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?
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.
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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
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?
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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