Well I completely accept that it’s not a strict dichotomy, which is why there are borderline cases. But I think the distinction holds, and that the courts have been right to make it (which they have).

 

On the factory example, surely you’re not saying that anything that affects the physical condition of my property is wrongful? You must at least build in some kind of substantial interference requirement, as Jason suggests.

 

All best

 

Donal

 

 

 

 

 

I’m not sure one can draw a strict dichotomy between “ability to do X” and “making X less profitable”. Surely in a world of limited resources and unlimited wants with a  need for resources allocation, profitability as a matter of fact can be central to the ability to do something.

 

If the owners of the track could not afford to run their business if the results were broadcast and hence fewer people bought tickets, then in a very real sense there is no ability to do X. Yes, they could have run races at a loss (forever?), or run amateur low budget races as a hobby. But I don’t see how one can ignore a practical reality when it comes to profit and rely upon it when it comes to wanting to be able to lounge around in one’s dressing gown.

 

The answer to the final point is surely that there would be no substantial claim because any consequential loss would not be caused by the actionable wrong (increasing the temperature of your house) – a very vague similarity to Spartan Steel in that sense.

 

 

 

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.

 

 

 

 

This e-mail originates from outside One Essex Court. Please exercise caution

 

Disclaimer

The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful.

This email has been scanned for viruses and malware, and may have been automatically archived by Mimecast, a leader in email security and cyber resilience. Mimecast integrates email defenses with brand protection, security awareness training, web security, compliance and other essential capabilities. Mimecast helps protect large and small organizations from malicious activity, human error and technology failure; and to lead the movement toward building a more resilient world. To find out more, visit our website.