub-section 5 regulating the rights of apartment owners (148.2.1 of the Civil law), every resident of the apartment is obligated not to disturb or annoy others as well as not violating the rights of all parties surrounding his/her property. It shows that every resident in the apartment has an obligation not to interfere other people. However, this kind of relative clauses has not been combined with the understanding of neighbour’s right which may include both private and public nuisance. It can be seen from the explanative order about the Rights of the Neighbour (High Court of Mongolia, 2010) that the explanation refers only to the sub-section 4 ‘Neighbour’s right’. Actually, the obligation of apartment users is relevant to the rights of other users who are the neighbours. But, the law shows these understanding as separate. The another concern is that the sub-section 4 relates to only countryside areas where the boundaries of households may be difficult to define and the sub-section 5 relates to only apartment owners or users. Thus, there is a gap that people living suburbs cities in their houses, Mongolian ger (yurts) with fence have not been included in the law. It can be seen from below analysis that the disturbance or annoyance made by households and citizens are not considered as legal duty while the same actions of legal entities do so.

2.2. Adjustment

The similarity

In the laws of both countries, a private nuisance is adjusted. Both countries recognise that the private nuisance will arise between two neighbours when one annoyed or disturbed by another. The similarity is shown in below section.

No.	England and Wales	Mongolia
1	Private nuisance arises between two neighbours when one disturbs, annoys or prejudices the another’s enjoyment of the land by physically damaging the neighbour’s land or through incursions by water, fume, gas, smoke, smell, heat, vibrations and so on (Heuston and Buckley, 1996; Jones, 2015; Stewart, 2006).	The effect has been explained by the High Court via its order (High Court of Mongolia, 2010), that the nuisance will arise when noise, vibration, smoke, lighting, toxic gas, radio frequency, waste, radioactive substance and pollution of land enters the boundary of the neighbour without any possibility of control from the side of releasing neighbour (High Court, 2010).
2	According to Horsey and Rackley (2015a), private nuisance arises between neighbours residing the next door or upstairs and downstairs when one neighbour released smells, noise, vibrations or dust in his own land and that affected the neighbour’s use of enjoyment of his/her own land.	In the Civil law of Mongolia, there is no distinction explained between private and public nuisances. However, the section 4, clause 134 and 135 of the Civil law adjusts private nuisance issue that the nuisance will arise when a neighbour having direct boundary with the neighbour or locating at such a distance where the neighbour can affect to the another by disturbing or annoying the usage and enjoyment of his land or property (High Court, 2010).

The difference

Laws of England and Wales seems flexible and friendly to residents because it considers every new occasion of a legal matter and reflect on that by issuing a case law. But, laws of Mongolia consider only extremely serious effects and ignore full enjoyment of the owner’s and user’s land or property. Although there are several laws that can be related to the nuisance issue, they do not work as a complex legislation. As such, courts have not been decided any private nuisance issue and both the state and citizens do not know what to do if a private nuisance has arisen. Major differences in adjustments have been analysed below.

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

No.	England and Wales			Mongolia
Defence	There are a number of defenses to a nuisance action. As mentioned above, in the case of Sturges v Bridgeman (1879) LR 11 Ch D 852, the defendant could not be defended for his prescription as his machinery noise was disturbing the neighbour’s consulting rooms. However, there can be other types of defences. “If the acts which gave rise to the nuisance was authorised by statute, that statutory authority will afford the defendant a defence only if it can be shown that the interference with the plaintiff’s rights was permitted by the wording of the statute” (Cracknell, 2003). The Law Reform (Contributory Negligence) Act 1945, Agreement to the existence of the nuisance, Act of God is the defences unless the defendant adopted or continued the nuisance (Cracknell, 2003). A defence made by the statutory authority applies to both public and private nuisance (Wikipedia, 2016). The example can be the case of Allen v Gulf Oil Refining Ltd (1980). In this case, it was impossible to construct and operate the refnery upon the site without creating a nuisance (Swarbrick, 2015). Wikipedia (2016): After it came into operation the claimant argued that it caused a nuisance through the smell and noise. The House of Lords held that it had statutory authority to operate the refinery, saying "Parliament can hardly be supposed to have intended the refinery to be nothing more than a visual adornment to the landscape in an area of natural beauty". The statutory authority defence has recently been subject to legislative consideration in the Planning Act 2008, which expands the defence to over 14 types of infrastructure development.			The way how the claimant can be defended is not clear enough in the Civil, Criminal and all relevant laws. That is because the explanative order by the High court states that the trivial usage of the neighbour should not be stopped or the claimant cannot sue if the effect by the neighbour is not too serious. The word ‘too serious’ is not measurable, but it actually defence all the possible nuisance makers. According to the Civil law 2002, the person can claim compensation in the form of money if the effect of the neighbour is greater than the trivial necessary effect level. But, the law has not explained what kind of effect can be and cannot be tolerated or limited in the case of a nuisance (Battulga, 2010). Moreover, Clause 24.1 of the Waste Law of Mongolia 2012 (State Great Khural, 2012) states that any guilty party should reimburse the damage of health, environment, livestock and possessions (including property) affected by unlawful operations violating Waste Law of Mongolia. In the meaning of this clause itself, any damage incurred to any person under the Waste law should be reimbursed. However, there is no case of the court decision related to smelling related nuisance claimed by a household or person against his neighbour. In online registration port of cases decided by courts (The Judicial General Council of Mongolia, 2016), there is no section for nuisance in the classification by the type of the claims and therefore, it is quite difficult to find cases related to a nuisance (please see Appendix 11 for translation of the case classification). This case-showing mechanism needs improvement. However, prior to that, the legal system should be improved so that precedents can be used for nuisance related decision making as the law itself requires court judgement for any not so clear dispute between neighbours.
No.	England and Wales	Mongolia
Remedy	There are three types of remedies, which are the basic ones. They are an injunction, damages and abatement. An injunction is an order of a court, where defendant tis required to stop his work that caused the nuisance. Therefore, it is a powerful weapon. However, monetary damages are common in nuisance redressing. The injunction is used only if the damage is not possible to be repaired and the compensation is not enough. The court examines the hardships to the parties (The Gale Group, 2005). Abatement is a self-help remedy, which is available under limited circumstances. For example, “dead tree limbs extending dangerously over a neighbour’s house may be removed by the neighbour in danger, after notifying the offending landowner of the nuisance” (The Gale Group, 2005). If there is an immediate danger to health and property, thee is no need for prior notification (The Gale Group, 2005).	Battulga (2010) suggested using the clause related to the property ownership as stated in 106.2 of the Civil law for clarifying the nuisance issue as this clause protects the land owner’s right by allowing him to require the stoppage of acts that disturb or annoy the enjoyment and use of the land or property. Also, he suggested making clear the adjustment about the legal obligation of the defendant by using the clause 497 of the law as it contains requirements to the guilty person to remedy the damage. In 135.2 of civil law, the right of the claimant to be compensated by cash is permitted when the neighbour annoys or disturbs him/her by exceeding the permitted disturbance level. It shows an interference of a neighbour that cause nuisance. 135.3 states that the neighbour can require to avert any erection or building of a neighbour if it damages his land seriously. This clause shows a difference between Mongolian and English and Welsh laws because any kind of branches or roots of trees cannot be seen as serious damage in Mongolia. However, this kind of issue exists. For example, in some agriculture areas, such as a a district named as 61-n garam, locating suburbs Ulaanbaatar, people plant vegetables. But, cucumber planting people consider that potatoe growers affect their harvest which can be considered as nuisance. Unfortunately, laws do not adjust such conditions. It is difficult to prove that potatoe growers affected cucumber harvest due to ground water usage or any species as there is a lack of good laboratories in Mongolia. The clause 153.1 of the Criminal law can also be used. It states that the person who has unreasonably affected the property of others is to be fined by the amount of money 51-250 times the minimun labour payment, or constrain to perform a work for 251-500 hours, or detain the accused for 3-6 months, or imprison for up to 3 years.

2.3. Who can sue or to be sued

Similarity.

Both countries allow only registered people to sue for nuisance. In England and Wales, only landowners or people who have legal right can sue for nuisance (Stewart, 2006; Cracknell, 2003). But, in Mongolia, any person can sue for nuisance if he/she has been affected by the nuisance no matter if he/she does not own or have a legal right to that land or property, unlike England and Wales. However, the right of people to live healthily and safely is protected by the constitution which is dedicated for Mongolian citizens only (Baylagtsengel et al, 2012). In other words, both countries do not care homeless or unregistered people (Please see Appendix 5 for more information about homeless people living on dump sides in Mongolia).

In both countries, the creator of the nuisance may be sued no matter if he/she has any interest in the land from which the nuisance flows (State Great Khural, 2002; Brien, 2014) Independent contractors, landlords and tenants can be sued.

Difference.

In England and Wales, it is more in criticism that a wife or children of a land owner cannot sue for the nuisance, if they have no interest in the land, even when they were annoyed or disturbed by the neighbour's unlawful interference (Cracknell, 2003). But, according to new law, wife is able to sue (Deakin, Johnston and Markesinis, 2008). In contrast, laws in Mongolia allow every person to sue for nuisance if the land or property has been owned by a person who has acquired and registered it in a lawful way (State Great Khural of Mongolia, 2002). Therefore, wife or children can sue for nuisance even if they do not have an interest in land.

Also, in the Civil law of Mongolia, there is no specification about foreign country’s citizen temporarily living in Mongolia and tenants of properties who are not owners of that property or land whether they can sue or not. In Section 27 of the Civil law, there are clauses about rights of tenants and landlords, but, no adjustment about the nuisance. Thus, there is no clearance what actions can take the tenant or foreigner who is affected by the neighbour’s bad smell or loud noise. But, in the common laws of England and Wales, tenants are considered as people who have legal rights to sue for nuisance as they made an official contract so that they could obtain an interest in land (Fleming, 1998).

From one side, Civil law of Mongolia considers mainly citizens of cities that they live in apartments. But, many people live in private houses and gers. As the regulation about nuisance is unclear to the public, affected people do not know their rights and there is less probability to succeed in nuisance as the judicial corruption and bureaucracy make such civil wrongs unsuccessful (Mont, 2002; Anderson and Anderson LLP, 2009; Organisation for Economic Co-Operation and Development, 2014). From the other side, all the environment related laws focus on mining operation in the countryside or the ecological problems only. They do not consider the environmental issue in ger area or suburbs the cities.

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

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

2.5. Aspects in criticism and other major differences

England and Wales

Mongolia

Critique of the laws of nuisance:

- Cracknell (2003) considers that the law of nuisance allows a person to use his land in such a way as to injure another. That is because only the land owner or the person has a legal right can sue for nuisance.

- According to Bodleian Libraries (2015):

Another critique is in the report that a very small percentage of cases are reported in a law report series (either printed or online), only about 2%, due to the sheer number of cases being heard in England and Wales. Those that are likely to be reported are usually cases of legal importance. Since the growth of electronic sources, however, there have been unreported transcripts available on all the major legal databases but these consist of the judgement only.

- In England and Wales, there are many factors defining the private nuisance such as reasonableness, temporary or trivial affect, malicious conduct, abnormal sensitivity of claimants, moving to a nuisance and difficulties in bringing a nuisance. But, in Mongolia, there is no such in-depth and detailed specification regarding these matters. Thus, these specifications of England and Wales have been shown in
Appendix 8 together with other relevant laws in Mongolia.

Critique of the Civil law clauses related to the nuisance:

Battulga (2010) considers that the civil law allows a person to use his land in such a way as to annoy or disturb the neighbour by being protected by the clauses of the law. Those clauses within the Section 4 of the Civil law has stated that the neighbour cannot prohibit the neighbouring land-owner to stop his/her necessary affect if it is caused by the land or property’s trivial and necessary use and if it does not disturb or affect the use of the neighbour with the level exceeding the standard (State Great Khural, 2002).

In regard to the possibility of determining the disturbance or annoyance level according to the standard, there is a doubt. That is because the standards do not clearly indicate the tolerable or intolerable levels of noise, vibration, smell or any other effect. Even, there is no standard for noise, vibration, smell and air pollution related to a nuisance (Otgonsuren, 2010; Ulaanbaatar Fresh Air Project, 2013; Standardisation and Metrics Authority, 2010; Wikimon, 2014).

Moreover, the High Court explained the clause 135.2 of the civil law that the nuisance and affect level can be evaluated by the court by comparing the issue with similar operations of other neighbours in the environment (High Court of Mongolia, 2010). However, as mentioned above, the standard does not say anything concrete about the noise, smell, etc. level.

Sub-section 5 of the Civil law states that apartment users should respect the right of their neighbours. But this clause refers only to residents of apartments. Actually, only 40% of all residents of Ulaanbaatar live in apartments and others live in private houses and Mongolian ger accommodation suburb the city (Oyunbayar, 2013; Statistical Office of the Capital City, 2014). Thus, for the 60% of the residents this legal obligation is not relevant.

9.1.5 and 9.1.6 of the Waste Law of Mongolia (State Great Khural, 2012) states that every citizen is obligated to clean the waste around his/her living environment and must not to burn any waste (it is common in Mongolia to burn fallen leaves and grass to clean the land) in an open area. This clause is related to nuisance with bad smell of unclean or burned waste. However, as the law indicated that only citizens are obligated, many organizations burn it in the city, as the law has not prohibited legal entities to do so.

In clause 16 of the law, it is prohibited to establish a dump in areas with populated living area, protected water resource, mineral reserves and any other legally forbidden places. Other places like towns and rural areas are open to anybody to release waste and establish a dump. In these places, any hazardous gas, fume and annoying smell can arise. Even in suburbs the capital city Ulaanbaatar, there are three big dumps famous with their scavengers live in waste area (Hun, 2009) (please see Appendix 5 for brief information about dumps).

3. Public and Statutory Nuisance

3.1. Definition

England and Wales: Public nuisance

Public nuisance covers a number of interferences with rights of the public at large, such as environmental issues and planning violations. It is a criminal offence, where an act or omission materially affects the comfort and convenience of life of people (Heuston and Buckley, 1996). However, it is a tort and the crime, at the same time (Cracknell, 2003). “A public nuisance is when a person unreasonably interferes with a right that the general public shares in common” (Cornell University Law School, no date).

In public nuisance, affected people claim in respect of community-based activities rather than harm to their interest in land (Horsey and Rackley, 2015a). This matter relates to publicly related rights rather than an individual’s property rights. Moreover, public nuisance differs from private nuisance by its limitation to the interests in land. In private nuisance, person can claim for private nuisance only if he/she has an interest in the affected land. But, in public nuisance, there is no such limitation. Also, prescription is not a defence to a public nuisance, whereas it is a defence to a private nuisance (Cracknell, 2003).

England and Wales: Statutory nuisance

As mentioned before, nuisance of tort is decided by common law whereby some crimes are decided by statutes. In order to decide public nuisances injurious or prejudicial to health, statutes are applied (Wilde, 2015). That is because the common law of public nuisance has been replaced by statutory obligations to a large extent (Brien, 2014) and is imposed on individuals and public authorities. However, not every statutory nuisance is a private or public nuisance (Heuston and Buckley, 1996). Statutory nuisances are criminal offence created by statute. Statutory nuisance is specified in part III of the Environmental Protection Act 1990 (Wilde, 2015).

Mongolia

There is no special definition and requirement about public nuisance in Mongolia. As mentioned before, there is no common law in Mongolia; therefore, all laws are statutory. There are several laws that can be explained in comparison with the laws in England and Wales regarding the public nuisance. Some sections of Civil law (2002), Law about Commonly Owned Property in the Building Dedicated for the Apartments (2003); Law about Forests (2003), Law about the Sanitary (1998) and Law about Safety in Highway Traffic (2015) describe public nuisance related adjustments. Generally, relevant clauses of these laws are not combined to each other (Please see Appendix 9 for detailed analysis of these law requirements).

1.2.Widespread effect

England and Wales

Mongolia

To distinguish the public nuisance from a private nuisance, it must be shown that the affected persons constituting the public or a section of the public (Brien, 2014). However, it is unclear how many people can constitute the public (please see
Appendix 7 for cases). “As the public nuisance is a crime, and affects a class of people rather than an individual, claims are brought by the Attorney General for England and Wales as a "relator" where it represents the affected people” (Brien, 2014). Affected persons are allowed to sue individually, but it is possible for them only if they have suffered "special damage". The potential defendants will have a liability based on the criteria of being unreasonable. But, it will be determined by looking only at the interference, not the defendant's actions (Please see Appendix 10 for adjustments related to public and statutory nuisance in England and Wales).

The major issue is that the laws focus on general ecological problems, mining related land issues in the countryside and apartment related ownership and utilization issues in cities. But, the obligation of households and individuals not to disturb, annoy or affect the public is not considered. Thus, there is no specification about the widespread effect, even though public nuisance issues are harming the health of the public in practice (please see Appendix 5 and Appendix 9 for examples). Also, as there is no specification about individual’s affect to the others, households and citizens are not obligated to remedy the damage and/or to be fined once they have affected the public, while organisations do. As the 3.2. of the Criminal law states that this law must not be used as correlated adjustment, criminal law cannot be used in the occurrence of public nuisance. Therefore, it can be seen that the public nuisance is not defined, adjusted and enforced by law.

4. Conclusion

Private and public nuisance is considered as important in England and Wales. In fact, the common law system and laws of nuisance allow people to be protected by law and feel the full enjoyment and use of their land. It is a good practice that courts consider the specific occasions which are the important cases in law. That is because this flexibility and consideration of the situations give more opportunity to reflect on that and improve ones’ legislation and case laws. The long lasting history of England and Wales also contributed to this improvement as well as the country’s history that it has not been absorbed by any independent country so that they country could lost the historical improvement of its legal system.

In contrast, Mongolia has announced its independence only in 1911 from Qing dynasty that has absorbed Mongolia in 17^th century and ruled for over 200 years. Not long after this independence, the former Soviet Union has started ruling Mongolia until the revolution held in 1989. Thus, since 1990, Mongolia has developed its actual independent Constitution in 1992 and current laws were adopted. In other words, current laws of Mongolia have a history of only 25 years and yet there are many things to improve.

It has been demonstrated in the essay by referencing to a number of laws that are related to private and public nuisance. In general, the legal environment for both public and private nuisances is not only insufficient, but also it can be allowing nuisance to be hidden and affected neighbours and the public. In the result, people just tolerate all the damage by being unable to sue or to be protected by law. The example of the heavy air pollution of the capital city Ulaanbaatar containing high level toxic chemicals can be named. Moreover, the state organisations such as the Water Cleaning Facility also contaminate the rivers hugely by releasing the waste water to the Tuul River that is the drinking water of citizens and the livestock near the river. Unfortunately, some laws dedicated for protecting the environment have no specification about adverse effect of the polluted water, air, bad smell, fume, toxic gas and all the nuisance related aspects. Therefore, many occurrences are not being decided. Also, the citizens do not recognise that their operation of burning coals that pollute the air is affecting the public, actually all 1.5 million residents of Ulaanbaatar city. For private nuisance, current Civil law and other related laws consider only the countryside area and the effect of mining companies’ operation. The disturbance, annoyance and interference of people affecting the neighbours have not been criticised. As the law states that only extremely serious effects should be considered as nuisance, there is no possibility for people to be protected by law against any interference of their neighbours. Thus, the legal environment must be improved for now. It is good that researchers and lawyers have started studying the best practice of Germany and Australia so that these countries’ nuisance related laws can be adopted in Mongolia. Thus, this piece of work will also contribute to the subject as it will be published by the author in Mongolian.

In England and Wales, the distinction between public and statutory nuisance is considered confusing. Also, the private nuisance laws are in criticism that they are not consistent with current improvement of other laws. These sorts of justifications seem the sign of improvement. This is connected to the country’s history that it has been improving the laws and it shows that the country will still be improving them. It is the best practice of the country in contrast with Mongolia, where the there is nothing to protect people from adverse effect of their neighbours as well as the most polluting parties. Even the situation can be considered as an emergency situation (air pollution and water pollution). But, the government and parliament are still doing nothing to impose liability to the accused.

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Appendixes

Appendix 1. Characteristics of both countries that affect nuisance issues

England and Wales

In England and Wales, neighbour is relatively easy and more in need to define in contrast with Mongolia as many people (63.47 million people live in a territory of 240,000 square meters) live in cities and even farmers use fence. Population density is 417 residents per square kilometre in the UK in 2014 and 667 in England in 2015 (Office for National Statistics, 2015). There are 48083 towns in the UK (Townslist, 2016). It is one of the most densely populated countries in the world. The common (case) law system and nuisance related laws have been developed for many years in England and Wales (Welch, no date). That seems because of the country’s need in clear regulations of neighbour aspects as the country has a long-time history in city development. It can be seen from the evidence that the UK has 69 cities where 51 of them belong to England and 6 to Wales (Office for National Statistics, 2015).

Mongolia

In contrast, Mongolia is the least densely populated country in the world (Rosenberg, 2015). Currently, there are 3 cities and 21 centres of provinces (towns), where people live by using fence. All the other areas do not use fence. Thus, it is difficult to define the borders of lands to identify the ownership of the land. The majority (70%) of the population started living in the cities and towns since the revolution of 1989-1990. It means that the city related issues, including nuisance, are becoming attentive only for last 25 years. The first document that clearly explained neighbour and nuisance has been issued by the High Court of Mongolia only in 2010, where the document was issued in the form of its order explaining the relevant clauses of the Civil Law (High Court of Mongolia, 2010).

These days, 30% of the population still lives in the countryside where people do not use any fence or border. As population density in the countryside is 1.9 people per square kilometre, it is clear that only one family with 4 members live alone on the wide steppe of 4 square kilometre land. Thus, they do not need to use fence. Stock animals grass by themselves around home and sometimes they grass far than 10 kilometres per day and return to home before sun sets. Unlike English and Welsh people, herders do not grow grass on their land. They just use the natural grass. Thus, it is difficult to define the border in the countryside as herders do not use particular fence for their pasture livestock breeding. They use any land that they want to move to. The local neighbours recognise each other’s chosen place and it is very common that families use particular lands for summer, autumn, winter and spring by continuing the usage of their ancestors that continued for many hundred years. Every resident has a right to use the land for their pasture livestock breeding unless the land has been licensed to be utilized for any special operation such as mining, etc. This usage of land is more of culture and tradition rather than any written law, even there is no law that require herders to use fence and clear border of their ownership. Therefore, depending on the nature of Mongolians lifestyle in rural areas and on the newly established city life in 3 cities and a few towns, the nuisance issue is a relatively new subject for Mongolians (Battulga, 2010).

The lifestyle and culture of both countries may have influenced in legal environment and legal development. Major differences have been shown in below table.

No.	England and Wales	Mongolia
1	Density of the population and need in adjustment for neighbour relationships
	One of the most densely populated countries in the world with 417 people resident per square kilometre in 2014 (Office for National Statistics, 2015).	The most sparsely populated country in the world with 2 persons resident per square kilometre in 2014 (World Bank, 2016).
2	Territory and Population
	- 56.06 million population in England and Wales (53 – England, 3 - Wales).	- 3 million populations in Mongolia.
	- Territory of 0.24 million square meters, the 80^th largest in the world.	- Territory of 1.5 million square meter, the 19^th largest in the world.
	- The country’s urban population is 10.3 million, the fourth largest in Europe. - All the other people live in small towns where fence is used for farmers and any households.	- The country’s urban population is 2 million constituting 70% of the population. - 30% of the population live in the countryside where no fence is used (Trading economics, 2016).
	- Urban lifestyle is dominated historically. - In Wales, sheep farms dominate (80% of agriculture in Wales) and traditional techniques of farming are allowed (Wikipedia, 2013). Farmers grow grass on the meadows and buy hay from external sources as well. But, Mongolians use the wild grass and moves several times a year to choose appropriate place for their livestock in terms of pasture and weather condition. That is because the weather in Mongolia differs widely.	People have never been facing any urban issues, especially nuisance. Even it was happy to live together with other 1-3 families in a wide steppe because herding livestock is such a hard work in an extreme weather country (+30°C in the summer, -30°C in the winter) and more labour is always needed. In 1971, 55-60% of population lived in the countryside, but, now, only 28.8% reside in the countryside (837000 people). Therefore, the nuisance issue which is related to the neighbouring property and land is very new to Mongolians.

Appendix 2. Historical background

Historical difference of both countries that may have influenced in legal environment is shown below.

Britain	Mongolia
Roman conquest beginned in 43 AD and ruled southern Britain for 400 years.	Khun (wrongly written as Xiongnu) Empire, former Mongolia, was established in 209 BC and continued until 93 AD.
Most of the regions settled by Anglo-Saxons became unified as the United Kingdom in 10^th century.	There were dividable units of Mongolians in 10^th century and had wars with each other. In 1206, Mongol Empire is established again by uniting all Mongolian tribes.
Between 10^th 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 km²area and 22.6% of the world land area (Ferguson as cited by Wikipedia, no date).	The power of former Mongol Empire in 13^th 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 17^th 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 13^th and 17^th century, people were continuing the nomadic lifestyle. However, the country lost its independence to Qing dynasty, former China, in late 17^th 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 17^th and 20^th century, the country lost its numerous cities and King palaces by being disturbed by absorbed countries.

Appendix 3. Introduction about legal systems of both countries

First of all, the nature of the legal system in England and Wales versus Mongolian legal system needs to be understood. The difference is basically about common law system in England and Civil law system in Mongolia where similarity is in primary and secondary legislation in both systems.

In England and Wales, there are statutory laws, common laws, equity and statutory instruments (Welch, no date). Parliament issue general laws (parliament acts), named as statutory laws or primary legislation, which sometimes delegate power to implement and administer the requirements to the executive agencies where they develop secondary legislation that specify the meaning of those general laws (Welch, no date). Secondary legislation includes statutory instruments in the form of regulations, rules and orders; byelaws; special procedure orders; hybrid instruments and Church of England measurements (The National Archives, 2016; Parliament UK, no date). Under common laws, case laws are issued by judges to decide certain cases based on precedents and they interpret the general laws (The National Archives, 2016; Parliament UK, no date). In this way, it seems like the England legislation is friendly to its citizens and individuals that the case laws allow the country to consider the situation of its people based on every case set before the court and judge the current laws and regulations if they observe gaps in laws that they cannot be appropriate for deciding a particular case. Judges issue a new case law if they observed a new principally different situation. It presents that the country prefers the rights of persons and strives to protect the human right and health no matter what the current general laws regulate.

However, in Mongolia, the situation is different. As there are no case laws, only primary laws exist and, in some way, they are generic and are not appropriate for certain cases. Generally, the country’s legal system is based on civil law system originated from Romano-German laws (http://www.britannica.com/topic/civil-law-Romano-Germanic) where only codified primary laws are followed throughout the country when, sometimes, courts publish explanations to certain laws. Mongolian civil law 2002 is based on German civil law code (BGB – Civil Law Book) which came into force in 1900 (https://en.wikipedia.org/wiki/Law_of_Germany#Administrative_civil_law). Although the law in Germany has changed many times, Mongolian law remains using the content of the earlier version which was in force before the constitution developed in 1949 (https://en.wikipedia.org/wiki/List_of_national_legal_systems; https://en.wikipedia.org/wiki/Law_of_Germany). There is no case law and equity in Mongolia. Judges have no right to decide cases based on precedents and to issue a case law. But, there are secondary laws that specify requirements on how to comply with laws. They are in the form of rules and procedures.

In summary, the main difference in both systems is that codified statutes dominate in Civil law system while the Common law system recognises the importance of case laws (https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/). It results in efficiency of laws in terms of serving and protecting the people. However, there is also similarity that both systems have primary and secondary legislation where primary laws are issued by the parliament and secondary laws are made by sub-sequent responsible bodies (The National Archives, 2016; Parliament UK, no date) (Please see Appendix 1 for introduction about different lifestyles of countries that influence the nuisance issues).

Appendix 4. Statutes that regulate nuisance in England and Wales

The Environmental Protection Act 1990, the Water Industry Act 1991, the Clean Air Act 1993 and the Noise Act 1996 in relation to complaints arising out of environmental pollution and the Planning Act 2008 are related to planning decisions which adversely affect the rights of occupiers (Brien, 2014). As with public nuisance, statutory control has regulated duties between neighbours to a large extent. For example, the refusal of planning permission may prevent one occupier of land from interfering with the rights of his neighbour, e.g. the right to light. In some circumstances the tort of nuisance may also amount to harassment and so be covered by the Protection from Harassment Act 1997. The Act consolidates a range of statutory nuisances established by the Public Health Acts passed between 1875 and 1976 and the Control of Pollution Act 1974. Under Pt. III of the Environmental Protection Act 1990, local authorities are empowered to take action in respect of activities which constitute statutory nuisances. Other relevant acts are shown in below table.

No	Acts and their specifications about nuisance
1	Renting Homes (Wales) Act 2016. Part 3 states provision applying to all occupation contracts including the chapter 7 for Anti-social behavious and other prohibited conduct. The requirements for contract-holders have been stated as they should consider and avoid nuisance.
2	Deregulation Act 2015 c. 20. The environment etc. s. 58 Household waste: de-criminalisation . Under this act, requirements for the person not to make nuisance by his/her waste have been stated.
3	Anti-social Behaviour, Crime and Policing Act 2014 c. 12. Requirements for landlords and tenants regarding the nuisance issue have been set.
4	London Local Authorities and Transport for London Act 2013 c. v Part 5 for charging points for electric vehicles. Nuisance or a danger to users of a highway or a public off-street car park has been adjusted.
5	Local Government Byelaws (Wales) Act 2012 anaw. 2 Schedule 1 Lists of byelaw making powers Part 1 BYELAWS NOT REQUIRING CONFIRMATION, para. 1. Rights and obligations of county council and county borough council related to prevention and adjustment of nuisance have been set. Many clauses are related to the Public Health Act 1936.
6	Legal Aid, Sentencing and Punishment of Offenders Act 2012 c. 10. Requirements about injunctions for nuisance arising from environmental pollution have been determined.
7	London Olympic Games and Paralympic Games (Amendment) Act 2011 c. 22. Explanatory Note para. 1. Nuisance is considered to be considered and prevented durinh the operation of olympic games.
8	Education Act 2011 c. 2, Schedule 13 16 TO 19 Academies and alternative provision academies: consequential amendments. Para. 8. Nuisance or disturbance on educational premises has been identified in section 85A.
9	Police Reform and Social Responsibility Act 2011 c. 13. Explanatory Note, para. 1. Provisions about licensing in terms of controlling noise nuisance and public nuisance have been set in conjunction with Licensing Act 2003.
10	Crime Reduction Act 2006. Rights of local authorities in the case of alcohol related nuisance have been identified. Alcohol Disorder Zones enable local authorities to put in place a number of steps to reduce the nuisance and disorder, and also to impose charges on premises and clubs which supply alcohol within an Alcohol Disorder Zone.
11	Waste (Wales) Measure 2010 c. 08. s. 1 Charges for single use carrier bags: destination . The collection, management, treatment or disposal of waste in conjunction with protecting or improving the environment in relation to pollution or nuisances have been regulated.
12	Crime and Security Act 2010 c. 17. Explanatory Note, para. 3. Public nuisance is considered as one of actions to be taken for preventing of crima and disorder.
13	Flood and Water Management Act 2010 c. 29, Explanatory Note, para. 3. The owner of the building can be required to carry out a work of the condition is to be prejudicial to health or a nuisance.
14	Policing and Crime Act 2009 c. 26. Explanatory Note, para. 2. Cases that may cause nuisance have been explained with possible penalties.
15	Climate Change Act 2008 c. 27, Schedule 6 Charges for single use carrier bags, Part 1 Powers to make regulations about charges. Para. 4A Destination of proceeds – Wales. Protection or improvement of the environment in relation to pollution or nuisances has been explained.

Appendix 5. Vulnerable group in Mongolia (people live on dump side)

In Mongolia, there are many people who have no official registration in state due to their homeless situation. For example, there are a specific group of people who live on the site of garbage dump and live on the food they find from the waste collected from the landed trash in dumps. Some of them earn a little money by collecting and selling tins and bottles to recycling companies.

A dump named “Ulaanchuluut” covering 19000 m² lands where 330 ton waste is collected and landed every day is the biggest in Ulaanbaatar city (Hun, 2009). In the research conducted by Hun (2009), it has mentioned that people find the toxic gas, fume, bad smell and dangerous environment as difficulties in this environment. People are at risk of getting injured due to their own actions for reaching the new waste collecting truck before their competitors to find new waste because, only this way, they can find something new. For these people, there is no law for nuisance and they even do not imagine a life where they can live healthy and safe. This situation may seem unbelievable, but this is the real situation in 21^st century in economically weak countries like Mongolia. The difference between rich and poor people is enormous.

Picture. People living in “Ulaanchuluut” dump where around 5000 people live.

Appendix 6. Cases: Private nuisance

England and Wales

Damage

Damages for personal injuries are not recoverable in an action alleging private nuisance because the only harm recognised in private nuisance is interference with an occupier's use or enjoyment of land (Brien, 2014). However, such recovery for personal injury has been allowed under the rule in Ryland’s v Fletcher (1986) LR 1 Ex 265; (1868) LR 3 HL 330.

Followings are the cases related to the property damage in nuisance (Brien, 2014; Jones, 2002):

a. by encroachment on a neighbour's land, e.g. by tree branches or roots (Smith v Giddy (1904) 2 KB 448; Davey v Harrow Corporation (1958) 1 QB 60);

b. by direct physical injury to a neighbour's land, e.g. by flooding (Sedleigh-Denfield v O’Collaghan (1940) AC 880), vibration (Hoare & Co. v McAlpine (1923) 1 Ch 167), collapse of neighbouring buildings (Wringe v Cohen (1940) 1 KB 229) or noxious fumes which damage vegetation (St Helens Smelting Co. v Tipping (1865) 11 HL Cas 642); or

c. acts interfering with a neighbour’s enjoyment of his own property, e.g. through smells (Bone v Seal (1975) 1 All ER 787), vibration, noise (Halsey v Esso Petroleum Co. Ltd (1961) 2 All ER 145; Leeman v Montagu (1936) 2 All ER 1677), using premises as a brothel (Thomson-Schwab v Costaki (1965) 1 WLR 335) or a sex shop (Laws v Florinplace Ltd (1981) 1 All ER 659).

The example of encroachment on a neighbour’s land can be Delaware Mansions Ltd v Westminster City Council (2001) that the claimant’s flats were cracked by the root of neighbour’s tree as a nuisance. Also, Davey v Harrow Corp (1958) is a case where branches or roots of trees caused damage to a neighbour’s land as an action of a nuisance. In cases involving encroachment, the law will presume damage.

Examples of how property damage can occur as a result of nuisance include:

· The occupier of a house was liable for allowing the continuance on his premises of an artificial mound of earth which caused a nuisance to a neighbour, even though it had been put there before he took possession: Broder v Saillard (1875-76) L.R. 2 Ch. D. 692.

· Where an owner of land for his own convenience diverts or interferes with the course of a stream he will prima facie be liable if an overflow should take place and damage his neighbour's land: Sedleigh-Denfield v O'Callagan (Trustees for St Joseph's Society for Foreign Missions) (1940) A.C. 880.

· If trees encroach, whether by branches or roots, and cause damage, an action for nuisance will lie: Davey v Harrow Corp (1958) 1 Q.B. 60. Delaware Mansions Ltd v Westminster City Council (2001) UKHL 55; (2002) 1 A.C. 321 where it was held that an action will lie despite the fact that the damage occurred before the claimant freeholder acquired the freehold.

· A landowner who knows or ought to know of the potential danger to neighbours caused by natural deterioration of his property is liable in nuisance if he fails to take reasonable steps to avert such a danger: Leakey v National Trust for Places of Historic Interest or Natural Beauty (1980) Q.B. 485.

· If a landowner knows or ought to know that their property may cease to support another's, they are required to take reasonable precautions or they will be liable: Holbeck Hall Hotel Ltd v Scarborough BC (2000) Q.B. 836.

· Excess vibration caused by the defendant's demolition works: Hiscox Syndicates Ltd v Pinnacle Ltd (2008) EWHC 145 (Ch); (2008) 5 E.G. 166 (C.S.).

· A local authority was found liable for flood damage caused to a property when drains it had installed in a road, known to be a high flood risk, had become blocked: Vernon Knight Associates v Cornwall Council (2013) EWCA Civ 950. But, in Lambert v Barratt Homes Ltd (2010) EWCA Civ 681; (2010) B.L.R. 527, it was held that it was not fair, just or reasonable to impose on a local authority a duty to carry out and pay for relief work to an existing drainage system which had been blocked by a developer and caused water to accumulate on the local authority's land and subsequently damaged nearby properties.

In cases involving direct physical injury to neighbouring land, actual and not potential damage is essential to find a claim in nuisance. Sedleigh-Denfield v O'Callagan (Trustees for St Joseph's Society for Foreign Missions) (1940) A.C. 880. A local authority was found liable for flood damage caused to a property when drains it had installed in a road, known to be a high flood risk, had become blocked: Vernon Knight Associates v Cornwall Council (2013) EWCA Civ 950. But Lambert v Barratt Homes Ltd (2010) EWCA Civ 681; (2010) B.L.R. 527 where it was held that it was not fair, just or reasonable to impose on a local authority a duty to carry out and pay for relief work to an existing drainage system which had been blocked by a developer and caused water to accumulate on the local authority's land and subsequently damaged nearby properties.

People having interests in land can sue.

Hunter and others v Canary Wharf Ltd, Hunter and others v London Docklands Corporation (1997)

Further, in Hunter v Canary Wharf Ltd (1996) 2 W.L.R. 348, Pill L.J. held (overruling the judge at first instance): " A substantial link between the person enjoying the use and the land on which he or she is enjoying it is essential but, in my judgment, occupation of property, as a home, does confer upon the occupant a capacity to sue in private nuisance. " However, the House of Lords firmly rejected this approach in Hunter v Canary Wharf Ltd (1997) A.C. 655and overruled Khorasandjian in so far as it decided that a mere licensee could sue in private nuisance.

Wife or children of the land owner cannot sue if they have no interest in land

Malone v Laskey (1907) 2 K.B. 141 where the wife could not sue for nuisance even though the vibration of the neighbour’s machinery from the adjacent premises caused fall of the water cistern off the wall while the wife was using the lavatory.

No defence for moving to a nuisance.

Jones v Powell (1629) is a case where a brewery made stinking vapors waft to neighbours' property, damaging his papers. Because he was a landowner, the neighbour sued in nuisance for this damage. But Whitelocke J, speaking for the Court of the King's Bench, said that because the water supply was contaminated, it was better that the neighbour's documents were risked. He said "it is better that they should be spoiled than that the common wealth stand in need of good liquor." Nowadays, interfering with neighbours' property is not looked upon so kindly. Nuisance deals with all kinds of things that spoil a landowner's enjoyment of his property.

Difficulty of the application of laws.

St Helens Smelting Co v Tipping (1865) 11 HL 642. In this case, claimants bought an estate in a manufacturing area of town where the defendant operated a copper smelting works. Even though the claimant has bought a property in a previously existing nuisance, the court held that there is no defence.

The child had a right to restrain.

Khorasandjian v Bush (1993) Q.B. 727. It was held that, notwithstanding Malone, a child of the owner of the property had the right to restrain harassing telephone calls to the house.

Mongolia

There is no case registered. In the online search system of cases previously decided by courts (The Judicial General Council of Mongolia, 2016) the cases related to the land include only disputes about land ownership. There are no cases about nuisance. Even the category of cases in civil disputes contain only cases related to tenancy agreement of the property, but there is no section for neighbour’s rights that can be relevant to nuisance (The Judicial General Council of Mongolia, 2016). In the category of cases in administration issues, there is a sub-section “Land”. But, the content is only about ownership related issues or disputes about land certificate, etc. (The Judicial General Council of Mongolia, 2016). It shows that the country should improve the legal aspects in regard to Nuisance issues.

In 135.2 of civil law, the right of the claimant to be compensated by cash is permitted when the neighbour annoys or disturbs him/her by exceeding the permitted disturbance level. It shows an interference of a neighbour that cause nuisance. 135.3 states that the neighbour can require to avert any erection or building of a neighbour if it damages his land seriously. This clause shows a difference between Mongolian and English and Welsh laws because any kind of branches or roots of trees cannot be seen as serious damage in Mongolia. However, this kind of issue exists. For example, in some agriculture areas, such as a district named as 61-n garam, locating suburbs Ulaanbaatar, people plant vegetables. But, cucumber planting people consider that potatoes growers affect their harvest which can be considered as nuisance. Unfortunately, laws do not adjust such conditions. It is difficult to prove that potatoes growers affected cucumber harvest due to ground water usage or any species as there is a lack of good laboratories in Mongolia.

Appendix 7. Cases: Public Nuisance

Proving common law public nuisance.

For a public nuisance to be established, the prosecution must prove that the acts complained of affected a considerable number of persons or a section of the public and actual rather than potential danger or risk must be proved. In R. v Madden (Michael John) (1975) 1 W.L.R. 1379, the defendant made a 999 telephone call alleging that a large bomb had been placed in a local steel works, clearly intending the message to be acted upon. The telephonist informed the police and the telephone engineer in order that the call might be traced; she took no other action. The police informed the security officer of the steel works, who then organised a search of the works by eight members of the security staff for about an hour until it became clear that the telephone call was a hoax. There was no evidence that anyone other than the telephone staff, security men and police were affected or took any action as a result of the hoax call. The defendant was convicted on indictment of committing a public nuisance after the recorder had directed the jury to consider whether the public were likely to be affected by such a call as distinct from whether they were in fact so affected. Allowing the appeal against conviction, the Court of Appeal held that actual danger or risk to the comfort of the public was a necessary ingredient of the offence and accordingly the jury were misdirected. In addition, there was no evidence that the public had been so affected.

In Attorney-General v PYA Quarries (1957) All ER 894, the defendants argued the persons affected by the blasting operations at their quarry were not sufficiently numerous to constitute a section of the public. The only persons affected by their blasting operations, dust and vibrations created thereby, were the residents who lived close to the quarry. It shows that there should be a widespread effect to become a public nuisance. In this case, claimants argued that they could have claimed, at least, for a private nuisance. In addition, the claimants should establish that he/she suffered damage over and above the annoyance and inconvenience suffered by the public at large. The test for the required size of a "class" was also discussed in Attorney-General v PYA Quarries Ltd, with the court concluding that the test was whether the nuisance was "so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large" (Stewart, 2006).

Central to the concept of public nuisance is common injury to members of the public, and an individual single act could not fulfil the requirement of endangering the comfort of the public as a whole and obstructing the exercise or enjoyment of their rights. For example, a single act of soliciting a woman for prostitution within a recognised vice area by a male on foot could not amount to the common law offence of public nuisance: DPP v Fearon (2010) EWHC 340 (Admin); (2010) 2 Cr. App. R. 22. But, in R. (on the application of Hope & Glory Public House Ltd) v City of Westminster Magistrates' Court (2009) EWHC 1996 (Admin); (2010) A.C.D. 12, it was held that a public nuisance did not need to be very indiscriminate or widespread to amount to a public nuisance; it simply needed to be sufficiently widespread and sufficiently indiscriminate to amount to more than a private nuisance.

Claims by individuals

For individuals to bring a claim in public nuisance, they must prove that they have suffered special damage over and above the common injury suffered by the public at large. Importantly, and unlike the requirement in private nuisance, there is no requirement for a claimant to have a proprietary interest in the land affected by the unlawful interference: Colour Quest Ltd v Total Downstream UK Plc (2009) EWHC 540 (Comm); (2009) 2 Lloyd's Rep. 1, where it was held that whilst public nuisance embraced claims of those who complained of an interference with their use and enjoyment of land it was not confined to such claims. There was no requirement for a claimant to have a proprietary interest although that might be relevant to the issue whether the claimant's damage was special in the sense of being particular, direct and substantial.

Highway.

There is a considerable case law concerned with public nuisance and the highway. It is a public nuisance to obstruct the highway or to create a danger on, or close to, the highway.

If the highway is unreasonably obstructed, it is enough to cause a public nuisance. However, not every occasion of a person left a vehicle stationary on the road for a period of time is counted as public nuisance. But, Dymond v Pearce (1972) is the case showing a liability of a defendant in public nuisance. The lorry driver has left his big truck by parking on the road with parking lights. But, the motorcyclist collided with the lorry. In this case, the driver of the lorry was committed to the public nuisance for he has left the lorry on the highway. But, it is not related to the injury of motorcyclist as it was not foreseeable.

Another case is that the defendant’s theatre made a public nuisance where the queue waiting to get into the theatre made the claimant difficult to gain access to his premises. This is the case of Barber v Penley (1983) (Cracknell, 2003) and it shows a temporary obstruction on the highway can become a public nuisance.

Because of the wide definition given, there are a large range of issues which can be dealt with through public nuisance, including picketing on a road, as in Thomas v NUM, blocking a canal, as in Rose v Miles, or disrupting traffic by queuing in a road, as in Lyons v Gulliver.

Differing characteristic from the private nuisance.

A significant difference between private and public nuisance is that under public, one can claim for personal injuries as well as damage to property. Another difference is that public nuisance is primarily a crime; it only becomes a tort if the claimant can prove that they suffered "special damage" over and above the effects on the other affected people in the "class" (Stewart, W.J., 2006).

Causing considerable disruption and cost by threatening to jump from a motorway bridge: R. v Dallinger (Eric Charles) (2012) EWCA Crim 1284; (2013) 1 Cr. App. R. (S.) 38. The motorway had to be closed which led to a serious build-up of traffic and significant disruption. The estimated cost was more than £1 million. In R. v Osker (Donna) (2010) EWCA Crim 955; (2010) M.H.L.R. 115, the defendant pleaded guilty to one count of public nuisance by causing a multi-storey car park and surrounding area to be vacated when she stood on a ledge at the top of the car park cutting herself with a razor blade and threatening to "end it all".
Causing, allowing or permitting the dispersal of dangerous or noxious contaminants: Corby Group Litigation v Corby DC (2009) EWHC 1944 (TCC); (2009) N.P.C. 100.
Obstructing the highway: Attorney General v Gastonia Coaches (1977) R.T.R. 219.
Allowing a piece of land to be and to remain in such a state as to be a nuisance or injurious to health:Attorney General v Tod Heatley (1897) 1 Ch. 560. Dead dogs and cats, vegetable refuse, fish, offal, rubbish, and all kinds of filth thrown or deposited upon vacant ground belonging to the respondent constituted a continuing nuisance injurious to the health of the inhabitants of the parish.
Permanent and material interference with navigation on a river, amounting to obstruction and a public nuisance:Couper v Albion Properties Ltd (2013) EWHC 2993 (Ch)
It goes without saying that the above list is not exhaustive.

Appendix 8. Private nuisance related adjustments in both countries

England and Wales

Unreasonable affect.

Not every disturbance or annoyance is a nuisance. The nature of the locality where the nuisance took place, the time and duration of the interference as well as the conduct of the defendant are considered. The more reasonable and useful it is, the more likely it is that the claimant’s action will be unsuccessful (Cracknell, 2003). Likewise, the locality does matter. For example, a resident who bought a new house in a manufacturing district of a city cannot succeed in nuisance of smell or noise as the resident has chosen to live in a manufacturing area. Another example is the time and duration of the activity, where activities making noise may be reasonable at 10am, but the same activity undertaken at 10pm can be unreasonable (Halsey v Esso Petroleum (1961)).

Temporary or trivial affect.

If the breach of a tort is insignificant or trivial the court is likely to dismiss the case. Thus, for example, noise caused by children playing normally in a garden in daytime might be a nuisance but is deemed trivial and therefore not actionable (Welch, no date). Moreover, the construction of houses necessitate the making a noise, but this noise is temporary and necessary to achieve the goal of building houses. So, it is less likely to constitute a nuisance.

Conduct of the defendant.

When considering nuisance where there is no physical damage to the claimant's property but the nature of the offence is such as to cause him discomfort by means of, for example, noise, smells, dust or other interference with the use and enjoyment of his land, the courts will take into consideration such things as the character of the neighbourhood, the duration of the interference, whether the defendant has acted with malice and such other considerations as, for example, the claimant's abnormal sensitivity to the disturbance or whether the defendant has acted in the public good, although this is not, per se, a defence.

Malice.

There can be a nuisance motivated by malice. An example can be a case of Christie v Davey (1893). Here, the claimant was making a noise at home by annoying his neighbour because he was exercising music lectures by teaching to his pupils how to play the piano. Thus, the neighbour has started disturbing his classes by shrieking, whistling and beating on trays. It was held that the defendant was acting maliciously and an injunction was granted to restrain him from making these noises. In Christie v Davey, the defendant was deliberately creating a noise to frustrate the claimants; based on this, it was held that their actions were malicious, unreasonable, and amounted to a nuisance (Wikipedia, 2016).

Abnormal sensitivity

Where a person or property is abnormally sensitive to the injury inflicted, then provided the defendant's conduct was reasonable, the claimant will be unlikely to establish liability in nuisance. Sometimes, any abnormal sensitivity of the claimant can influence in the situation to claim it as a nuisance.

"Abnormal sensitivity" is where the claimant's damaged property is particularly sensitive to damage by the defendant's actions. In Robinson v Kilvert, it was established that the action of the defendant would not have caused damage for the abnormal sensitivity and the defendant was not liable. However if the damage was caused to abnormally sensitive property but would also have damaged non-sensitive property, the defendant is liable, as in McKinnon Industries v Walker. This was because it infringed on the "right to ordinary enjoyment"; as a result, the claimant could claim for his more sensitive activities as well (Wikipedia, 2016).

Moving to a nuisance

According to Wikipedia (2016):

Defendants sometimes argue that a claimant "came to a nuisance" by moving onto land next to an alreadyoperating source of interference. A new owner is entitled to the reasonable use and

enjoyment of his orher land the same as anyone else, but the argument may be considered in

determining the reasonableness of the defendant's conduct. It may also have an impact determining damages because the purchase price may have reflected the existence of the nuisance.

Thus, claimants cannot succeed if they have moved to a nuisance. The case of Sturges v Bridgeman (1879) can be an example. The defendant was a manufacturer of sweets by using certain machinery for more than 20 years. But, his new neighbour, a doctor, has built consulting rooms in his garden 8 years after the purchase of the house. The defendant’s machine was disturbing the doctor’s consultancy. In the nuisance action, the defendant claimed that he had acquired a right to make the noise by 20 years’ prescription. “It was held that there was no nuisance until the consulting rooms were built and that time did not begin to run until that date and so there had been no 20-year prescription” (Cracknell, 2003).

Difficulties in bringing a case

It is sometimes difficult to know when a nuisance amounts to a public nuisance (and as such is a criminal offence) or simply a private nuisance (actionable in the civil courts). Also, the private nuisance is under a range of criticism stating that it is confusing. Researchers think that the tort of private nuisance has "lost its separate identity as a strict liability tort and been assimilated in all but name into the fault-based tort of negligence",and that private and public nuisance "have little in common except the accident of sharing the same name” (Wilde, 2015).Criticism focuses on the lack of concrete definitions for legal principles and the idea of "reasonableness" (Wikipedia, 2016).^“While a definition for private nuisance is easy to find, the regularly accepted one does not consider that most private nuisance cases involve two occupiers of land; the "nuisance" has moved from the defendant's land to the claimant's land” (Wikipedia, 2016).

Mongolia

Unreasonable affect.

In Mongolia, there is no explanation about the conduct of the claimant and defendant. However, the law highlights the seriousness of the damage. As explained in above sections, the Civil law clearly defines that the trivial use of the land or property as well as its necessary release of permitted level of annoyance, damage or disturbance can be trivial. But, in order to become a nuisance, the level of the damage must be serious or too serious by exceeding the permitted level of noise, smell, or other affects. These regulations shows that the law strives to balance the interests of both parties. However, researchers criticise that the law considers the rights of defendants rather than the extent and location of the place where nuisance took place, etc. (Battulga, 2010 and Electroconism, 2009).

The law about fighting against boozing and carousing (State Great Khural, 2000) states that the bars, clubs, karaoke, pubs and other entertainment activities must not work in an area where University, Kindergarden or Residencial Apartments locate. However, section 7 specifies that these entertainment places can operate on the ground flow of the above mentioned educational and residential buildings if they are specifically designed and equipped with appropriate facility. In other words, the purpose of the law is to protect young people from excessive alcohol usage and protect the rights of residents to enjoy and use their apartments without any nuisance. But, those clause 7 ruins everything and it allows pubs and bars annoy and disturb the neighbours with smokes of smokers, noise and smell of alcohols enters to the property of households living upstairs through windows and commonly shared ventilation channels.

Temporary or trivial affect.

In Mongolia, there is no explanation about temporary or trivial nuisance. The 135.1 states that the neighbour cannot limit or prohibit the action and usage of the neighbour if the usage is trivial. Thus, the law considers the trivial usage. But, there is no clause about temporary actions. However, the temporary nuisance will not be considered as nuisance, in general, because the law protects the rights of defendant well. But, as mentioned above, the justice can decide any single case by considering the nature of the damage. However, there is no practice in terms of temporary and trivial nuisances to date.

Malice, Abnormal sensitivity, Moving to a nuisance, Difficulties in bringing a case

Currently, there is no adjustment.

Other related laws applicable in Mongolia that may be relevant to the private nuisance.

In 2005, a Law about Control of Tobacco has been approved. Thank to this new law, the nuisance caused by smoke has been decided. Before, any neighbour in apartment smoked in the lift and inside the building where no ventilators for smoke are installed. This smoke annoyed many neighbour families. Smoke from bars and pubs should also be mentioned. Usually, the ground and first floors of residential apartments are used as bars and pubs where people smoked heavily and the smoke affected the neighbours living upstairs through window or commonly shared ventilation channels. As there is no specific law about nuisance or as there is no case for suing about private nuisance, this kind of nuisance issues could not been decided before the Law about Control of Tobacco has come into force.

The Law about the Apartment (1999) prohibits property users to violate the rights of other property users. But, there is no specification about private nuisance.

In 2012, Waste Law has been issued. But, the scavengers’’ and affected people’s issues are still not decided under this law as the law permitted to establish big dumps near families (Please see Appendix 5).

The Law for Protecting the Environment 1995 states that the citizen has a right to claim remedies for compensating his/her damage if any guilty party has negatively affected his health and property. From the other side, if the citizen has damaged the environment, he/she is obligated to compensate the damage (2.1. of the law). In 15 of the law, the Ministry of the Environment is responsible for all the environmental policy for the countryside, natural resources and the general ecological issues. But, there is no clause about the environment in cities, especially the living environment of residents that can be polluted or affected by neighbours, even though 2.1. of the law defines the environment as all surrounding area of the people. It shows that the adjustment related to the neighbours living near to each other, especially in cities, is the new subject for Mongolia. Section 49 of the law required the person damaged the environment to pay fine to the government for harming ground, water, forest and animals. But there is specification about whether that person should pay remedy to the affected household or the person if he/she has damaged the neighbour’s land, water, forest and animals.

18.4 of the Law about Evaluation of Environmental Affects (2012) stated the duty of Environmental evaluation companies, which assess the environmental risks for mining and other land related operation running companies, to consulate with citizens of surrounding area about possible effects of those mining or other operations to their health and lifestyle. Like this statement, all the other clauses of this law is dedicated for the companies operating in the countryside, but, there is no consideration about the construction, road building, infrastructure and mining companies operating in cities, especially near the apartments or house (ger) areas.

22.2 of the Law about Land (2002) states that the Governor of the Khoroo and Soum (small units of districts in cities or provinces respectively) is responsible for ensuring protection of the environment, proper use of the land, and hygiene and sanitary of the environment.

52 of the law adjusted the land usage of pasture breeding herders to use the land of the countryside pleasantly for choosing the seasonal places so that all herders can adhere to the coordination of the Governor. In the countryside, nuisance issue can arise from mining operation, but not from other households (see Appendix 1 for Mongolian lifestyle in the countryside).

Appendix 9. Public Nuisance related adjustments in Mongolian laws (Analysis)

In the Civil law 2002, Law about commonly owned property 2003 and Law about Forests 2003, there is no specification about the requirement of the number of people to sue for public nuisance. It is because of no specified distinction between private and public nuisance in Mongolian laws.

The major issue in public nuisance in Mongolia is the air pollution. More than 175,000 households living in ger (yurt) areas burn coals to warm their house during the winter as they do not have any other heating system like electricity or gas heaters (they do not use electricity heaters as they are expensive) (Ulaanbaatar Post, 2014; Edwards, 2015; The World Bank, 2012). These households interfere to the right of other residents of Mongolia, who definitely constitute the public, to breathe fresh air. But, due to lack of legal requirements for public nuisance, nobody has been sued for this public nuisance. Battulga (2010) suggests that public nuisance can be resolved by utilizing the clause 497 and 502 of the civil law that respectively contain requirements about the guilty person who has affected the health, …, environment, and property of the public and any other person “must recover the damage” and “must be in charge of compensating those who have affected”. So, if this clause can be enforced in relation to the clause ‘rights of neighbour’ in the Civil law, the number of families coming to ger areas from the countryside may be decreased and the government can become able to limit the number of residents burning coal during the winter. The air pollution is obviously a widespread effect of pollutants.

In the 19.3 of the Law about Toxic and Hazardous Chemicals 2006 (State Great Khural, 2006), it has stated that people using toxic or hazardous chemicals in a way of harming health and well-being of other people and the environment are in criminal offence. 20.1 stated that the guilty party is in charge of compensating and recovering damage of those use of chemicals that affected health of people, environment, livestock and property of people. This clause can be used for those people who burn forbidden items containing hazardous chemicals. In detail, many poor households in ger district burn car tires, plastic bags and other waste for making their home warm as they do not have money to buy coal or electricity heater (Eric and Bethany, 2016; Aghajanian, 2015). From one side, it is related to the poverty, but, from the other side, they are affecting the health of the public and the environment because those items release seriously harmful chemicals in the air when burned.

In 136 of the Civil Law of Mongolia, it is forbidden for every land owner or user to contaminate the river, change the direction of the river, worsen the quality of the water and use the water by limiting the watermark if the river passes through the land of several land owners or users. This is similar to the laws of England and Wales where this kind of nuisance can be considered as both private and public nuisance.

In 143 of the Civil law, the rights of the Property owners’ union have been stated. This union is in charge of the public area of any apartment or house so that the union should ensure the normal usage of property owners by not disturbing each other with waste smell, noise, water flood, etc. Its main purpose is to protect the rights of property owners. The members of the union should be owners of properties in any particular area of residence and they will constitute a legal entity “Property Owners’ Union”. The maintenance and cleaning service of the public area such as water basin, garage, playing area for children, resting area for elders and other fitting like lifts, lights, gates, water channels and heaters are under the control of this union. Thus, it charges the amount of money from property users so that it can operate to provide the residents with convenient living environment.

The clause 149 of the civil law states that the Property Owner’s Union can sue the defendant if that family or person does not respect the common rules of living in an apartment together with others and violates his/their legal obligation.

However, this adjustment refers to only 40% of the population in capital city Ulaanbaatar where 60% of them reside in ger districts where people live houses or ger (Oyunbayar, 2013; Statistical Office of the Capital City, 2014). The nuisance issue should be more relevant to this Ger-District where financially weak people live in these areas. Moreover, these districts use coal for their temporary heater and it makes heavy air pollution during the winter. This case should have considered as public nuisance as the total population living in Ulaanbaatar are affected by toxic chemicals contained in the polluted air. In the Law of Payments of Air Pollution (2010),

Moreover, the Law about Commonly Owned Property in the Building Dedicated for the Apartments (2003) includes the types of damages and actions to take for such damages. Write more about it

The Law about Forests (2003) states that no family can live in or nearer than 200m from the forest. However, there is no section about the public nuisance. It should be considered how that unlawful residence in forests can harm health of people or the environment so that it can become public nuisance. Suburbs Ulaanbaatar, there are a summer camping lands for residents where forests and rivers exist. But, people build own houses in the forest by cutting the trees and affecting the healthy lifestyle for surrounding public by throwing waste all around, building toilette on the ground and establishing road ways for their cars by ruining the green grass and rivers all around (Government of Mongolia, 2014; Altantsetseg, 2008). It affects the watermark of the rivers nearby and researchers remind that many rivers are contaminated by people living near and many water resources dried up (21 rivers, 29 rill, 2 holy water and 2 lakes have dried up in Ulaanbaatar) (Ulaanbaatar area commission, 2011).

Section 5 of the Law about the Sanitary (State Great Khural, 1998) states that the citizens and organisations should protect water resource, rivers and water channels from contamination. But, the implementation of this law is not visible. The example has been talked above that the water and rivers are contaminated hugely due to human activity, especially in summer camping areas of the capital city. Clause 5.2 states that the organisation in charge of water distribution should control test and protect the quality of drinking water. Unfortunately, this law is not being implemented. For example, facility in charge of cleaning waste water of Ulaanbaatar cannot clean the waste water and release so much waste water into the river Tuul that is the drinking water of many countryside families and livestock (Ministry of the Construction and City Planning, 2013). 6.1. of the law states that the living, working and studying area of the human must have quality air which is compliant to the dedicated standards. However, current air pollution in the capital city shows that the law is not implementing. That is because there is no specification about person’s and households’ legal duty and obligation as well as the lack of adjustment what action can be taken in such situation. Section 8 of the law states that the buildings and facilities dedicated for residency or service must meet sanitary requirement so that they cannot harm health of the people. But, there is no clause about residents’ duty that they should live by complying with sanitary requirements. Thus, the Property Owners’ Union works on behalf of residents living in apartments in cities that they clean the entire environment and handling issues related to waste. But, for ger areas in cities and in the countryside, there is no such organisation, so the sanitary requirements are not in concern.

Electroconism (2009) explored that the law of Germany, which is the base of Mongolian law system, has been changed in 1974 and its Law about Protecting from negative affect from the Environment has included nuisance issued related to air pollution, noise, vibration and other similar effects. He advised to learn from the improvement of laws of Germany so that nuisance issues can become clear in Mongolian laws. That is because Mongolian legal system and law has based on Roman-German law system which was adhered in Germany before 1949. But, Mongolia has not updated its laws ensuring the nuisance is stated clearly even though the laws of Germany have been improved under the influence of the European Union legislation (Rheinstein, 2016).

The Law about Safety in Highway Traffic (State Great Khural, 2015) states that if any vehicle has violated the safety rules and disturbed the driver to participate the traffic safely, that vehicle driver should compensate the damage and to be fined. It is not a criminal offence unless there is a loss of human’s life or too serious injury to people caused by the driver’s wrong acts.

Moreover, 4.1.6 of the Air Pollution Law Compensation 2010, it has stated the air polluting citizen, economic entity and organisation are the payers of air pollution remedy. Section 5 of this law specifies that the air polluting coal miners, auto vehicles and parties polluting the air from big generators of polluting elements are obligated to pay remedies. However, there is no specification about households and persons polluting the air and affecting the others’ right to live healthy. The clauses 5.5, 5.6 and 10.1 state that organisations polluting the air must pay fine, nut, if the level of pollution exceeds permitted level, they are considered as the criminals and decided by the Criminal Law of Mongolia. In this way, it can be seen that the Mongolian laws are striving to punish air polluters by considering the damage as the crime.

The Air Law 2012 of Mongolia is dedicated for preventing any kind of air pollution and adjusting air related aspects. However, this law does not consider air polluting households as defendants of the public nuisance. The Government itself takes the duty of decreasing the amount of air pollution and implements various projects for providing coal burning households with electrical heaters and/or heaters that release less fumes from coal burning (6.1.5-6.1.6 of the law). That is maybe because of economic capability of the people. Section 9 indicates that the citizens and organisations are obligated to adhere to the law, regulations and normative related to air. However, as there is no specification about acts of households that fumes released by their homes are not considered as civil and criminal wrong, households do not take themselves responsible for the public nuisance. According to 9.1.8 and 9.1.10 of the law, citizens have a right to sue companies and organisations for their fume, dust or any other effect to the neighbours and the public. But, again, there is nothing about rights for sueing against households that they affect the health of the public.

As the nature of the countryside is ruined by mines, the Law about Mineral Resources (State Great Khural, 2006) is relatively good. Section 41 of the law states that the companies exploring mineral resources or mining the side must ensure the safety and protection of the environment. If the company has affected any of summer, spring, autumn and winter quarters of herders or any other property during its operation, it must compensate the damage fully to the affected people and must cover all the expenses related to the recovery of those properties. This adjustment is similar to the public nuisance because the purpose is to ensure that those mining companies do not affect and damage the property of surrounding public. There are also clauses about the mining companies’ duty that they should ensure the health and safety of the surrounding public must be protected, if harmed by any dust or fume, the company should compensate. If the company will not adhere to the requirements of the law, the special license of that company will be cancelled and will not be recovered for up to 20 years as well as the act will be considered as the criminal offence.

14.5 of the Law about the Apartment (1999) prohibites property users to block the roadway around his property. This requirement is similar to the public nuisance in England and Wales.

Appendix 10. Public and statutory nuisance adjustment in England and Wales

Prejudicial to health

Section 79 of the 1990 Act lists various activities and circumstances which may constitute statutory nuisances if they result in a state of affairs which is "prejudicial to health" or a nuisance. This encompasses the keeping of premises; the emission of smoke, fumes, gases, dust, steam, smells, effluvia; the accumulation of material; the keeping of animals; the emanation of insects from commercial premises; the emission of artificial light; noise from premises; noise from vehicles or machinery in the street; any other matter declared to be a statutory nuisance by enactment.

1. Section 79 of the 1990 Act lists certain activities, such as the emission of smoke or the accumulation of substances, which will constitute statutory nuisances if deemed "prejudicial to health or a nuisance".

2. As s.79 makes clear the term "prejudicial to health or a nuisance" is the key legal test for determining whether the above activities or circumstances constitute statutory nuisances. It should be noted that the terms "prejudicial to health" and "nuisance" are used in the alternative which means that there is no need to fulfil both criteria; each is independent. Thus an activity may constitute a statutory nuisance even if it is not prejudicial to health. The extent to which it is necessary to specify whether a matter is prejudicial to health or a nuisance depends on the circumstances. In R. (on the application of Fullers Farming Ltd) v Milton Keynes Council (2011) EWHC 3784 (Admin); (2012) Env. L.R. 17, concerning odours from a pig farm, it was held that the distinction was not critical in terms of understanding what abatement action was necessary.

3. Any person can instigate statutory nuisance proceedings in the magistrates' court pursuant to s.82 EPA 90. This procedure has proved especially useful where it is the local authority, which is the regulator in statutory nuisance matters, which is itself to blame for the nuisance.

4. Locus standi is afforded to "persons aggrieved", a phrase which has been interpreted widely in other contexts although it is likely to exclude "busy-bodies" who are not directly affected in some way. Thus the procedure has been used against local authorities by council tenants in respect of the state of their properties. For example, Sandwell MBC v Bujok (1990) 1 W.L.R. 1350

5. If the magistrates' court is satisfied that a nuisance exists it can make a nuisance order requiring the abatement of the nuisance. Failure to comply with a nuisance order issued by the magistrates is a criminal offence and gives rise to a maximum fine of £5000 and 10% of the fine imposed for each day the nuisance continues.

Certain accumulations or deposits on land could constitute contaminated land. However, contaminated land is subject to a specialist liability regime under Pt IIA EPA 90 and s.79(1A) precludes such contamination from the scope of statutory nuisances.

Many large-scale industrial premises are subject to the environmental permitting regime introduced under s.2of the Pollution Prevention and Control Act 1999. A range of the pollutants which may constitute statutory nuisances are also governed by the permitting regime which imposes emission limits and so forth in respect of such elements. This raises the possibility that enforcement action taken by a local authority in respect of, for example, dust, steam, smells or effluvia, could conflict with permitting conditions governing those elements. In such circumstances s.79(10) EPA 90 provides that the local authority must first obtain the consent of the Secretary of State.

Local Authority role- inspections and enforcement

Under Pt III of the Environmental Protection Act 1990, local authorities are empowered to take action in respect of activities which constitute statutory nuisances. The local authority is required to inspect its area for statutory nuisances and to respond to complaints brought by members of the public. The principal enforcement mechanism is the abatement notice which requires the person causing the nuisance to cease the offending activity and rectify any damage. Failure to comply with an abatement notice may give rise to criminal liability. Members of the public may also institute proceedings in the magistrates' court.

Friends of the Earth (2008):

If a local authority is satisfied that a nuisance exists, it must issue an abatement notice against “the person responsible”. This can include anyone from a landlord/owner, to a local authority or a tenant. If a local authority finds that a statutory nuisance exists and decides not to take enforcement action (by issuing an abatement notice) they will be acting unlawfully and you can make an application for judicial review of their failure to take action. An abatement notice must require the nuisance to be prohibited or its occurrence/recurrence restricted and/or works or other steps to be carried out to comply with the notice. It will also set out a time limit for compliance with the notice.

Friends of the Earth (2008):

Failure to comply with an abatement notice without reasonable excuse is a criminal offence. The test for a reasonable excuse seems to be whether a reasonable person would think that the excuse given fits in with a reasonable standard of conduct. If the abatement notice is breached deliberately through circumstances within the defendant’s control, then they are unlikely to be able to argue that they have a reasonable excuse. It is for the prosecution to show that the excuse is not reasonable. The maximum penalty for breaching an abatement notice is a £20,000 fine for industrial, trade or business premises and a £5,000 fine and £500 daily penalty for other premises. If a complaint was initially made by an individual to a local authority, then the court has a power to award compensation to the person concerned.

If a local authority takes the view that criminal proceedings for breaching an abatement notice would not be enough, or that the abatement procedure notice would not be effective, it can apply to the High Court for an injunction. The court has discretion as to whether to grant an injunction, and the particular nuisance will need to be of a sufficient weight and/or urgency to justify this course of action. Breaching an injunction is contempt of court which can result in a two year prison sentence or an unlimited fine.

Powers and Duties of Local Authorities

Local authorities are charged with enforcing the law pertaining to statutory nuisances pursuant to s.79(1). Moreover s.79(1) makes it clear that local authorities must, from time to time, take positive steps to detect statutory nuisances in their jurisdictions and respond to complaints brought by members of the public. In order to carry out these duties Sch.3 of the EPA 90equips local authority environmental health officers (EHOs) with the wherewithal to enter premises, take measurements and carry out tests.

The primary enforcement mechanism of the local authority is the abatement notice, the requirements of which are set out in s.80. If the authority is satisfied that the nuisance exists, is likely to occur, or recur in its area it is required to serve an abatement notice against the person responsible for the nuisance. The notice must be clear and must require the responsible party to take such steps as are necessary to abate the nuisance or prevent its occurrence or recurrence within a given compliance period. The party to whom the notice is addressed may appeal to the magistrates' court on specific grounds including; the matter does not constitute a statutory nuisance; there is a procedural defect with the substance or form of the notice; the notice is unduly onerous or unreasonably precludes alternative means of abating the nuisance; the time limits for compliance are unduly restrictive and the best practicable means (BPM) were used to prevent or counteract the nuisance. Additional procedural requirements for appeals are set out by the Statutory Nuisance (Appeals) Regulations 1995/2644.

A failure to comply with an abatement notice may give rise to criminal liability under s.80(4) of the Act and the penalties are set out in ss.80(5)-(6). In short, where the nuisance occurs on non-commercial premises, the maximum penalty is £5000 plus a recurring penalty of 10% of the fine for each day the nuisance continues post-conviction (thus £500 where the maximum penalty has been imposed). Where the nuisance occurs on commercial premises the maximum penalty is £20,000 (here there is no provision for a recurring daily penalty).

There are alternative options available to the local authority where an abatement notice is not complied with. Firstly, under s.81(5) EPA 90 the local authority may seek an injunction in the High Court requiring abatement of the nuisance. This remedy would clearly be preferable where a fine would not provide the party concerned with an inadequate incentive to abate the nuisance. An injunction is likely to be providing a greater incentive in that failure to comply with its terms constitutes a serious contempt of court leading to possible imprisonment. However, the High Court is only likely to use its discretion to grant an injunction in the most serious cases.

Secondly, the local authority can abate the nuisance itself and recover its costs from the person responsible for the nuisance; ss.81(3)-(4) EPA 90.

Liability for non-compliance with an abatement notice is not strict in that s.80(4) EPA 90 provides that it is an offence to comply with an abatement notice "without reasonable excuse" and s.80(7) establishes a defence where the defendant can show that he used "best practical means" (BPM) to prevent the harm from occurring.

The EPA 90 differs from the earlier Public Health Acts in that there is a positive duty incumbent on local authorities to take positive steps to detect statutory nuisances and to respond to complaints. This means that a local authority could be exposed to judicial review proceedings if it fails to exercise its powers. However, the term "from time to time", which denotes the frequency with which local authorities are expected to undertake inspections, is not defined. Thus the intensity of the measures which the authority is expected to take is uncertain as is the extent to which budgetary constraints and so forth can be taken into account.

Defences

According to Friends of the Earth (2008):

Defences where an abatement notice relates to activities carried on at a trade or business premises, it is a defence in some circumstances to show that the best practicable means (BPM) have been used to prevent or counteract the nuisance. BPM involves having regard to local conditions and circumstances, the current state of technical knowledge, and financial implications. There are also specific defences for complaints of noise and nuisance on construction sites and in areas where there are registered noise levels.

Remedies

Statutory nuisance is very much the creature of law in the UK and there is no direct link with EU law. However, the ability of local authorities to abate nuisance themselves and recover the costs from the polluter provides one of the means by which the UK seeks to comply with Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage

Potential Overlaps with Other Areas of Law

Many of the harms which may constitute statutory nuisances are of a similar nature to those which are covered under other regulatory powers; although the scope for duplication has been reduced by the manner in which the legislation has been drafted.

Dark smoke from industrial and commercial premises, for example, which is dealt with under the Clean Air Act 1993, is specifically excluded from the definition of statutory nuisance as is smoke from private dwellings in a smoke control area; s.79(3) EPA 90.

Many large-scale industrial premises are subject to the environmental permitting regime introduced under s.2of the Pollution Prevention and Control Act 1999. A range of the pollutants which may constitute statutory nuisances are also governed by the permitting regime which imposes emission limits and so forth in respect of such elements. This raises the possibility that enforcement action taken by a local authority in respect of, for example, dust, steam, smells or effluvia, could conflict with permitting conditions governing those elements. In such circumstances s.79(10) EPA 90provides that the local authority must first obtain the consent of the Secretary of State.

Best practicable means

As noted in the detailed discussion, the concept of best practicable means (BPM) can operate as a defence to a criminal prosecution for failure to comply with an abatement notice or as a ground for appealing against the issue of an abatement notice. The BPM concept is well established in environmental law and requires the polluter to show that he has used the best means available to reduce the harm taking into account practicalities and cost. The manner in which BPM should be applied in the context of statutory nuisances has been the subject of some case law although it is very much a decision which has to be made on a case-by-case basis. In St Albans City and DC v Patel (2008) EWHC 2767 (Admin); (2009) Env. L.R. 22, for example, it was held that the licensee of a public house had adopted the BPM to reduce noise from his premises by reducing the size of the pub garden.

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

Classification of Civil cases decided by the court

Classification:

- Procurement contract and commercial contract

- Bank loan

- Loan from financial organisation

- Other loans

- Present

- Tenancy agreement

- Financial rent (leasing)

- Franchising

- Using a property on a free basis

- Contracting for performing a task

- Contracting for paid work

- Employment contract

- Tourism

- Transportation

- Job task

- Property right delegation

- Storage

- Insurance

Classification of Criminal cases decided by the court

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

Classification of Administration cases decided by the court

Classification:

- Election

- Tax

- Land ownership, land certificate

- Mineral resource

- Tender

- Social insurance

- Special license

- State registration of ownership rights of properties

- Labour of the state organisations’ officers

- State control and monitoring

- State and local proprietary

- State registration of legal entities

- Privatisation of apartments

- State duty

- Other

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

1. Introduction

1.1 Introduction to tort of nuisances

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

1.3.Introduction to the document

2. Private Nuisance

2.1. Definition

2.2. Adjustment

2.3. Who can sue or to be sued

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

2.5. Aspects in criticism and other major differences

3. Public and Statutory Nuisance

3.1. Definition

1.2.Widespread effect

4. Conclusion

Reference

Appendixes

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