Dear All

 

I think Jason Neyer’s summary of the situation is a good one. For my part, however, I would not foreclose the debate whether such a right should exist today on the basis that Dixon J was a great judge (which he undoubtedly was). After all, the highest court in the UK has just ruled in a way that required a circle to be squared, and this seems to be one way (I think maybe the most parsiminous way) of squaring it.

 

On that, I think Donal might be right that the onus is on the other camp, as it were. After reading this very involved discussion (as a non-tort-lawyer) I am even more convinced than before that this is the best way to approach the problem, because it gets us down to actually talking about what we need to talk about. I am not sure I would follow Larissa’s language of “agenda” for our legally-circumscribed space, but I think that rather than the physics of photons, or indeed “gazeons”, talking about human use and enjoyment of space and the things built in space is the real conversation we need to have. We cannot and should not try to avoid that conversation on supposed conceptual bars, when conceptually the problem is (to my mind) pretty clear.

 

Once we establish that Right X exists, we can start to talk about its limits and the operation of principles like give and take, etc.

 

The gazeons quip, while very pithy, backfires (if I understood the intention/direction of the joke correctly—I may be great a boor who missed a layer of irony!). It’s not about the physics of the situation at all, it’s about very human uses of space that is scarce in a world where other humans are not so scarce. Casting it in terms of particles, waves, or both traversing space-time is to my mind just the wrong tree to bark up.

 

Anyway, I am probably just reiterating my original point, for the third time now, which threatens to make me a “nuisance lawyer” of the wrong kind. Thanks to all for such an enriching discussion!  

 

JGA  

 

I think the answer to Jason’s question about the no rights cases is long and involved. I also read the UKSC as denying the concept of ‘no rights’ in nuisance. Instead they seek to justify the limits in cases like Hunter by reference to a liberty to build on one’s own land. But they also acknowledge problems with that, and so then have to qualify it. Nor is it clear how they would explain Pickles without some kind of ‘no rights’ idea.

 

In any case, I don’t accept that the burden is on those defending Fearn. Why isn’t it on those who say that it is wrong (and not just wrong as in a mistake, but wrong as in conceptually confused), or in Jason’s case (implicitly) that it does not create a natural right consistent with other natural rights etc?

 

To reiterate I’m not defending Fearn as a decision. In fact I defended the CA’s ruling to the contrary in a case note. I just don’t see why it’s necessarily wrong.

 

All best

 

Donal

 

 

Dear Colleagues:

 

I’m interested in what cases Donal had in mind that disprove that general view that a nuisance has to be an emanation into the land or an interference with a natural (riparian, access or lateral support of land/not buildings) or acquired right which attaches to the land. (If it is only the pornography shop cases, then I agree with others that they are probably better understood as public nuisances or as a special instance of an emanation).

 

More importantly, I do not see any of these rights being affected in Fern.

 

One way to square the result (as I take Jason Allen to be suggesting) is to say that the court has just created a new natural right not to be overlooked which was the very right that the eminent Dixon J (the second best judge of the 20^th century behind Cardozo), and the others comprising the majority, held did not exist in Victoria Park Racing.  I agree with Neil and Jeannie that Dixon, in keeping with the style of the times, merely tells us that the claim in nuisance fails because the right does not exist in English law; so it looks like it is merely arbitrary line drawing, but I am confident that Dixon could have said more about this if pressed to create a new natural right.

 

The burden then for those supporting the Fern judgment, and for the judges themselves, is to explain how this new natural right forms a consistent set with both the natural rights that have heretofore been recognized (riparian, access or lateral support of land/not buildings) and the natural rights which have not been recognized (percolating water as in Bradford, or sunlight or air in other cases of high authority). The difficultly is that I have not yet seen such an argument—one based merely on the supposition that natural rights are created where the deprivation of the amenity interferes with use and enjoyment is clearly not up to the task since it cannot coherently explain the no rights cases. In a system of justice, like cases must be treated alike or as Lord Atkin eloquently phrased it, in “English law there must be, and is, some general conception of … which the particular cases found in books are but instances.”

 

I also find Rob’s point about subjective feelings quite pertinent and in line with the famous (at least to Canadian lawyers) case of Shuttleworth v Vancouver General Hospital, [1927] 2 DLR 573, where the court found that the plaintiffs upset, and feelings of sadness, engendered by looking at a children’s infectious diseases hospital could not constitute a nuisance.

 

Sincerely,

 

 

 

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