On Roderick’s first point I can see that there may be difficult cases on the borderline, but that seems pretty standard. The cases on GM farming and the like also raise issues on the boundary too. In itself the fact that there are difficult cases doesn’t bother me too much though.

 

On Roderick’s second point, the idea of abstract usability is simply intended to mark out the definitional boundaries of the tort. Clearly having done that we will need to qualify the interferences with abstract usability that are wrongful. One way of doing that is by a fact-sensitive test of reasonable user etc. Another is by carving out some no rights cases where you don’t get off first base (eg Pickles). My feeling is that visual intrusion should be one of these because if you open the door you’re going to struggle to set limits that work on a case-by-case basis. But I might be wrong about that, and I do recognise that the facts of Fearn are somewhat extreme.

 

Finally, I think usability has to be in there somewhere. Presumably, no-one is suggesting that any physical change to one’s property is unlawful. So it seems to me that either you need usability + physical change or usability on its own with maybe some (more?) carve outs. But it’s not as if you can do away with it altogether. After all it has to be substantial/unreasonable interference with something and if it’s not some notion of usability I can’t see what it is.

 

This is why I keep calling out the non-sequitur that ‘X affects usability too, but that isn’t a nuisance, so that can’t be the test’. I could just as easily say ‘Y is a physical change to the property, but that isn’t a nuisance, so that can’t be the test’.

 

All best

 

Donal

 

 

 

 

 

I post on behalf of Roderick Bagshaw:

 

“Confession: I quite liked the notion that private nuisance required either a physical invasion OR an interference with rights attached to the land (eg a right of way).

 

But – I think it’s fine to explore (as Donal suggests) whether the tort can instead be built around “interference with the abstract usability of the land”.

 

That said, I have two worries about “abstract usability”.

 

1.       Donal relies on a distinction between “interference(s) with the abstract usability of the land” and lots of other ways of preventing someone from using and enjoying their land (eg by imprisoning them somewhere else). My first worry is that – I don’t think this distinction is particularly clear. It seems as if an interference with “usability” has to be one that is localised in some way (ie it ‘gets’ people when they’re ‘using’ the premises) … but are there further conditions? For example, does an interference with “usability” have to be relatively “general” – i.e. would affect other people if they wanted to use the land in the same way. (Possibly an issue for some of the “offensive sign” examples – a sign specifically about the claimant might be different from a sign that would bother users generally. Further example of a possible extra condition, does the interference have to come from “outside” the claimant’s land. (As an example: if I manufacture a truly useless door lock, which ends up regularly jamming – and leaves the claimant regularly unable to get into her house – that appears to interfere with “usability”, but is it a private nuisance? Or, same, except it’s a lamp that repeatedly causes the claimant’s electrical circuits to ‘trip’. Perhaps these are now potential private nuisance cases – after all, Lord Leggatt says that: “Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance.”)

 

So – in summary – declaring that lack of a physical crossing is not a bar seems (to me) to fall short of supplying an answer to what can count as an ““interference(s) with the abstract usability of the land” amongst all the ways of preventing someone from using and enjoying their land.

 

2.       My second worry is that “interference with abstract usability” seems to be insufficient for liability: as Rob S (and no doubt others) have noted, blocking an unauthorised short cut across MY land is not a private nuisance to my neighbour even if it severely impedes the “usability”. And that is just one example amongst many “no rights” cases … Indeed, I suspect that the ‘price’ of using “interference with the abstract usability of the land” as the “essence of nuisance” is that – simultaneously – it becomes necessary to recognise broad “rights” for neighbours … e.g. to build structures (even if they ruin views …); to close short cuts (unless they’re easements) (even if they make access highly inconvenient); to extract percolating groundwater (even if this messes with my neighbour’s heat pump – Jason’s mentioned technology: call him for details!)

 

Stepping back, it seems to me that the existence of the uncertainty as to the conditions for finding that something is an “interference(s) with the abstract usability of the land” and the accompanying need for a -catalogue- of broad “rights” for neighbours rather undermines any claim that the “essence” of private nuisance has been successfully identified, and makes cases like Fearn “straightforward”.

 

Best wishes

Roderick”

 

 

 

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)