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SMS 1: Quarry owners conducted their operations in a manner that caused neighbouring householders serious discomfort by vibration from explosions and by the dust emanating from the quarry in dry weather, which frequently resulted in a film of dust being deposited on their homes and gardens. The vibration caused personal discomfort and some structural damage to houses.
SMS 2: The local authority, had built and maintained a sewer which ran under the streets of the city. The sewer, carried the waste and foul water from its catchment area into a larger sewer. The sewers were kept properly cleansed by the local authority, but in time of heavy rain and the sewer was heavily taxed by the volume of sewage.Back pressure is created in the sewer and the streets where ground floor shoplots in TOPSTAR shopping complex are located are flooded with sewage.
E MAIL : A local authority owned a vacant and unfenced plot of land. The authority allowed indiscriminate tipping to take place on the land. Items deposited there included large quantities of building materials, brick ends, old reinforcements, earth, scrap iron, broken glass, tin cans and household refuse. The authority removed the household refuse periodically but took no action to remove the other materials dumped. CITIZENS' RIGHTS SABAH, a public watch dog group is considering to file a complaint because the accumulation was prejudicial to health and people who went on to the land, particularly children, might hurt themselves on things which had been tipped there, such as broken glass or tin cans. Further the pile of rubbish constituted a nuisance because of its visual impact on people living in neighbouring houses.
LEX BORNEO: One of the objectives of LEX BORNEO is to inform and highlight for the benefit of the public the existence of Sabah Laws. These are laws that are unique to Sabah and are passed by the Sabah State Legislative Assembly or its predecessor the State Legislative Council of North Borneo before September 16, 1963.
The law dealing with the situations described in the above text messages and e~mail would be classified as public nuisances and would probably come under the Public Health Ordinance 1960, namely Section 89 onwards.
1) What is a public nuisance?
First and foremost we need to distinguish between what is a public and a private nuisance. A nuisance is a public nuisance, if it materially affects the reasonable comfort and convenience of a class of the subjects of the State of Sabah. A private nuisance, however, is one which disturbs the interest of some private individual in the use and enjoyment of his property by interference with the usual enjoyment of property. This takes place by causing or permitting the escape of substances or things such as smoke, odours or noise. The difference between a public and a private nuisance is that, in regard to public nuisance, rights which are common to all subjects are infringed. Such rights are unconnected with the possession of or title to immovable property.
2) What amounts to public nuisance under the Public Health Ordinance 1960?
Under Section 89 of the Public Health Ordinance 1960 a ‘public nuisance’ is defined as follows:~ (a) any vehicle in such a state or condition as to be prejudicial to health; (b) any unlawful obstruction in any street, road, track, path, harbour, lake, river or channel lawfully used by the public; (c) any tank, well or excavation dangerous to the public by virtue of being in an unfenced or insufficiently fenced condition; (d) any building or part thereof which is of such construction or in such a state or so situated or so dirty or so verminous or so damp as to be likely to be prejudicial to health or which is liable to favour the spread of any infectious disease; (e) any street, road, track, path or any part thereof, or any stream, pool, ditch, gutter, watercourse, sink, watertank, cistern, water-closet, earth-closet, privy, urinal, cesspool, soak-away pit, septic tank, cesspit, soil-pipe, waste-pipe, drain, sewer, garbage-receptacle, dustbin, dung-pit, refuse-pit, slop-tank, soak-pit or manure-heap, so foul or in such a state or so situated or constructed as to be offensive or to be likely to be prejudicial to health; (f) any growth of weeds, long grass, tree, undergrowth, hedge, bush or vegetation of any kind which is, or is liable to be, prejudicial to health; (g) any source of water supply or any cistern or other receptacle for water, whether public or private, the water from which is used or is likely to be used by human beings for drinking or domestic purposes, or in the manufacture or preparation of any food or drink which is in a condition liable to render any such water prejudicial to health; (h) any noxious matter or waste water, flowing or discharged from any premises, wherever situated, into any public street or road, or into the gutter or side channel of any street or road not provided for the reception of such discharge; (i) any collection of water, sewage, refuse or other fluid or solid substance, or any cesspit, latrine, urinal or ash-pit, which is in such a state or so situated, constructed or maintained as to permit, or be liable to permit, the breeding or development of any of the lifestages of mosquitoes, flies, helminths or other insects or parasites which may convey or cause diseases of human beings or domestic animals; (j) any stable, cowshed or other buildings used for keeping of animals or birds which is so constructed, situated or maintained as to be offensive, or which is prejudicial to health; (k) any animal which is so kept or is in such a condition as to be offensive or prejudicial to health; (I) any accumulation or deposit of refuse, offal, manure or other matter whatsoever which is offensive or which is prejudicial to health; (m) any accumulation of stones, timber or other material of any nature whatever if such is likely to harbour rats or other vermin; (n) any premises in such a state or condition or any building so constructed as to harbour or be likely to harbour rats or other vermin; (o) any dwelling, trade premises or other building which is so overcrowded as to be prejudicial to health of the inmates, or which is dilapidated or defective in lighting or ventilation; (p) any public or other building or tree which is so situated, constructed, maintained or used as to be unsafe or prejudicial to health; (q) any building or dwelling capable of occupation for which such a proper, sufficient and wholesome water supply is not available within a reasonable distance as in the circumstances it is possible to obtain; (r) any trade premises not kept in a sanitary state and free from offensive smell arising from any drain, privy, water-closet, earth-closet or urinal, or in which suitable and adequate arrangements are not made to destroy or render harmless and inoffensive as far as practicable any gases, vapours, dust or other impurities generated; (s) any trade premises causing or giving rise to smell or effluvia which are offensive or prejudicial to health; (t) any area of land kept or permitted to remain in such a state as to be offensive, or liable to cause any infectious or preventable disease; (u) any chimney sending forth smoke in such quantity or in such a manner as to be offensive or prejudicial to health; (v) any cemetery, burial place or crematorium which is so situated or maintained as to be offensive or prejudicial to health; (w) any gutter, drain, stack-pipe, down-spout, water-tank or cistern which by reason of its insufficiency or its defective condition causes damp in any building; (x) any deposit of material in or on or alongside any building which causes damp in any building; (y) any dwelling, public building, trade premises or workshop not provided with sufficient and sanitary latrines; (z) any other nuisance which the Minister may by order declare to be a nuisance.
3) Under the Public Health Ordinance 1960 who has the duty to prevent a public nuisance?
Under Section 90 of the Public Health Ordinance 1960 every local authority has a duty to prevent public nuisances. The section reads as follows:-
90. Duty of local authority to prevent nuisances. It shall be the duty of every local authority to take such measures as may be necessary for maintaining its area at all times in a clean and sanitary condition, and for preventing the occurrence therein of, or for remedying or causing to be remedied, any nuisance or condition liable to be prejudicial to health, and to take proceedings at law against the author of any nuisance. .
4) When a nuisance is discovered or reported what is the local authority expected to do under the Public Health Ordinance 1960 ?Under s 92 of Public Health Ordinance 1960, a local authority, if satisfied of the existence of a nuisance in its area, may serve a notice on the author of the nuisance requiring him to abate such nuisance within the time specified in the notice. The word ‘abate’ means simply to do what is required to end the nuisance.
5) What happens next if the author of the nuisance fails to comply with notice to abate?
If the person fails to comply then the local authority may cause a complaint relating to such nuisance to be made before the Magistrates Court of and the Magistrates Court may thereupon issue a summons requiring the person on whom the notice was served to appear before it. The Magistrates Court shall make an order against the author of the nuisance requiring him to abate the nuisance within a time specified in the order.
6) Even after the order is made by the Magistrates Court and the author of the nuisance fails to comply what can then be done?
If the author still fails to comply then the local authority by its officers may enter any premises to remove or prevent the nuisance and do whatever may be necessary in the execution of the order, including the demolition of any premises that is the source of such nuisance in certain appropriate circumstances.
7) What is the penalty for the offender causing the nuisance?
The penalty is set out in section 103 which reads as follows:~Any person convicted of an offence under this Part shall be liable to a fine of one thousand ringgit and where the offence is a continuing offence, one hundred ringgit for every day during which the offence continues.
8) Can any member of the public sue the author of the nuisance if the local authority fails to exercise its powers to deal with and eliminate the nuisance?
Any private individual cannot sue in respect of a public nuisance unless he has suffered special damage.
9) What is special damage?
Special damage consist of actual out of pocket expenses and losses suffered by a particular litigant from the date the nuisance took place up to the date of trial. For example if a buisnessman starts a pub in Taman Kingfisher with a juke box and live band performances that is the source of loud and excessive noise late into the night and the wee hours of the morning, no action for public nuisance can be taken by a person who does not reside in Taman Kingfisher and who does not directly suffer from the nuisance created. This is the distinguishing factor for public nuisance. You need to prove special damage if you want to take out a suit for public nuisance.
10) What about the case where special damages are not suffered by an individual. Can he then still sue?
In such a case a potential claimant has to satisfy section 8(1) of the Government Proceedings Act 1956. Under this section there must be at least 2 persons willing to sue the author of the nuisance and they must get the consent in writing of the Attorney General. Section 8 of the Government Proceedings Act 1956 reads as follows:-
8 Public nuisances
(1) In the case of a public nuisance the Attorney General, or two or more persons having obtained the consent in writing of the Attorney General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.
11) What if I am unable to get the consent of the Attorney General? Or what if there is delay in getting consent? Can I do anything?
It may still be possible to get the local authority to carry out its duty under Section 89 of the Public Health Ordinance 1960 to deal with instances of public nuisance. This may be done by way of judicial review, and by applying to the High Court for what is known as a writ of mandamus.
12) What is a writ of mandamus?
The writ of mandamus is a particular type of court action sought to enforce public duties. It is a command addressed to any administrative authority requiring it to do some particular thing it ought to do by statute. The writ thus acts as a corrective to irresponsible action or inaction by the body or authority concerned.
13) Does this application require the consent of the Attorney General like Section 8(1) of the Government Proceedings Act 1956?
Although there is no decided case on this issue, it is probable that no consent is required since Section 8(1) of the Government Proceedings Act 1956 does not deal with judicial review or the remedy of mandamus.
14) How to apply for a writ of mandamus?
The application for the writ of mandamus is governed by the Rules of the High Court, namely what is known as Order 53.
Under this order an application should be made ex-parte to the High Court judge for an order of mandamus. Ex-parte mean only one side, namely the party that makes the application appears in the hearing without the presence of the other party. The application is made supported by an affidavit together with a statement of facts of the grounds and facts of the applicaton for judicial review stated in a concise form.It must be served on the office of the Attorney General at least 3 clear days before the application is heard in Court.
The application would look like something in this form:-
(LEX BORNEO note:- All references to persons in this document is purely fictitious and bears no relation to any person or body corporate either living or dead)
Notice of application for leave to apply for order
under Order 53 Rules of the High Court 1980
IN THE HIGH COURT OF SABAH & SARAWAK
AT KOTA KINABALU
ORIGINATING MOTION NO 777 OF 2006
In the matter of S. 89 of the Public Health Ordinance 1960
AND
In the matter of Order 53 Rules of the High Court 1980
Between
P. NEW SANDS … Applicant
and
MAJLIS DAERAH BUNDU TIGA … Respondent
EX PARTE APPLICATION FOR LEAVE
TAKE NOTICE that the Court will be moved on the 1st day of April 2007 at 10 am or soon thereafter as the Applicant can be heard for an Order that the Applicant be granted leave to apply for
a) an order of mandamus directed to the Respondent for the removal of a Toyota Land Rover identified as WES 0028 and situated in the middle of the street identifed as Jalan Tiga, Taman Brekdown which is in such a state or condition as to be prejudicial to health of the residents and visitors to Taman Brekdown;
(b) An order of mandamus directing the Respondent to demolish the building identified as Block 200, Wisma NORTON, which is presently in a state of unhygenic conditions and is in such a state as to permit, or be liable to permit, the breeding or development of any of the lifestages of mosquitoes, flies or other insects or parasites which may convey or cause diseases of human beings or domestic animals; (c) an order of mandamaus directing the Respondent to undertake the removal of rubbish twice a week from the garbage-receptacles and dustbins of Taman Busuk, Phase 21, which are so foul or in such a state as to be offensive or to be likely to be prejudicial to health;
AND FURTHER TAKE NOTICE that the Statement and Affidavit pursuant to Order 53 Rule 1(2) of the Rules of the High Court 1980 are filed in support of the application.
Dated the 8th day of October 2006
X X X
(Signature)
The Applicant Registrar, High Court
This Ex Parte Application for Leave is taken out by the Applicant whose address for service is at Lorong Biasa, Jalan Biasa, Kita Kenabuli, Syabas.
WHY JUDICIAL REVIEW?
In these times one cannot escape the daily grouses of the population against the public services or lack of services provided by the relevant authorities being voiced out constantly in the news media and traditional meeting places such as the kopitiams or coffee shops. Court actions such as judicial review represent an effective solution to such problems, even if the results take time due to the nature of the court process.
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