From: Sandy Steel <sandy.steel@wadham.ox.ac.uk>

Sent: Tuesday 23 July 2024 12:02

To: Donal Nolan; LCF Admin; Robert Stevens

Cc: Matthew Hoyle; Jason W Neyers; obligations

Subject: Re: Nuisance as an interference with the abstract useability of land

 

There s a good discussion of the private right of access to a public highway in Fritz v Hobson (1880) 14 Ch D 542. The existence of such a right, of some scope at any rate, is well-entrenched in the C19 authorities. See also:

 

Attorney-General v. Conservators of the Thames 1 H. & M. 1 . (Lord Hatherley): I apprehend that the right of the owner of a private wharf, or of a roadside property, to have access thereto, is a totally different right from the public right of passing and repassing along the highway on the river. The existence of such a private right of access was recognised in Rose v. Groves . As I understand the judgment in that case, it went not upon the ground of public nuisance, accompanied by particular damage to the Plaintiff, but on the principle that a private right of the Plaintiff had been interfered with. Independently of the authorities, it appears to me quite clear that the right of a man to step from his own land on to a highway is something quite different from the public right of using the highway The public have no right to step on to the land of a private proprietor adjoining the road, and though it is easy to suggest metaphysical difficulties when an attempt is made to define the private as distinguished from the public right, or to explain how the one could be infringed without at the same time interfering with the other, this does not alter the character of the right.

 

The difficulty is in specifying the content of the right accurately (once we abandon, as we must, the view that there must be a physical invasion affecting the land itself). If A puts B in a police cell without justification, A deprives B of the ability to access B s land. I suppose everyone is agreed that this is not a private nuisance, no more than if A cuts off B s leg and B cannot leave hospital for a month, thereby being unable to use B s land for ordinary purposes. Probably the right is a right not to have access to one s land blocked from a public highway by an obstruction on the immediate boundary of one s land. So if A puts B in a cage at B s (only) front door, this is potentially both a false imprisonment and a private nuisance. I m sure such a case will soon hit the law reports.

 

Sandy

 

From: Donal Nolan <donal.nolan@law.ox.ac.uk>
Date: Tuesday, 23 July 2024 at 11:32
To: LCF Admin <info@lcf-academic.org>, Robert Stevens <robert.stevens@law.ox.ac.uk>
Cc: Matthew Hoyle <MHoyle@oeclaw.co.uk>, Jason W Neyers <jneyers@uwo.ca>, obligations <obligations@uwo.ca>
Subject: RE: Nuisance as an interference with the abstract useability of land

My understanding is that there s a right of access to and from the highway. There are picketing cases from the 1970s and 1980s that illustrate this.

 

all best

 

Donal

 

From: LCF Admin <info@lcf-academic.org>
Sent: 23 July 2024 11:25
To: Robert Stevens <robert.stevens@law.ox.ac.uk>
Cc: Matthew Hoyle <MHoyle@oeclaw.co.uk>; Donal Nolan <donal.nolan@law.ox.ac.uk>; Jason W Neyers <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: Re: Nuisance as an interference with the abstract useability of land

 

Is it still the accepted position in England that a land owner have a right to leave the land but not to access? So, you can block them out but not in?

 

 

With kind regards,

 

Dr. Maren Heidemann, Ass. iur., LLM

Academic Convenor and Director
The London Centre for Commercial and Financial Law

 

On 23 Jul 2024, at 11:01, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:

 

I think Donal s point goes beyond that though. I think there must be a (natural) right of way to move from your land to the highway. Think of the Coronation Street terraces where you (and me) grew up, where the door opens straight on to the street.

 

I don t think that makes good Donal s general view though, as Crabb v Arun shows.

R

 

From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: Tuesday, July 23, 2024 10:58 AM
To: Donal Nolan <donal.nolan@law.ox.ac.uk>; Robert Stevens <robert.stevens@law.ox.ac.uk>; 'Jason W Neyers' <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: Re: Nuisance as an interference with the abstract useability of land

 

As I said, if there is obstruction of any private right of way, then there is nuisance. The Canadian case however seems to be predicated on the assumption there wasn t such (at least as I d understood Jason s email).  

 

If there is unlawful interference with a public amenity like the highway, that specially affects the landowner, public nuisance. If the authority fences in my land in deliberate breach of its powers, misfeasance in public office. Absent that, you re in Club Cruise territory, and your remedy is JR. 

 

Matthew Hoyle

Barrister

One Essex Court 

 

This message is confidential and may be privileged. If you believe you have received it in error please delete this email and immediately inform the sender.

 

Regulated by the Bar Standards Board.

From: Donal Nolan <donal.nolan@law.ox.ac.uk>
Sent: Tuesday, July 23, 2024 10:28:01 AM
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Matthew Hoyle <MHoyle@oeclaw.co.uk>; 'Jason W Neyers' <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance as an interference with the abstract useability of land

 

Well in that case we agree. But Jason and Matthew seemed to think otherwise, judging by their reactions to the Canadian case. If you want to call it a natural right that s fine. But in effect the law is protecting the usability of the land, and rightly so.

 

D

 

From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: 23 July 2024 10:26
To: Donal Nolan <donal.nolan@law.ox.ac.uk>; Matthew Hoyle <MHoyle@oeclaw.co.uk>; 'Jason W Neyers' <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance as an interference with the abstract useability of land

 

That should be tortious. I think there must be a (general, natural) right of way where your land abuts the highway. So, it is like cutting off water that flows on to your land. If my front door opens on to the highway, and someone parks outside it so I can t get out of my house, I think that must be a private nuisance.

 

But if they do it on their own land, destroying the utility of your land, unless you have a right of way, no claim: Crabb v Arun.

 

Unless we believe the theory that we no longer need to identify any interference with a (natural) right of land, and that interfering with abstract utility suffices.

 

From: Donal Nolan <donal.nolan@law.ox.ac.uk>
Sent: Tuesday, July 23, 2024 10:21 AM
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Matthew Hoyle <MHoyle@oeclaw.co.uk>; 'Jason W Neyers' <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance as an interference with the abstract useability of land

 

On the highway. *Just* outside your land but flush with the boundary so there is neither a trespass to your land nor any significant interference with passage along the highway, and so no public nuisance either. Your view is that that is not tortious? 

 

D

 

From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: 23 July 2024 10:14
To: Donal Nolan <donal.nolan@law.ox.ac.uk>; Matthew Hoyle <MHoyle@oeclaw.co.uk>; 'Jason W Neyers' <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance as an interference with the abstract useability of land

 

Where is this fence?

 

On your land? A clear tort.

 

On the highway? A clear tort: public nuisance? I don t think landowners without more ado acquire their own special rights of way over the highway, or over any other area of land.

 

On their land, which is between your land and the highway, ending all access for you to your land? Unless you have a right of way, they can do that: Crabb v Arun (before Fearn v Tate).

 

From: Donal Nolan <donal.nolan@law.ox.ac.uk>
Sent: Tuesday, July 23, 2024 10:09 AM
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Matthew Hoyle <MHoyle@oeclaw.co.uk>; 'Jason W Neyers' <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance as an interference with the abstract useability of land

 

I mean by direct access access from the highway that is not dependent on a private right of way. You just walk/drive from the highway onto your land. Pretty standard stuff! And the scenario is that the authority erects a fence that blocks that access (but not the highway, and so not a public nuisance). A tort or not? 

 

D

 

From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: 23 July 2024 10:01
To: Donal Nolan <donal.nolan@law.ox.ac.uk>; Matthew Hoyle <MHoyle@oeclaw.co.uk>; 'Jason W Neyers' <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance as an interference with the abstract useability of land

 

And, I had thought that in Crabb v Arun what was blocked was direct access from the highway?

R

 

From: Robert Stevens
Sent: Tuesday, July 23, 2024 9:57 AM
To: Donal Nolan <donal.nolan@law.ox.ac.uk>; Matthew Hoyle <MHoyle@oeclaw.co.uk>; 'Jason W Neyers' <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance as an interference with the abstract useability of land

 

Absent a right of way, why does that make a difference to private nuisance? Are you suggesting that if I own land that gives me a (special) right of way over the highway that non-landowners don t have?

 

Blocking the highway might be a public nuisance, but unless you have a right of way, I don t think people blocking your access to anywhere can be a private nuisance (or, at least, it couldn t be until Fearn v Tate detached private nuisance from rights in relation to land).

 

From: Donal Nolan <donal.nolan@law.ox.ac.uk>
Sent: Tuesday, July 23, 2024 9:52 AM
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Matthew Hoyle <MHoyle@oeclaw.co.uk>; 'Jason W Neyers' <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance as an interference with the abstract useability of land

 

I had in mind the blocking of direct access from the highway.

 

D

 

From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: 23 July 2024 08:56
To: Donal Nolan <donal.nolan@law.ox.ac.uk>; Matthew Hoyle <MHoyle@oeclaw.co.uk>; 'Jason W Neyers' <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: Re: Nuisance as an interference with the abstract useability of land

 

If they don't have a right of way? Of course.

 

What else was Crabb v Arun about?

R

 

From: Donal Nolan <donal.nolan@law.ox.ac.uk>
Sent: Tuesday, July 23, 2024 7:41:15 AM
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>; 'Jason W Neyers' <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance as an interference with the abstract useability of land

 

Not sure the case tells us much as the defendant didn t build the fence itself, so they were (at most) an accessory.

 

Do Jason and Matthew think that a public body that goes round building fences which block access to people s properties without lawful authority, thereby preventing use of the land for a period, shouldn t be liable to the owners? 

 

All best

 

Donal

 

From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: 22 July 2024 15:43
To: 'Jason W Neyers' <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: Nuisance as an interference with the abstract useability of land

 

Thanks Jason,

 

Certainly, your sign example appears right to me. Compare the judgment of Flaux J (as he was) in Club Cruise[2008] EWHC 2794 (Comm)  (albeit a claim in conversion, not nuisance). The claimant s right to exclusive possession of the ship was not affected by the invalid orders given by the authorities, even if they had in fact deprived the claimant of their freedom to use their ship. 

 

Similarly, in your sign example, the fact that a sign has effectively precluded use of the land should not amount to a private wrong. Nothing has been done to the land. If I install a sign outside your theme park which says danger, land irradiated , I can see that might amount to defamation or malicious falsehood, but is not an interference with your right to the land.

 

I also agree here that, absent a right of way over neighbouring land which is obstructed by the fence, this result looks right. Indeed, if the land had been in commercial use by the claimant, I don t think that ought to make a difference (like in Club Cruise). 

 

On English law s new understanding of nuisance following Tate however, both the sign and the fence ought to attract liability. Use and enjoyment of the land has been impaired.

 

Matthew Hoyle

Barrister

One Essex Court 

 

This message is confidential and may be privileged. If you believe you have received it in error please delete it immediately and inform the sender immediately.

 

Regulated by the Bar Standards Board.

 

From: Jason W Neyers <jneyers@uwo.ca>
Sent: Monday, July 22, 2024 3:12 PM
To: obligations <obligations@uwo.ca>
Subject: ODG: Nuisance as an interference with the abstract useability of land

 

Dear Colleagues:

 

Those of you interested in nuisance will be interested in the BCCA s decision in British Columbia (Minister of Public Safety) v Latham, 2023 BCCA 104. In that case the Province, in response to the appearance of sinkholes in a subdivision, extended a state of emergency ( the SOLE ) without statutory authority under the relevant act (the EPA ) and provided funding to the District for the construction of a fence that prevented the plaintiff s from accessing their property in that subdivision. The plaintiffs sued, on the authority of Antrim, claiming that the Province had committed a nuisance. The court denied the claim as follows:

 

91   it would logically flow from the respondents' theory, which is implicitly accepted by the trial judge, that every order issued under the EPA that substantially and unreasonably interferes with the use of private property would be prima facie actionable in nuisance, subject to the defence of statutory authority. In fact, they concede as such: at para. 62 above. In other words, liability in nuisance would arise automatically from a finding that the exercise of such powers was unlawful in an administrative law sense. Furthermore, the scope of this new form of tort liability would not be restricted to powers under the EPA. Liability in nuisance could arise from orders, policies, authorizations, and other decisions made pursuant to any legislation that authorizes a substantial interference with the use of private property regardless of whether the government entity in question has made any use of land. All that would be required to establish liability in nuisance is a successful application for judicial review. In my view, this unbridled expansion of the tort to include "regulatory nuisance" is unprincipled and contrary to the existing jurisprudence.


94  In light of the authorities discussed above, I would conclude that a defendant government entity must, at a minimum, be engaged in a use of land in order to attract liability in nuisance. It is not sufficient for competing uses of land to be involved in a general sense. I would also conclude that the tort of nuisance does not extend to regulatory action by a public body that directly interferes with a claimant's use of land, even where those decisions are subsequently found to be unlawful in an administrative law sense. In my view, it makes no difference to the analysis whether one focusses on the Minister's extensions of the SOLE or on the Province's contribution to the funding of a fence.

 

95  Here, there is no suggestion that the Province owned, occupied, or made use of land from which a nuisance emanated. The source of the alleged nuisance -- the Province's interconnected extensions of the SOLE and funding of the fence - - involved an exercise of its statutory powers, a regulatory response under the EPA to the geotechnical instabilities in Seawatch. Whether or not a portion of the fence may have been constructed on adjacent land, the purpose of the fence was to directly impede the respondents' access to property as a means of enforcing the evacuation order. Furthermore, it was the District, not the Province, that arranged for its construction: Reasons at para. 7. I do not consider purely regulatory activity impacting land, without more, to be a "use" of that land that could attract liability in nuisance.

 

96  To state my conclusions in a somewhat different way: this case does not concern competing uses of land, but rather a government body's exercise of emergency powers to directly regulate the respondents' properties. Respectfully, the judge therefore erred in law in concluding that the Province could be liable in nuisance for its regulatory actions in these circumstances.

 

The result seems totally inconsistent with theories that view nuisance solely as protecting interferences with the abstract useability of land, but seems intuitively correct to me (especially if we ignore the fence and just assume a sign was used rather than a physical barrier). I would explain that result by saying that (without the fence) their would be no physical interference with any of the plaintiff s rights to land (their column, their natural rights or acquired rights) rather than relying on no land use (as does the court) but the result would be the same as that gotten by the court. Could abstract useability theories explain the result?

 

Sincerely, 

 

 

<image001.jpg>

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

 

 

 

 

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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.