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1. What is the nature of the harm being controlled by private nuisance?
You might get a question like this in your preparation for seminars. Basically, it is asking you to look at the harms (or harmed interests) that the tort of private nuisance aims to protect against. A straightforward answer to this would be just to say 'land interests', but better answers would explore more exactly what is meant by land interests (whose, for example, and – importantly – who is left out) and may also even draw comparisons with other torts and the interests that they protect – the obvious example being negligence.
2. In negligence, duty of care (and in some cases, the standard of care) is used as a means of restricting claims. Where are such limitations to be found in nuisance?
This is the type of question you might be given for an assessed piece of coursework or even in an exam. It requires you to have knowledge of the foundational principles of private nuisance and – less obviously – also an ability to be able to see the underlying reasons why these principles might have been developed by the courts. It is this type of analysis (and not merely a description of the limitations on claims) that will distinguish an average essay from an excellent one. Why, for example, do judges want to, or feel it necessary to, restrict the claims that could/should be brought? A starting point would be a short explanation of private nuisance and the interests it seeks to protect (see Q1).
The limits of a claim in private nuisance are guided by the parameters of the claim itself and an essay on this topic should discuss these parameters, particularly where they are driven by a deliberate desire to limit the number of successful claims that may be taken. Undoubtedly there is a lot of material that can be included in an answer to this question and the level of detail that you go into is going to depend on the word limit or any other guidance you are given. It is very possible to answer this question well, showing both a good depth of knowledge and an ability to interpret that knowledge.
Possibly the most 'serious' limitation to nuisance claims – and the one most clearly based on policy considerations (as the limits placed on claims in negligence often are) is the requirement that anyone suing must have sufficient ‘standing’. This is the restriction in nuisance that has the closest parallel, particularly in terms of its function, to duty of care in negligence. Restricting standing to mean having a proprietary interest in the property/land concerned (as the House of Lords did in Hunter v Canary Wharf [1997]) will clearly mean that many affected by their neighbour's behaviour will not be able to sue – good answers will include some discussion on who this might leave out (and better answers will consider the potential implications of this, including in human rights terms – see e.g. McKenna v British Aluminium [2002] and also Dobson v Thames Water Utilities Ltd [2008] and Dobson & Others v Thames Water Utilities Ltd (No 2) [2011], discussed in section 18.3.2 and 18.4.3).
Limitations are also to be found in the 'matrix of factors' that need to be considered when taking a nuisance action (now brought fully up-to-date after Coventry v Lawrence [2014]) and in particular what makes an ‘unreasonable user’ of land. However, caution needs to be exercised not to allow an essay to turn into a mere list of these factors with a brief description of each, with little analysis. Good students will see that not all the things considered within this matrix are limitations on claims – it depends, for example, which way they would weigh on the scales and whether there are different possible interpretations of them should they manifest themselves. The 'nature of the locality' is an example of a factor that can be interpreted in a variety of ways, has been discussed at length both judicially and academically and has clearly, as has been evidenced in case law, been affected by policy considerations. Better answers would again, having discussed the locality principle, how it works and what it means in practice (using case examples), consider who the rule leaves out, whether this is deliberate on the part of the judges, and also whether there are any deeper implications of this (such as in relation to human rights and/or the wider aims of tort law). Some good discussion of the locality principles came in the High Court judgment of Fearn and others v The Board of Trustees of the Tate Gallery [2019] (though note that because of the Court of Appeal’s decision in that case, the locality principle does not now form one of the bases for the decision).
That said, factors such as 'intensity' (including duration and frequency of the nuisance) are interesting too – while it does not seem that this is a factor limiting claims, it may play a part in the remedy awarded; a different type of limitation. Prior to recent interpretations of the right to injunctive relief in Coventry [2014] (see section 18.3.3 and 18.4.1 in particular), there have evidently been some cases where, despite high-intensity nuisance, the seemingly appropriate remedy of an injunction (to stop the nuisance) was either not awarded or awarded only in part (see e.g. Dennis v MOD [2003]; Miller v Jackson [1977]). Why was this and was this a restriction on the ability of people to sue (effectively) in nuisance (see Marcic v Thames Water Authority [2003])? Similar points could be made in a discussion on the idea of the defence of 20-years' prescription and the idea of coming to a nuisance (see e.g. Sturges v Bridgeman [1879]; Miller v Jackson [1977] – and also Coventry), among others (again the amount that can be included here comes back to how much space there is in the word count).
Another case that ought to be discussed as it has significance and is very clearly a decision driven by policy considerations and a desire to restrict claims is Network Rail Infrastructure Ltd v Morris (t/a Soundstar Studio) [2004]. This case introduced a strong idea of reasonable foreseeability into the law on nuisance – a concept more familiar from negligence law and perhaps meaning that the use of nuisance is being restricted in a more particular way – better answers would be exploring this and the implications of it – but now must also take into account the comments on this made in Fearn and others v The Board of Trustees of the Tate Gallery [2019] (again bearing in mind the later judgment of the Court of Appeal).
Overall, a good answer on this topic is not merely going to be descriptive (i.e. describing or listing what limitations exist on claims), but will have shown thought about what these limitations or restrictions mean in a broader context. This outline is not meant to be exhaustive, or even an 'answer' in draft form, but merely sketches out some possibilities and the type of things that could be thought about and analysed in answering this question. More ideas could be drawn from some of the further reading that is listed at the end of the chapter.
3. Do the land torts appropriately weigh the interests of the individual against those of wider society?
Here we have a question that is clearly asking for an opinionated answer. But an answer to a question of this type must be grounded in the law and intelligent analysis of this. A focus would need to be taken that looked at cases where individual interests (e.g. of the claimant, but possibly also/or the defendant) were championed over and above those of wider society – and vice versa. Careful consideration, within this, needs to focus on what the interests of 'wider society' might be in terms of land use. Clearly, this could encompass communities or even the country as a whole – can you think of case examples where 'community' or 'country' has 'won' out over an individual's interest in their land? What about in terms of the environment? It is also worth noting here that as the question asks about 'land torts' it would be appropriate to include some discussion of trespass as well as nuisance (and possibly even actions under Rylands v Fletcher, discussed in chapter 19). The second part of this question is to ask whether any individual or societal focus that is apparent in a case or cases (or a general approach) is 'appropriate' – this is the part where your own opinions need to drive what you say, but must be grounded in a clear definition and argument about what appropriate means.
4. Do the land torts protect landowners' interests too much, or not enough?
This is essentially just another way of asking the question asked in question 3, though with a more direct focus on landowners. Again, as the question asks about 'land torts' it would be appropriate to include some discussion of trespass as well as nuisance (and possibly even actions under Rylands v Fletcher, discussed in chapter 19).