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Published online by Cambridge University Press: 03 April 2017
This article considers the principle in the tort of private nuisance that the level of protection to which one is entitled from certain kinds of interference is sensitive to one's locality. It argues that the principle can be partly justified by the different costs of avoiding an interference which different localities create. However, it shows that, if the principle is to be justified in its entirety, a further justification is necessary. The article considers further justifications based on social rules, autonomy, cost minimisation, the idea of a system of equal right and an analogy to the rules on hypersensitive claimants. It largely rejects these explanations and concludes that, to the extent the locality principle requires individuals to bear substantial burdens that they would not have to bear were collective interests set aside, without compensation, it is difficult to justify.
1 §906 II 1 BGB. This is relevant, however, only to the existence of a duty to tolerate the interference (Duldungspflicht). If this is made out, then an injunction is excluded, but not damages: ibid.
2 Some of its arguments may, however, carry across to the similar principles in German and French law.
3 The reasonableness of the claimant's expectation of privacy can depend upon location in the tort of misuse of private information. Only in private nuisance, however, is there a relatively distinct “locality principle”.
4 Beever raises this concern in relation to the locality principle. See Beever, A., The Law of Private Nuisance (Oxford 2014), 31–33 Google Scholar.
5 The version proposed by Ernest Weinrib. See Weinrib, E., Corrective Justice (Oxford 2012)CrossRefGoogle Scholar. See, however, Weinrib, E., “Private Law and Public Right” (2011) 61 University of Toronto Law Journal 191 CrossRefGoogle Scholar, 200–211.
6 Lawrence v Fen Tigers Ltd. [2014] UKSC 13. See below, Section IV.
7 See generally Murphy, J., The Law of Nuisance (Oxford 2010)Google Scholar, at [2.33], [2.38]–[2.41].
8 St. Helens Smelting Company v Tipping (1865) 11 E.R. 1483, 1486–87, per Lord Westbury L.C. The principle is not mentioned in Blackstone's treatment of nuisance in W. Blackstone, Commentaries on the Laws of England, vol. III. The principle, or an early variant, is mentioned by Lord Kames in a comment appended to Kinloch v Robertson (1756) Mor. 13163: “The connection of close neighbourhood in a burgh introduces new duties among the inhabitants. Neighbours in town must submit to ordinary inconveniences from each other; but they must be protected against extraordinary disturbances, such as may render their property useless to them, or at least uncomfortable. Close neighbourhood introduces this temperament in equity, but not in such a manner as to deprive his neighbour of the use of his property.” The idea that a nuisance depends upon all the circumstances is already present in Walter v Selfe (1851) 4 De G. & S. 315. The case perhaps most often cited for the locality principle is however Sturges v Bridgman (1879) 11 Ch. D. 852.
9 Simpson, A.W.B., “Victorian Judges and the Problem of Social Cost: Tipping v St Helens’ Smelting Company (1865)” in Simpson, A.W.B. (ed.), Leading Cases in the Common Law (Oxford 1995), 183 Google Scholar.
10 Roughly £40,000 today.
11 St. Helens Smelting Company (1865) 11 E.R. 1483, 1486.
12 Ibid., at p. 1486.
13 See e.g. Nolan, D., “Nuisance” in Oliphant, K. (ed.), Butterworths Common Law Series: The Law of Tort (London 2015)Google Scholar, at [22.42].
14 See Lawrence [2014] UKSC 13, at [59], per Lord Neuberger P.: “any attempt to give general guidance on such issues risks being unhelpful or worse.”
15 The phrase “immediate locality” comes from Lord Westbury's judgment in St. Helens Smelting Company (1865) 11 E.R. 1483, 1486.
16 See Laws v Florinplace [1981] 1 All E.R. 659, where two or three streets of houses amounted to a “residential area” in Pimlico.
17 Adams v Ursell [1913] 1 Ch. D. 169.
18 Lawrence [2014] UKSC 13, at [59]–[60].
19 See Nolan, “Nuisance”, at [22.47]: “Usually, the courts applying the locality principle are concerned with the dominant land use: is the area primarily residential, commercial, industrial or agricultural?”
20 Murdoch v Glacier Metal Company Ltd. [1998] Env.L.R. 732, 733.
21 The courts have also sometimes drawn distinctions within residential areas based upon the “class” of the area.
22 For criticism of this, see below, at Section IV.A.
23 Lawrence [2014] UKSC 13, at [60]. See also Lord Carnwath in Lawrence, at [181]: “the character of any locality may not conform to a single homogeneous identity, but rather may consist of a varied pattern of uses all of which need to coexist in a modern society.” See also the more fine-grained description of the area as “light industrial” in Hirose Electrical UK Ltd. v Peak Ingredients Ltd. [2011] EWCA Civ 987, at [40].
24 Lawrence [2014] UKSC 13, at [185].
25 Ibid., at paras. [63]–[65].
26 Sturges (1879) 11 Ch. D. 852, 865.
27 On the potential worry of circularity here where the unlawfulness in question is alleged to be a private nuisance, see below, Section IV.A.
28 See further, below, Section IV.A.
29 Even if these do not amount together to a public nuisance, so as to come within the immediately preceding point. For evidence of a restriction of this kind, see Lawrence [2014] UKSC 13, at [76].
30 §906 II 1 BGB. This is perhaps the meaning of the idea that locality is just one factor in the overall “unreasonableness” question.
31 See e.g. Drysdale v Dugas (1896) 20 S.C.R. 20.
32 Ball v Ray (1873) 8 Ch. App. 467, 471, per Mellish L.J.: “[if] in a street like Green Street the ground floor of a neighbouring house is turned into a stable, we are not to consider the noise of horses from that stable like the noise of a pianoforte from a neighbour's house, or the noise of a neighbour's children in their nursery, which are noises we must reasonably expect, and must to a considerable extent put up with.”
33 “A nuisance may merely be a right thing in the wrong place, – like a pig in the parlor instead of the barnyard”: Euclid v Ambler Realty Co., 272 U.S. 365, 388, per Sutherland J.
34 Rushmer v Polsue & Alfieri Ltd. [1906] Ch. D. 234, 251, per Cozens-Hardy L.J.
35 Beever, The Law of Private Nuisance, pp. 31–33, though he does not put the matter in terms of “costs”. My account here simply develops his to explain how the lawful background activities of multiple people might affect the costs for defendants. It is important to note that this argument can be disaggregated from Beever's more controversial general theory of unreasonableness in private nuisance, which centres around the relative “fundamentality” of each party's use of their land.
36 It might be objected, in relation to the point about background lawful noise, that a number of lawful acts can jointly become unlawful. If so, the defendant cannot reasonably claim to be entitled to take advantage of this unlawful background state of affairs. We know that one person's conduct can become a nuisance as a result of another's independent action, even though each action alone would be insufficient to constitute a legal wrong: Lambton v Mellish [1894] 3 Ch. 163. This is true, but the argument still holds in so far as each individual contribution to the total state of noise is so minimal as to fall below de minimis. In these circumstances, it is unlikely that any individual could be justly held responsible for the total state of affairs, and so the total state of affairs can be considered as lawfully created. It can then legitimately act as a background against which the parties’ entitlements should be considered.
37 This is a version of Baron Bramwell's live-and-let-live argument in Bamford v Turnley (1860) 3 B. & S. 62. See also R. Epstein, “Nuisance Law: Corrective Justice and its Utilitarian Constraints” (1979) 8 J.L.S. 49, at 89; Mack, E., “Elbow Room for Rights” in Sobel, D., Vallentyne, P. and Wall, S. (eds.), Oxford Studies in Political Philosophy: Volume One (Oxford 2015)Google Scholar.
38 Southwark LBC v Tanner [2001] 1 A.C. 1.
39 See above, Section II.
40 Even if we can imagine such cases, the benefits of a clear general rule against infliction of property damage regardless of locality may outweigh the rare injustice this might cause. It may also simply be that being permitted to physically damage another's land is fundamentally at odds with the right to exclude which arguably forms the core of any conception of property right.
41 See above, Section II.
42 A version of this explanation seems to be endorsed by Lord Carnwath in Lawrence [2014] UKSC 13, at [183].
43 Lawrence [2014] UKSC 13 [77]–[99]. See also Penner, J.E., “Nuisance and the Character of the Neighbourhood” (1993) 5 Journal of Environmental Law 1 CrossRefGoogle Scholar, at 24, on why the fact that an activity has statutory authority should not itself support the conclusion that the activity has altered the character of the neighbourhood. See more generally on the locality principle and planning permission Lee, M., “Tort Law and Regulation: Planning and Nuisance” (2011) 8 Journal of Planning and Environmental Law 986 Google Scholar.
44 McBride, N.J. and Bagshaw, R., Tort Law, 5th edn (London, 2015), 442 Google Scholar.
45 See above, Section II.
46 E.g. Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 572, limited by Bolitho v City and Hackney Health Authority [1998] A.C. 232.
47 This autonomy-based rationale could be decoupled from the social rules account.
48 See further on the role of private nuisance in this regard, below, Section III.E.
49 Similarly, locating extra-sensitive activities together may minimise the overall constraints such activities impose upon others’ freedom while providing essential goods to certain individuals. If 10,000 people who suffer from extreme sensitivity to car-exhaust fumes, prolonged exposure to which causes them paralysis, buy a small deserted island on which to live, it does not seem unreasonable that the law might give them extra-protection from car fumes on their island, so that they can avoid these extreme harms. So far as I am aware, the locality principle has never been invoked to justify protection of extra-sensitive individuals.
50 The idea that the tort of private nuisance can function as a means of locating certain uses to particular areas – a “zoning”, or more generally, a planning function – is not new. See e.g. J.H. Beuscher and J.W. Morrison, “Judicial Zoning through Recent Nuisance Cases” (1955) Wisconsin Law Review 440, at 442; “Comment – Zoning and the Law of Nuisance” (1961) 29 Fordham Law Review 749 Google Scholar, at 750: “The basic philosophy behind both nuisance and zoning is the same.” For a different cost-minimisation view, which focuses more on minimisation of information costs in determining efficient standards of neighbourly conduct, see Ellickson, R.C., “Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls” (1973) 40 U.Chi.L.Rev. 681 CrossRefGoogle Scholar, at 728–33. His proposal is effectively criticised in Penner, “Nuisance and the Character of the Neighbourhood”, pp. 14–18.
51 The example is designed to rule out the normative force (if any) of A’s coming to the nuisance.
52 Lawrence [2014] UKSC 13, at [165].
53 I assume that harm minimisation comes within Lord Mance's concept of the “general public interest”. It is a general “public” interest in that no one individual has an entitlement against another to overall harm being minimised.
54 See also Lawrence [2014] UKSC 13, at [95], per Lord Neuberger and, more generally, Bishop, P. and Jenkins, V., “Planning and Nuisance: Revisiting the Balance of Public and Private Interests in Land-Use Development” (2011) 23 Journal of Environmental Law 285 CrossRefGoogle Scholar, at 298ff.
55 Lawrence [2014] UKSC 13, e.g. at [156], per Lord Sumption: “… the question whether a neighbouring landowner has a right of action in nuisance in respect of some use of land has to be decided by the courts regardless of any public interest engaged.”
56 See below, Section IV.B.
57 Keating, G., “Nuisance as a Strict Liability Wrong” (2012) 4 Journal of Tort Law 2 Google Scholar, at 26.
58 The classic authority is Robinson v Kilvert (1889) 41 Ch. D. 88.
59 Keating, “Nuisance as a Strict Liability Wrong”, p. 26.
60 For a (persuasive) argument that most property rights are justified, if at all, by collective interests, see Cruft, R., “Against Individualist Justifications of Property Rights” (2006) 18 Utilitas 154 CrossRefGoogle Scholar.
61 Compare Lord Westbury's assertion that the principle could entail that a person would have to tolerate “much discomfort”: St. Helens Smelting Company (1865) 11 E.R. 1483, 1486.
62 For a view of the locality principle that emphasises the contribution of collective considerations to its justification, see Lee, M., “Private Nuisance in the Supreme Court: Coventry v Lawrence” (2014) 7 Journal of Planning and Environmental Law 705 Google Scholar, at 711–12.
63 Ibid., at p. 712.
64 Ibid., at p. 712.
65 Wheeler v JJ Saunders Ltd. [1995] 2 All E.R. 697.
66 Lawrence [2014] UKSC 13, at [164] (emphasis added).
67 Spur v Del Webb Industries (1972) 108 Ariz. 178.
68 The interference would also have been a private nuisance vis-à-vis each resident, though an injunction may not have been granted: see ibid.
69 Lawrence [2014] UKSC 13, at [65].
70 Lord Neuberger does recognise the problem (at [71]), but considers that it can be avoided by taking an “iterative” approach, without explaining this in detail (see Lawrence [2014] UKSC 13, at [72]). Such an approach will have to determine the locality for the first “iteration”, however. If so, it seems to be subject to the same logical problem. See also Lee, “Private Nuisance”, p. 712, describing this part of Lord Neuberger's judgment as the “most difficult to explain to students, and to apply”.
71 Lawrence [2014] UKSC 13, at [55].
72 Ibid., at para. [55].
73 Ibid., at para. [63].
74 If the change of locality has been procured through conduct that is unlawful (for a reason other than that it constitutes a private nuisance) and seriously culpable, there may be a case for preventing the defendant from relying upon it.
75 In such cases, the area may still be appropriately described as predominantly residential, so the introduction of the defendant's use may not make of a difference here.
76 This could be done through the locality principle, but it is better achieved by a distinct principle for the reason given above, see earlier in Section IV.A.
77 Gillingham Borough Council v Medway Dock Co. Ltd. [1993] Q.B. 343, 361.
78 For a powerful critique of the Gillingham principle that reinforces the criticisms made by the majority in Lawrence itself, see Nolan, D., “Nuisance, Planning and Regulation: The Limits of Statutory Authority” in Dyson, A., Goudkamp, J. and Wilmot-Smith, F. (eds.), Defences in Tort (Oxford 2015)Google Scholar.
79 Lawrence [2014] UKSC 13, at [96]. Except to the extent that planning law controls what uses enter the vicinity law and these actual uses then together constitute the locality.
80 Lawrence [2014] UKSC 13, at [90].
81 Ibid., at para. [90].
82 Ibid., at para. [67].