Chris asks as to “the motivation for the insistence on the physicality of nuisance.”

 

Because that is the nature of the physical world in which we find ourselves in.

 

We can justify the law recognising and enforcing rights in relation to physical things external to ourselves. Such rights have as their subject matter those physical things. You may not enter my home without permission, or negligently smash up my bicycle.

 

I don’t know of any satisfactory account justifying rights to "abstract utility” or somesuch.

 

Oxford County Council, in its wisdom, removed all the parking spaces on the road on which I live (the street is one of Victorian terraces and so the properties come with no garages or land for cars). Without doubt that interfered with the "abstract usability" of the vehicles that now have to be parked much further away. [I don’t own a car.] But interfering with the “abstract usability” doesn’t impact the thing (the vehicles) which are the subject matter of the right.

 

As it is for cars, so it is for land. Having people stare at my land, or having my neighbour close off an access point, no doubt interferes with the “"abstract usability" of the land. But it can’t be an interference with the right to the land without more ado.

 

English law now finds itself in a daft position. Hunter v Canary Wharf requires the claimant to have a right to the land before they can sue. But Fearn v Tate doesn’t require any interference with any identifiable right to that land for the rightholder to be able to sue for their loss. We could (as some on here have suggested) just say we have a “new” specific right to land that others don’t look on it (unreasonably) but that isn’t how the court reason. Instead, they see any interference with "abstract usability" as actionable. That makes no sense as the entire law on rights of way is predicated on it not being true.

 

So, as Rod says, we now have to try and find a way of carving out exceptions to explain away the overly broad starting position.

 

Some physical changes may be practically significant, whether commercially or otherwise, because they lead to interference with my “abstract utility.” No doubt in Victoria Park Racing what motivated the plaintiff was money, and in Fearn their reason for suing was the misery caused (or perhaps more probably, the lowering of the value of the flats). But the reason we protect against noise, smells and vibrations is because of the right to the land, not because we protect abstract utility itself.

 

And *of course* the usability of the land in Victoria Park was interfered with. It may well be that they were quickly put out of business (I don’t know the subsequent story but it makes no difference to the analysis). Its utility as a usable commercial space was less, just as the utility of the residential space in Fearn was less. Not eliminated, but less.

 

Rod’s formulation was

 

“either a physical invasion OR an interference with rights attached to the land (eg a right of way).”

 

I’d change that slightly. We can postulate (rare) examples of interference with the land (the physical space, the thing) that don’t involve an “invasion” (removing support, sucking the air out of a building). When a right of way is interfered with, the subject matter of the claimant’s right isn’t the land to which they have title, but their neighbour’s land. And it is the (physical) space of their neighbour’s land that is interfered with or changed.

 

R