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