Dear Colleagues:

Having just read the decision, I can agree with Phillip that it is important but cannot agree with Richard that it is useful. I think that on almost every issue (except the issue of prescription) the court gets the law wrong in the sense that the answers given do not fit with the most coherent understanding of the law of nuisance to be gleaned from the cases.  For example, the court seems to treat the issue of the character of the area as some sort of trump card, ie if you prove it fits the character then there cannot be a nuisance whereas the better understandable is that the character of the area is merely the context in which one: (1) decides whether the interference was substantial and hence unreasonable; (2) does a analysis of necessary acts conveniently done/give and take between neighbors. Similarly, coming to the nuisance is now a defence if the claimant seeks to change the uses of their land  [ 56] which allows defendants to effectively expropriate others land uses without compensation and without having gained an prescriptive easement through 20 years use---this despite earlier claims that such a concept was a "old notion ... long since exploded". Moreover, this is seemingly done to give content/save from scourn a dissent of Denning! Finally, the court effectively overules Shelfer and states that public interest is a very important issue that is to be addressed by the judge in deciding to issue an injunction despite the fact that, as some of their Lordships point out, judges will not often have the available evidence and despite the fact that their is a defence of statutory authority which exists to protect the public interest (and a well understood doctrine of injurious affection to make compensation to the public following on from that).  Moreover, trial judges are given no metric as to how to balance interests and rights.  Are ten  peoples jobs worth one private right? Are football matches?  If this is the law, then defendants are better off not pleading statutory authority and better just pleading public interest in most cases.

As I jokingly mentioned to a colleague, I will enjoy heaping scorn on Lord Neuberger and his "have his cake and eat it too" judgment in Coventry where everything is relevant at at least some of the time on some point in the nuisance analysis.  Can anything not be relevant anymore?

Sincerely,

Jason Neyers
Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435 

On 28/02/2014 6:00 AM, Phillip Morgan wrote: