Public Nuisance: Beyond Highway 61 Revisited?

Private and public nuisance are traditionally common law torts with contrasting characteristics. Yet, in an environmental context dominated by statutory controls, the remedies provided by these torts are widely recognized means of addressing some kinds of environmental nuisances that affect private rights, so much that they are now technically referred to as environmental torts. Drawing on recent decisions of the UK and Nigerian courts, this paper examines, amongst other things, the key features of these torts and the scope of their relevance in the overall scheme of environmental protection. Overall, the paper suggests that even as these mechanisms continue to be useful means of protecting private rights, there remain certain drawbacks in the scope of their application such that they cannot always provide solutions to the environmental challenges that private individuals and groups suffer.

Economic Torts and Economic Wrongs, 2021

Dyson, Goudkamp and Wilmot-Smith (eds), Defences in Tort, 2015

In this chapter, I examine the defence of statutory authority in the law of private nuisance. I argue that if we let our guard down, the de facto extension of the defence could put at risk the continued vitality of private nuisance as a cause of action. Recent developments in the law of private nuisance have threatened in effect to extend the defence of statutory authority to encompass the defendant's compliance with regulatory regimes governing his activity, and at least some instances in which planning permission has been granted for the use of land causing the alleged nuisance. I argue that there are fundamental objections to these de facto extensions of statutory authority, and that they are inconsistent with core features or aspects of that defence. The core message of the chapter is summed up by Tony Weir's characteristically pithy remark that 'administrators cannot authorise torts'. Keywords: tort law, private nuisance, defences, statutory authority, planning permission, regulatory compliance.

The relevance of public interests in private law is at the heart of some central divides in tort scholarship. This paper argues that public interests pervade private nuisance cases. The uncertain and contested nature of public interests, and the absence in both the case law and the scholarly literature of an abstract definition of what is to count as a public interest, do not prevent these matters from playing a significant role in tort. In these circumstances, it is important to reflect on how we might set about articulating the public interest. This paper argues that administrative decisions that are intended to serve the public interest can in some cases provide a defensible vision of public interest for the purposes of private law. An examination of the process by which regulatory decisions were reached can provide indicators to assist in identifying and evaluating the strength of claimed public interests.

Nolan and Robertson (eds), Rights and Private Law, 2011

The thesis of this chapter is that private nuisance can only properly be understood as a tort which protects rights in land, and that, understood in this way, it is a thoroughly coherent cause of action. I begin by introducing this 'property tort analysis' of private nuisance and by providing a definition of the tort. The bulk of the chapter is then devoted to showing that the central doctrines of private nuisance law are consistent with the property tort analysis. In the remainder of the chapter, I look at the relationship between private nuisance and trespass to land, identify some sources of confusion which have served to obscure the underlying coherence of private nuisance and consider the implications of the property tort analysis for the traditional distinction between property and obligations. I finish off by making some more general observations about the value of a rights-based analysis of private law. Keywords: private nuisance, rights in land, property law, law of obligations, trespass to land.

Hoffmann (ed), The Impact of the UK Human Rights Act on Private Law, 2011

The purpose of this chapter is to explore the different aspects of the relationship between the tort of private nuisance and the Human Rights Act 1998 (" HRA "). The chapter is divided into three main parts. In the first part, I consider the " vertical effect " of the HRA in environmental nuisance cases. In the second part of the chapter, I consider the relationship between the vertical effect of the HRA and the law of nuisance. In particular, I identify the advantages and disadvantages for a claimant of the two possible routes to redress, and the interrelationship between the two types of claim when they arise on the same set of facts. And in the third and final part of the chapter, I consider the possible " horizontal effect " of the HRA on the law of nuisance itself, looking in particular at the standing rules and the statutory authority defence. I conclude that the horizontal effect of the HRA on the law of nuisance is likely to be very limited. Keywords: private nuisance, human rights law, European Convention on Human Rights, Human Rights Act 1998, vertical effect, horizontal effect.

McFarlane and Agnew (eds), Modern Studies in Property Law vol 10, 2019

One meaning of the word ‘essence’ is the feature or set of features that defines a thing. My claim in this chapter is that the essence of the tort of private nuisance in this sense is interference with (or impairment of) the usability of the claimant’s land. Although this claim is merely a clarification of the orthodox definition or conception of the tort, the clarification turns out to be significant. Furthermore, while this central defining feature of private nuisance is well-established, it has been the subject of very little sustained analysis, and one of the aims of this chapter is to begin the task of plugging that gap. And finally, the orthodox conception of private nuisance has come under attack recently, and there is a danger that without a robust defence of it the coherence and utility of the tort will be compromised. In this chapter I seek to provide such a defence. The chapter is divided into three main parts. In the first part, I show how orthodox it is to define private nuisance by reference to interference with the use and enjoyment of land, seek to clarify this defining idea as concerned with the abstract usability of the land, and consider the implications of this analysis for the scope of the private nuisance action. In the second part, I summarise and then critique a recent challenge to the orthodox conception of the tort, which I call the ‘physical invasion’ view. And in the final part, I briefly consider some of the implications for property theory of the orthodox conception of private nuisance, properly understood. Keywords: tort law; property theory; private nuisance; definition; interference with usability of land

Social & Legal Studies, 2002

2011