Can the law of nuisance, with all its apparent vagueness and inconsistency, be rendered coherent? In this stimulating and forcefully argued book, Allan Beever argues that most of the decisions, but emphatically not the reasoning, of this “under-theorised” (p. 1) tort can be explained in terms of a hierarchy of competing rights.
The author makes his methodology clear at the outset, although it will already be familiar to readers of his earlier book on Rediscovering the Law of Negligence (2009). The law of tort is exclusively a matter of securing corrective justice between the parties. There is no place for the pursuit of wider social purposes such as, in the nuisance context, environmental concerns. Rationalisation is all. Apparent anomalies inherited from former times must be ruthlessly expunged, even if they might afford a useful degree of pragmatic room to manoeuvre in a marginal case.
According to Beever the purpose of the law of nuisance is to resolve disputes by reference to the parties “rights” and their respective “uses” of land. “General” uses trump “particular” ones and “more fundamental” rights take priority over “less fundamental” ones. Thus interpreted, familiar concepts disappear. The notion that “reasonableness” is a criterion which may be deployed to balance the competing interests of the parties is dismissed as vague and, in effect, question-begging. Moreover the intentions and motives of the parties are irrelevant, along with any consideration of possible “fault” on their part.
The conventional idea that location is relevant to determining whether a nuisance existed is the first notion to be subjected to Beever's analysis. He is on safe ground in approaching it with scepticism. One does not have to be a Marxist to feel uneasy at the prospect of one law for Belgravia and another for Bermondsey (as per Thesiger LJ in Sturges v Bridgman (1879)11 ChD 852 at 865). This reviewer has argued elsewhere that the so-called “locality” principle is little more than a tactic, honoured more in the breach than the observance, to prevent the principle that it is no defence that the claimant “came to the nuisance” from being exploited by newcomers to put the industrial revolution into reverse. Beever, however, analyses the concept in terms of fairness between the parties. Since walls are likely to be thinner in Bermondsey residents may “have to put up with more noise from their neighbours than those in Belgrave Square” (p. 31). A similar approach is adopted towards the notion that the claimant's sensitivity, and the duration of the defendant's activity, are special factors to be set in the balance when assessing “reasonableness”. On the contrary, rather than being exceptions to some general rule, it is simply that “fairness between the parties would normally require taking [those considerations] into account” (p. 36).
According to Beever the relevance of “malice” in the law of nuisance has been misunderstood. The familiar duo of Christie v Davey [1893] 1 Ch 316 and Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468 were rightly decided but for the wrong reasons. Instead of there being any “special doctrine related to malice” it is simply a factor “that contributes to determining the nature of the defendant's activity” (p. 56). Making noises or shooting guns to annoy one's neighbour are different kinds of activity from making music or shooting rabbits: and are entitled to lower priority when the activities of the neighbours are being evaluated. One may perhaps be forgiven for doubting whether this approach is significantly more straightforward, or would prove easier to apply in practise, than the propositions that motive is relevant to reasonableness and reasonableness is relevant to neighbourliness.
Beever's proposition that only “use” can form the basis of liability leads him to turn on its head the modern orthodoxy on liability for nuisances emanating from the defendant's land but not caused by him. It turns out the old doctrine of immunity from liability for natural occurrences was right after all. But where “use” is established, liability for nuisances that were natural in origin, or caused by third parties, will be strict: the emphasis on fault in cases such as Sedleigh-Denfield v O'Callaghan [1940] AC 880 and Leakey v Natural Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 turns out to be misconceived. On this approach much depends on how “use” is defined. In a word: widely. It turns out that both Leakey and Sedleigh-Denfield were correctly decided, albeit largely for the wrong reasons. And the old case of Giles v Walker (1890) 24 QBD 656, which purported to apply the “natural” immunity was, consistently with the modern orthodoxy, wrongly decided: the thistles that grew and spread in that case did so because the land had been cultivated, and hence “used” by the defendant.
It is not surprising, in view of his insistence that nuisance is about “prioritising property rights” (p. 120), that Beever is a supporter of the principle underlying the decision of the House of Lords in Hunter v Canary Wharf [1997] AC 655: a case for doctrinal purists if ever there was one. Only those with a “right” to the land can sue but, according to Beever, “right” should be given a broader interpretation than that favoured by the majority in the House of Lords itself, even including adult children living with their parents: so it turns out that the actual result in the ill-fated decision of the Court of Appeal in Khorasandjian v Bush [1993] QB 727 was right after all (see p. 124).
It is perhaps on the controversial question whether someone who neither occupies, nor has any interest in, the land from which the nuisance emanates, can be liable in private nuisance that fitting the law to his theory leads Beever to one of his least persuasive conclusions. For him there can be no question of liability in such circumstances because the defendant has no property rights which can be compared with those of the claimant. So what of victims of harassment or other forms of interference from the highway? These cannot claim in public nuisance because too few claimants are affected. And according to Beever they can have no action at common law for private nuisance: instead, in the absence of legislation such as the Protection from Harassment Act 1997, such victims should sue the highway authority for allowing the defendant's activity to take place. Such a formalistic approach to the granting of relief is reminiscent of the rigidity of a bygone age; it is unlikely to commend itself to a modern court imbued with the notion that where there is a right there should be a (realistic) remedy.
In a chapter dealing with “Fault and Foreseeability”, and a subsequent one dealing with the “The Rule in Rylands v Fletcher” Beever highlights the incoherence of much judicial reasoning, both recent and not so recent. The contradiction inherent in permitting defences based essentially on the absence of fault to the “strict” liability of Rylands v Fletcher has, of course, often been emphasised, (judicially most recently by Lord Hoffman in Transco v Stockport Metropolitan Borough Council [2004] 2 AC 1 at [32]). But Beever also contends that a similar incoherence underlies the reasoning in Cambridge Water v Eastern Counties Leather [1994] 2 AC 264. Why insist that damage must be foreseeable if “fault” is not a pre-requisite of the initial imposition of liability? Recent developments favouring the importation of foreseeability into nuisance have “been an error” (p. 106). Beever points out, as have others, that many of the relevant cases on this topic (such as The Wagon Mound No.2 [1967] 1 AC 617) in fact involved public nuisance, where the relationship with negligence is much closer than it is in private nuisance.
In his final chapter, dealing with remedies, Beever's hostility to anything that smacks of pragmatism comes well to the fore. It is significant that he describes at the outset as “unfortunate” the “customary” description of the injunction as a “discretionary remedy”. He goes on predictably to deplore the judicial reluctance to deprive a village of its cricket field in Miller v Jackson [1977] QB 966 or the RAF of its airfield in Dennis v Ministry of Defence [2003] EWHC 793. The law of nuisance should confine itself exclusively to “rights”. Too bad for defendants whose activities have a significance for the wider community which is not captured by this analysis: they should seek legislative protection.
So what is one to make of Beever's theorising? There is no doubt that the common law, with its inherent tendency to chaos, needs to be kept under constant review by those with a keen eye for clarity and principle. Indeed this is one of the most important functions of the academic legal profession. And Professor Beever is extremely good at it. But one of the strengths of the common law is its ability to maintain a healthy balance between principle and pragmatism. It frequently confronts those who would codify it with the need either to stretch their terminology (eg “rights” and “uses”) to fit the law as it is, or to go back to the beginning and refine their structures. Just when it all seems sewn up a case may come along in which an intuitively attractive result can threaten to destabilise the entire edifice. This is an important book; albeit one unlikely to appeal to pragmatists, environmentalists, or those interested in the contribution of legal history to the law of nuisance. But most other readers will enjoy it.
