Private Nuisance

Abstract

The tort of nuisance is ‘primarily concerned with conflict over competing uses of land’ (Fleming, 1992, p. 409). It is remedied by the award of damages, or by the granting of an injunction, or both (see Chapter 23). That much is clear. The task of mapping out the contours of the tort, however, has caused excessive consternation in the legal mind since time immemorial. Even today, no consensus has emerged as to how the subject should be expounded and as to exactly what rules apply in different situations. The difficulty the subject presents stems largely from the fact that no coherent thread of argument can unite the disparate rules that the courts have applied under the general rubric of ‘nuisance’. This lack of principle means that there are no short cuts to understanding the tort of nuisance. The obscure nooks and crannies of the subject can only be illuminated by reference to a long and apparently arbitrary list of what one can and cannot do with one’s land. Looking at this list, we may learn that courts have said you will be liable to your neighbour for any damage caused by roots or branches of your tree which encroach on to her land (Davey v. Harrow Corporation [1958] 1 QB 60), but that you may with impunity dig a ditch on your land even if it means that your neighbour’s recently constructed house falls down (Dalton v. Angus (1881) 6 App Cas 740). Reading on, we may find out that you may inflict on your neighbour the noise of speedboats racing on your lake a few times a year, but woe betide you if you organise too many race meetings, for that would constitute an actionable nuisance (Kennaway v. Thompson [1981] QB 88). Any attempt to identify a single general principle from which these diverse rules can be deduced is doomed to failure.