Unsurprisingly I don’t agree with Rob. As was pointed out earlier, the ability of the racecourse owners in Victoria Park Racing to use the track for horse races wasn’t compromised by the conduct. It was just made less profitable. And nuisance doesn’t protect the profit making potential of land absent an interference with its practical utility, which is to say stopping you from doing things there. In Fearn the flatowners were (in practical terms) prevented from doing things, like lounging around in their dressing gowns watching TV for fear of some idiot posting the pictures on Facebook. And note (just to pre-empt the non-sequiturs) that I’m not claiming that everything that in practical terms interferes with your ability to do things on your land is a nuisance. It’s just a pre-condition of liability in this tort.

 

In any case, I assume that Rob agrees with Jason that the question here is whether we need a requirement of physical interference and substantial interference with use and enjoyment? In which case you’ve got to address usability (or some closely related concept) at some point anyway. Every single definition of private nuisance I’ve ever seen refers to the ‘use and enjoyment’ of the land or some such. So it’s not that radical an idea to suggest that maybe the tort has something to do with use of land!

 

Linking the two points, suppose a factory opens next to my house which for some reason affects the profitability of a business that I run from the house. Is Rob’s view that this is not a potential nuisance if the factory’s operations have no physical effect on my land at all, but it is if the factory’s operations bring about some trivial change in the physical condition of my house (a tiny increase in temperature, say) which is completely unconnected to the loss of business? As that seems rather implausible, I’ll assume not. But in that case, why not? I take it the answer can’t be that the factory does not affect the usability of my house. So what is it then?

 

Best

 

Donal

 

 

Donal writes:

“There was no interference with the usability of the land in Victoria Park Racing. They just made a business being carried out there less profitable. I can do the same by opening up a supermarket next to your convenience store. Not a nuisance.”

 

I don’t agree.

 

The  “abstract usability” of the land (by looking down on it and broadcasting what was happening) did reduce the “abstract usability” of the land. It reduced its commercial value as a space.

 

You might say that in Fearn it was the staring alone that reduced the usability. But it wasn’t, it was the staring plus the fact that it would upset residents. Staring at land doesn’t do anything to land.

 

If someone sets up a supermarket next to your convenience store, that is almost certainly not actionable (today, in England) because it is reasonable. But it isn’t not actionable because it doesn’t interfere with the “abstract utility” of the neighbouring land. It does. It makes it less useful.

 

However, the reason it shouldn’t be actionable (and isn’t elsewhere) is that despite the reduction in the utility of the land on which the convenience store sits, it doesn’t interfere with any right to that land.