Common law environmental protection: the future of private nuisance, Part II

• Author: Robert Charles Palmer
• Position: Bristol Law School, The University of the West of England, Bristol, UK

Introduction

This article is the second part of an analysis regarding the future potential of private nuisance as a mechanism for environmental protection. It is suggested that the English common law of nuisance has always engaged with environmental problems, and is indeed among the earliest forums for environmental protection the world has known. A continual trend of common law environmental protection commenced in the twelfth-century and has meandered through the epochs until the modern day. Common law nuisance represents the precursor to government coordinated legal mechanisms to control the manner in which man utilised and exploited land. It was with the advent of environmental legislation in the nineteenth-century and the first land use and planning and control Act at the turn of the twentieth-century (the Housing and Town Planning Act 1909) that nuisance law began to fall out of use.

The birth of modern environmentalism in the 1970s has seen a steady revival of nuisance law as a “tool” for environmental protection. But, some relatively new modifications to doctrine and borrowed principles have – in the meantime – become obstacles to establishing an actionable nuisance and apportioning liability whilst the statutory regime that exist alongside nuisance law is often being seen as unsatisfactory at regulating increasingly polluting domestic activities and corporate enterprises thus criticised for failing to deal effectively with environmental protection. Indeed, some have gone as far to say that modern-day statutory regime not only fails to solve the problem but have served to escalate matters ( Higgins, 2010 ).

It can be argued that the environmental legal regime is too convoluted to best serve the true interests of environmental protection making a common law alternative for redress somewhat more attractive to a number of potential litigants. Whilst some commentators have identified that private nuisance functions as an additional “access point” to the courts to challenge decision-makers, or as “reserve option” when statutory regulation fails to effect adequate environmental protection ( Steele, 1995 ; Lee, 2003 ), it is generally overlooked that nuisance law not only has a part to play amongst maligned environmental regulation but that can also have an exclusive role to play in environmental protection. Supreme Court intercession on the matters discussed over these articles could reinforce that role.

There have been concerns that private nuisance could theoretically be extinguished and some have predicted that private nuisance was going to be entirely “absorbed” by negligence ( Steele, 2007 ). There is no real evidence that private nuisance is going to entirely yield to its younger cousin, negligence, nevertheless negligence's doctrines are much more user-friendly and despite their conceptual independence decisions in the twentieth-century have assimilated a measure of negligence into nuisance doctrine. Unfortunately their conceptual independence has revealed doctrinal difficulties. Whilst some may believe that is part of a natural cycle of the common law evolving, sadly the conceptual disparities mean using negligence principles in nuisance is not so much changing the rules of the game but rather changing the game entirely.

This article offers an examination of the doctrinal problems associated with including the hegemonic language of negligence into the realms of nuisance doctrine, in particular reference to fault and reasonable foreseeability following the decision in Cambridge Water v. Eastern Counties Leather¹. Arguably it was judicial attempts to deal with the intricate form of nuisance that negligence principle began to be assimilated into nuisance doctrine. This borrowing of principles has revealed a cross-infection of conceptually different dogma. A fundamental shift in notions has confused the issues of actionability and liability and to some extent an overlap has been created. The decision in Cambridge Water introduced fault and foreseeability into the nuisance action as a measure of liability. Before Cambridge the court's inquiry assessed the circumstances of each case to discover whether an actionable nuisance existed. If that investigation determined there was an actionable nuisance then remedy would be forthcoming. Since Cambridge there has been a paradigmatic shift from where proceedings proved – or otherwise – harm beyond what someone ought to endure to assessing liability for what would normally be actionable. It will be seen that the decision in Cambridge Water is at odds with the binding authority of Tipping without having overruled it².

We next turn to the injunction. The issue of the public interest (or public utility) overriding private proprietary rights in private nuisance cases has been a temporary glitch on a number of occasions since the nineteenth-century. However, on each occasion the common law has reacted in a manner to ensure private interests prevail in this land-based tort. Medway³ and Dennis⁴ offer unique insights into the way public interest and utility often challenge the endearing sanctity of private nuisance as a remedy for interferences to private propriety right. Finally the potential potency of injunctions for environmental protection is considered. The issues addressed in this article portray the manner in which private nuisance has been polarised since the nineteenth-century. On the one hand the courts have been willing to ensure that the tort fulfils its potential for environmental protection by awarding injunctions virtually as of right ( Buckley, 1981 ), whilst on the other claimants have arguably been placed in the most unfavourable position to protect their private proprietary rights over nuisance law's near 1,000 year history.

Fault and foreseeability of damage

It is somewhat thematic that Lord Goff's comments in leading private nuisance actions in the modern era cause controversy (and confusion) at the core of the tort. Arguably those can be attributed largely to a misunderstanding of its historical development; comments in Hunter and Cambridge Water[1] fully support that supposition. His reasoning in Cambridge is particularly significant for it heralded the wholesale introduction of the language of negligence into the realms of private nuisance whilst addressing the matter of liability in terms of foreseeability of damage based on the notion of the hypothetical reasonable man⁵. It was at this juncture that the reasonableness of the defendant's conduct became embedded in nuisance proper and the traditional notion of reasonableness (in nuisance terms) perverted. Lord Goff's declaration that negligent conduct is an important consideration in the context of nuisance liability has clearly caused complications in a sphere of law where liability has been traditionally strict. Aptly, Murphy avers that the most confusing question in the whole of private nuisance today is whether liability is strict; it is difficult to dispute that claim ( Buckley, 1981, pp. 54-55 ).

Palpably a parallel between the hypothetical reasonable man and reasonable user cannot be readily drawn because in negligence “fault of some kind is almost always necessary, and fault generally involves foreseeability”⁶ whereas something “may be done deliberately, and in good faith and in a genuine belief that it is justified”⁷ but still be construed a nuisance. This suggests a stricter form of liability is intrinsic within the theory of nuisance that “did not tolerate any injury to health and property of another”⁸; indeed “nuisance is, typically, ‘stricter than’ negligence”⁹. In Cambridge, Lord Goff remarked that “liability for nuisance has generally been regarded as strict” and made the point that the principle of reasonable user had previously kept liability “under control”¹⁰. By nature of those observations, on the face of things, he is recognising first that liability is traditionally strict and second that as the reasonable user test should be utilised to keep that liability under control. The nature of liability in nuisance is not legal responsibility for the damage caused by an act or omission based on culpability rather liability is based on the product of known damage. In that respect conduct is irrelevant, instead the extent of damage is crucial to the outcome of the case.

We can infer therefore that both liability and the test are exclusive but Lord Goff implies that reasonable user is a prerequisite of liability based on the conduct of the hypothetical reasonable man, rather than the consequences of the activities of known individuals in succinct circumstances. Traditionally the investigation into reasonable user is necessary to establish whether an alleged interference “surmounts the threshold of interference necessary to give rise to an action” ( Cross, 1995 ). In parallel with the notion of actionability discussed previously in part I, it is a case of balancing competing users of land, which is something entirely different to reasonable user containing a precondition of liability based on the foresight of damage to one's neighbour. In Carnwath LJ's words in Biffa: “reasonable user is at most a different way of describing old principles, not an excuse for re-inventing them”. Essentially the test is a mechanism for addressing “clash[es] between two potentially irreconcilable principles”¹¹; the legal responsibility (liability) of neighbours lays with Baron Bramwell's famous rule of reciprocity¹² that evolved into the reasonable user test. Emulating Bracton, who spoke of the “natural right” (of seisin) for man to do what wanted on his own land but ( Winfield, 1931 ), on the...