Introduction
This paper critically examines the consensus among tort scholars that an injured view is not in any circumstances actionable under English nuisance law or, as Richard Buckley puts it, that ‘it has long been clear that the law of nuisance does not confer protection upon enjoyment by an occupier of an attractive view or prospect’.Footnote 1 The ‘authority’ on which the consensus rests is Bland v Moseley,Footnote 2 an unreported Tudor case in which Sir Christopher Wray CJ stated that no action in nuisance lies for ‘stopping’ a ‘pleasing prospect’. There are, I argue, reasons to doubt that this case strongly supports the consensus. One is that the claim centred on loss of light, thus Wray's categorical denial of liability in nuisance for causing injury to a neighbour's view is obiter. Another is that Wray's approach does not appear to have withstood nineteenth century modernisation in the law. In particular, it is difficult to reconcile with Lord Westbury's opinion in Tipping v St Helen's Smelting Footnote 3 that nuisance remedies ‘sensible personal discomfort’, covering anything that ‘injuriously affects the senses or the nerves’.
The idea under consideration of a mismatch between formal law and academic exposition opens onto well-charted territory. David Sugarman made an important contribution to this with his critique of the ‘English textbook tradition’.Footnote 4 Sugarman's thesis is that Victorian and Edwardian-era legal scholars, exemplified by Professor Frederick Pollock, wrote textbooks that emphasised the permanence of common law principles, downplaying their changeability. They did so in order to counter a negative impression of the common law as chaotic and unpredictable, and thereby unworthy of a university education. The crucial part of Sugarman's analysis for present purposes is that textbook understandings of the common law are ‘not reducible’ to the law itself.Footnote 5 Against this, William Twining has suggested that formative legal scholars were attuned to the common law's spontaneity, and that Pollock was in fact in the vanguard of a proto-realist understanding of ‘living law’.Footnote 6 In defence of Sugarman, I argue that Pollock and other scholars writing about nuisance overlooked the modernity of contemporary case law. The problematic consensus regarding Bland is an important legacy of this.
The analysis begins with close attention to the decision in Bland, in its social and economic context (Section 1). Beyond the relatively minor difficulty arising from the absence of an official report of this case,Footnote 7 lie more substantial difficulties centring on the content of Wray's judgment. The ratio of the case is that an interference with a neighbour's light, such as to cause ‘terrible darkness’, is actionable, because it renders land uninhabitable. In medieval and early modern times, the words ‘view’, ‘prospect’ and ‘light’ were used interchangeably, and it is against this backdrop that Wray sought to introduce doctrinal precision, by distinguishing between injury to light (as something which is actionable because it is essential to the enjoyment of all land), and injury to a view of pleasing scenery (as something which is not). The dichotomy between light and view fitted broadly adequately with contemporary modes of enjoying property, for whilst possession of a pleasing view was ‘necessary’ to the landed elite – which invested heavily in beautiful property both for its intrinsic aesthetic value and as a symbol of grandeur – this investment was protected by the law of waste.
Attention is then given to modernisation in the definition of actionable injury in the nineteenth century, through the reception into law of Lord Westbury's opinion in Tipping (Section 2). Lord Westbury reasoned that things which are pleasing to some properties but not others do sound in nuisance, albeit on a locality-specific basis that differs from the universal actionability of physical injury. The remarks in Tipping about actionable injury are situated alongside a line of cases of the 1850s, concerning unpleasant odours from brickworks (Walter v Selfe, Footnote 8 Hole v Barlow Footnote 9 and Bamford v Turnley Footnote 10). They highlight significant differences of judicial opinion as to whether nuisance law protected against injured sensibility in the absence of ‘physicality’. Lord Westbury's speech in Tipping provided resolution. In some of the literature, this aspect of Tipping is interpreted as a response to industrial pollution, and the perceived need to differentiate between the interests of proprietors in town and country.Footnote 11 By contrast, I argue that Lord Westbury was principally responding to the emergence of suburbia, whose bourgeois residents invested heavily in the look (and smell etc) of land, without the security of the elite-oriented law of waste. That created a vacuum filled by nuisance law.
Section 3 addresses doctrinal reasons that sometimes are advanced in support of the permanence of the ‘rule in Bland’. Consideration is given to six reasons in particular, viz: (i) ‘sensible personal discomfort’ does not engage the sense of sight; (ii) ‘discomfort’ is not an aesthetic criterion; (iii) an injured view is not an ‘emanation’ from land; (iv) a neighbour wishing to protect a pleasing view can adequately do so through agreeing a restrictive covenant; (v) the management of pleasing views is the province of planning regulation; and (vi) excluding this injury is necessary to control the floodgates of nuisance litigation. This reasoning is untested judicially, for in no English common law nuisance case is the actionability of injury to a pleasing view part of the ratio.Footnote 12 Elsewhere in the common law world, interferences with pleasing views have occasionally found protection in the case law, broadly within the parameters of Tipping. The clearest example is the South African case of Waterhouse Properties v Hyperception Properties,Footnote 13 in which obstruction of a ‘beautiful’ view was held actionable in nuisance by virtue of a property and locality that was ‘pretty’ and ‘exclusive’.
It is concluded that whilst the topic of injury to a view is easily dismissed as rather niche, and indeed of modest practical importance – ‘a broken window is more important than a broken view’Footnote 14 – in reality, injury of this kind can be a very serious matter, not only in private law but also in public law terms.Footnote 15 Sugarman's critique of the textbook tradition in relation to the topic at hand is best understood not as an outright rejection of doctrinal scholarship (in favour of, say, a more theoretical or empirical ‘alternative’),Footnote 16 as much as a call for greater emphasis on the inherent corrigibility of doctrinal exposition, mirroring case law itself. Whether a claim in nuisance lies for an injured view is ultimately a matter for the courts, but it is hoped that the material explored below will be useful when the time comes for the courts to rule on the matter.
1. The rule in Bland v Moseley
This section addresses medieval and early modern nuisance law relating to injured views. In its very earliest iteration, eight or more centuries ago, nuisance law principally remedied interferences with agrarian usages of land (eg raising or lowering of hedges, dykes, millponds, or obstruction of roads).Footnote 17 Complaints about what can be loosely called ‘residential amenity’ are not discernible until the 1300s, in connection with the assize of nuisance.Footnote 18 Intriguingly, a substantial number of complaints in this setting centred on loss of view. For example, in a case of 1329, John and Isabel de Castleacre successfully protected from obstruction a view of an adjoining courtyard.Footnote 19 Two years later, Isabel Goldchep obtained a remedy against John Ruddok, who ‘piled up his firewood against her window so high above the upper stone frame that it is completely obscured, and the light, view, air and clarity (claritatem) impeded’.Footnote 20 Complaints about loss of view are as common as those directed at loss of light and polluted air, and far outnumbered complaints about noise.
Yet it is unclear that parties in these cases were using the term ‘view’ in a recognisably modern sense, of aesthetically pleasing scenery.Footnote 21 Janet Loengard suggests that injury to view (visum) and light (lumen) typically were pleaded interchangeably in this setting.Footnote 22 That is crucial to bear in mind in interpreting Bland, on which today's consensus regarding the exclusion of loss of view from the protection of the enjoyment of land offered by nuisance largely rests. The crux of the complaint in Bland was that the defendant's newly-built dwelling plunged the claimant's into ‘terrible darkness’; the house became like a ‘dungeon’.Footnote 23 Though loss of view is alluded to in Wray's speech, there no mention of the character of the view that the defendant's property obscured, including whether it was pleasing and, if so, how. The ‘how?’ question is particularly pertinent, because it directs attention to the limited accessibility of scenery from Tudor dwellings, owing to window glazing being too opaque to reveal pleasing scenery; glazed windows let in light but did not afford a clear view of the world outside.Footnote 24
It is therefore extremely doubtful that the exclusion from nuisance law of liability for an injured view has anything to do with ratio of Bland. Even so, it seems inescapable that the notion of injury to light and to prospect having profoundly different legal significance accorded well with judicial opinion at the time. The prevailing opinion was that nuisance law protected only those aspects of property that are essential to enjoyment in all cases, such as some light. In contrast:
for prospect, which is a matter only of delight, and not of necessity, no action lies for stopping thereof, and yet it is a great commendation of a house if it has a long and large prospect.Footnote 25
Coke cited this approvingly in Aldred's Case.Footnote 26 Likewise, William Blackstone wrote of a ‘fine prospect’ being a ‘mere pleasure’ as opposed to ‘an indispensable requisite to every dwelling’.Footnote 27
Wray and Coke were operating within a philosophical-legal milieu dominated by natural law theory, which was at the height of its influence in Tudor/Stuart times, but on the wane when Blackstone was writing.Footnote 28 Natural law in this setting framed the question of the scope of actionable injury in terms of rational deduction from a fixed premise in the judicially-defined ‘natural necessities’ of land. As stated by Coke, these are wholesome air (salubritas aeris), minimum light (neccesitas luminis), and a catch-all sense of basic habitability (habitato hominis). A pleasing view is axiomatically not essential to land's habitability, being a matter of delight (delectatio inhabitantis). Looking briefly ahead to later in the analysis, this approach came under strain in an increasingly bourgeois society, whose individualism found expression in suburbs built upon the pillars of delight and respectability.
Remaining with the early modern period, and sticking with the necessity/delight dichotomy, a conundrum thrown up by Bland concerns the premium placed on pleasing views by the contemporary landed establishment.Footnote 29 Royalty and aristocracy invested substantially in properties having spectacular outlooks over delightful surroundings. Writing today, the architectural historian Oliver Creighton gives a number of examples.Footnote 30 One is Kenilworth Castle, whose occupants enjoyed ‘sitting windows’ designed to look onto thoughtfully landscaped grounds (notably a large ornamental mere).Footnote 31 The royal palace at Clarendon had female bedchambers, each with a window that opened onto an intimate view of an attractive private garden.Footnote 32 Windsor Castle contained numerous rooms with expansive views over, variously, pleasure gardens, the deer park, hamlets and villages.Footnote 33 Pleasing views in these settings served an important dual function. As well as being delightful to the eye, and thus of intrinsic aesthetic value, a room with a view positioned the proprietor at the apex of society.Footnote 34
In practice, however, the elite was not prejudiced by Wray's obiter dictum. Elite estates were of such extensive territorial reach that proprietors had almost complete mastery of the scenery viewable from the principal dwellings, and did not tend to fear the ‘spoiling’ acts or omissions of neighbours.Footnote 35 Rather, the main threat to a beautiful outlook came from insiders – ie tenants of the estate, who were minded to remove, say, an attractive tree-lined vista. Protection of pleasing prospects in this setting was secured through the law of waste.Footnote 36 In Packington's Case,Footnote 37 the Lord Chancellor (Lord Hardwicke) ruled that a tenant for life who sought to destroy a sylvan landscape could be restrained by the reversioner. Similarly, in Aston's Case,Footnote 38 the same judge likened a tenant's attempt to destroy a picturesque tree-lined view from the family mansion to the destruction of the mansion itself (granting an injunction prohibiting the waste). Fraley draws upon Victorian-era waste treatise author Wyndham Bewes in commenting that ‘the law enforced waste strictly, holding landowners responsible for virtually all changes to the landscape’.Footnote 39 This is not to suggest that waste protected views per se, for there is no authority to indicate that it did. However, the protection of landscapes offered the next best thing.Footnote 40
2. Nineteenth century modernisation in actionable nuisance: understanding the suburban origins of ‘sensible personal discomfort’
Some of the extensive tort scholarship dealing with nuisance law during the industrial revolution treats the law as undergoing significant changes in response to the emergence of the industrial bourgeoisie – a theme which I examine in this section in connection with the modern fate of Bland.Footnote 41 One of the earliest analyses of this kind is Joel Brenner's.Footnote 42 His argument is that English courts applied nuisance law generously to wealth-generating industrial polluters, sending out a clear signal that pollution in seats of industry was an acceptable price to pay for the material benefits of industrialisation. Brenner attributes particular significance to Lord Westbury's judgment in Tipping:
If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality.Footnote 43
In this dictum, Lord Westbury is justifying why an action for ‘sensible personal discomfort’ must be determined with reference to the character of the neighbourhood, with townsfolk expected to tolerate ‘consequences’ (discomforts) that others are not. Lord Hoffmann (in Hunter) commented that Lord Westbury here ‘drew the line beyond which rural and landed England did not have to accept external costs imposed upon it by industrial pollution’.Footnote 44 However, Brenner's emphasis is less on the interests of the landed establishment and more on those of the new middle classes, and rightly, I argue, at least in connection with the topic at hand.Footnote 45
As with any class-deterministic account of the development of the common law, regard must be had to Richard Epstein's cautionary argument that people with the wealth to litigate tort law do not necessarily have a zero sum interest in either a ‘strong’ or ‘weak’ provision.Footnote 46 As a rule of thumb, a wealthy person is as likely to be a victim as a perpetrator of a tort. This applies specifically to the present subject matter (I argue), insofar as the Victorian era bourgeoisie sought from the common law both a narrow and a broad definition of actionable nuisance. They sought a narrow definition from the perspective of the seats of industry in which personal wealth was generated, on the individualist rationale that the urban proletariat's members ‘subjected themselves’ to some pollution (roughly Brenner's argument), but they sought a broad definition to protect the amenities of affluent suburban neighbourhoods on the outskirts of urban conurbations (something that is overlooked in Brenner's analysis, but is supportive of his core thesis). Interestingly, social historians characterise suburbs as a new type of neighbourhood, where paramount importance was attributed to ‘artistic beauty’, ‘display’, ‘tranquillity’ and ‘gentility’.Footnote 47 They were, it is said, ‘an instrument of moral, aesthetic and sanitary improvement [and] – a least at the beginning – of class segregation’.Footnote 48
Brenner's analysis of common law change does not deal with this aspect of the law's socio-economic context, nor crucially does it acknowledge the possibility that social change led to doctrinal change. Brenner locates change at a less formal – or more covert – level of the law's application (de facto rather than de jure).Footnote 49 His point is that change was hidden to conceal the underlying increase in power of the middle classes, but this makes his work an unwitting contributor to Sugarman's ‘textbook tradition’. Sugarman's ‘tradition’ is characterised by Victorian era English legal academics who sought to downplay the changeability of the common law in order to emphasise its principled permanence.Footnote 50 That strategy, Sugarman claims, was motivated by a nascent disciplinary goal of establishing law as a subject worthy of university study, against the backdrop of an intellectual climate in which the common law was apt to be treated as too changeable, even chaotic, to merit scholarly attention. Whilst Brenner's concern is with the politics of industrialisation rather than the politics of university legal education, the emphasis on what he calls nuisance law's ‘semantic continuity’ as between pre-industrial and industrial periods closely corresponds with, and reinforces, Sugarman's ‘tradition’.
Sugarman's thesis is not wholly shared by William Twining,Footnote 51 who singles out the work of Dicey, together with professor of common law, Frederick Pollock,Footnote 52 to highlight a more dynamic scholarly conception of common law doctrine that engaged openly with common law modernisation. Dicey wrote of ‘judicial legislation’ in terms that merit rather extensive quotation, with Brenner's analysis in mind:
Nor let anyone imagine that judicial legislation is a kind of law making which belongs wholly to the past … New combinations of circumstances – that is, new cases – constantly call for the application, which means in truth the extension of old principles; or, it may be, even for the thinking out of some new principle, in harmony with the general spirit of the law, fitted to meet the novel requirements of the time. Hence whole branches not of ancient but of very modern law have been built up, developed, or created by the action of the Courts.Footnote 53
However, Dicey did not elaborate on this in relation to tort generally, or nuisance law in particular.
Pollock, in the preface to The Law of Torts, explicitly adopted the ‘living law’ paradigm similar to that popularised across the Atlantic by Holmes (and Dicey).Footnote 54 He applauded the work of a selection of modernising English judges, highlighting the contributions of Lords Blackburn and Bramwell and Mr Justice Willes.Footnote 55 Yet there is a noticeable gap between Pollock's rhetoric of living law in the context of tort as a whole and his dry and banal exposition of the nuts and bolts of particular areas, including nuisance law.Footnote 56 For example, Pollock's definition of actionable nuisance relies heavily on Knight Bruce VC's judgment in Walter v Selfe.Footnote 57 As is discussed further below, Knight Bruce confined actionable nuisance to interferences with the enjoyment of property of a physical nature – impairing the ‘physical comfort of human existence’.Footnote 58 That implied continuity with the restrictive position of the early modern law described in the previous section. Yet Pollock addressed cases neither before nor after Walter, offering nothing more than a snapshot of a particular moment, represented by a specific judgment. This overlooked the possibility explored below that the law was changing to recognise actionable injury of a non-physical character, dealing with injury to modern sensibility.
Other general tort scholars writing at this time interpreted the law on the nature of actionable injury a little less restrictively. For example, John Salmond asserted that for an interference with the enjoyment of land to be actionable in nuisance the key criterion was that the interference is substantial;Footnote 59 he did not insist that it have a physical component. He further acknowledged that the standard of comfort differed according to the character of the locality. Whilst Salmond acquired a reputation for nuance in tort scholarship,Footnote 60 there is no hint of the ‘living law’ character of nuisance – no attempt to distinguish early modern and modern approaches – and this is fodder for Sugarman's thesis. Like Pollock, Salmond portrays the law on the topic of the definition of nuisance as somewhat permanent, rather than being altered to suit urbanisation and suburbanisation discussed later in this section.
Moving on to an example of a nuisance treatise, Sugarman's ‘tradition’ also finds expression in the leading text written by Garrett and Garrett.Footnote 61 Whilst recognising that nuisance remedies both physical injury and non-physical injury (qua sensible discomfort), the authors offered no contextualisation of this in terms of the development of the law in response to societal change. Thus it is perhaps inevitable that when the authors addressed the topic of injury to a pleasing view, they cited the dicta of Wray in Bland and Coke in Aldred as an enduringly accurate encapsulation of the current law.Footnote 62 The analysis below explores an alternative understanding of the law. It identifies what is argued to be modernisation in the law on this point that is hidden within the tradition of which these and other authors are part. The focus is on a trilogy of brickworks nuisance cases beginning with Walter, in which the judiciary could not agree on whether to keep with the established definition of nuisance or embrace a revised one. Out of this divergence of opinion emerged Lord Westbury's modern formulation of actionable nuisance in Tipping, which represented a break from the law of Wray and Coke.
Injured sensibility in London's Victorian suburbs – the brickworks trilogy
A distinctively modern feature of the cases concerning brickworks under scrutiny, leading up to Tipping, is that they were each brought by a claimant from London's new suburbs, in respect of odours that were unpleasant without being harmful to health or otherwise ‘physically’ damaging.Footnote 63 The suburban character of the claim in Walter is gleaned from the reference in the report to the claimant owning a property in Surbiton, on which had been ‘spen[t] considerable sums of money … on the garden, lawn and pleasure ground [in] rendering the same habitable and fit for residence by a respectable tenant’.Footnote 64 The claimant in Hole occupied a property in an unspecified West London suburb.Footnote 65 The claimant in Bamford v Turnley owned a ‘splendid’ villa within the ‘beautiful’ Beulah Spa estate, recently constructed on enclosed common land in Norwood, south of the city.Footnote 66
The central legal issue in Walter v Selfe was whether common law nuisance remedied injury to a proprietor's sensibility. The defendant said not, asserting that it is ‘not mere offensiveness of a smell that will entitle a neighbour to an injunction’.Footnote 67 Rather, the smell must be ‘injurious to health’, or at least ‘unwholesome’.Footnote 68 Though Knight Bruce VC found for the claimant, his reasoning is hard to follow, because it frames the actionability of an odour in unconvincing terms of physicality:
ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?Footnote 69
As mentioned above, in The Law of Torts, Pollock endorsed this passage as an accurate encapsulation of the definition of actionable nuisance.Footnote 70 He added that this precluded a claim based on ‘mere loss of amenity’.Footnote 71
Pollock's analysis is difficult to sustain. This is principally because it ignores the difficulty of reconciling Knight Bruce's statement in this case with Lord Westbury's speech in Tipping, which provided for actionable non-physical injury, now generally known as ‘amenity nuisance’.Footnote 72 It cannot be ruled out that Pollock was exercising a censorial role here, to the effect that he was championing Knight Bruce's approach as correct, and discouraging adherence to Lord Westbury's incautiously expansive remarks about the possibility of remedy for injury to sensibility independent of physicality. Pollock's censorial aims are discussed in Neil Duxbury's in-depth treatment of his work.Footnote 73 Alternatively, the mismatch between exposition and positive law in this instance may be a further illustration of the ‘over-simplication’ noted by Stephen Waddams in relation to Pollock's contract writing.Footnote 74 Either way, the pertinent point is that Pollock did not accurately expound on the law of the day regarding actionable injury.Footnote 75
The beginning of the end of the requirement of physicality, which I suggest is central to an understanding of the shift away from the dictum of Wray in Bland, is Hole. This case is best known today for Byles’ ruling that nuisance occasioned by a suitably located trade, conducted in a reasonable manner, is not actionable. Present day commentary is largely critical of this, and in particular, what is said to be the unduly industry-sympathetic policy behind the locality test, namely, to avoid ‘great injury of the manufacturing and social interests of the community’.Footnote 76 However, this policy is surely sound when situated in the context of a claim for injury to sensibility, as indeed it must be because of the facts of the case.Footnote 77 The defendant had argued, as per Walter, that an unpleasant smell was not actionable absent materiality or physicality. Byles dispensed with this requirement, ruling that ‘it is enough if it [the nuisance] renders the enjoyment of life and property uncomfortable’.Footnote 78 He reigned in the potentially broad scope of this ruling through the pragmatic remark that the actionability of discomfort is relative to the character of the neighbourhood.
These differences in the formulation of actionable injury in Walter and Hole are reflected in the divided Court of Exchequer in Bamford v Turnley, where opinion differed as to which of the approaches of Knight Bruce and Byles was correct. The majority of the Court (Pollock CB dissenting) favoured Knight Bruce, thus the court departed from Byles’ ruling in Hole. Williams J (on behalf of Erle and Keating JJ, and Wilde B)Footnote 79 denied that the character of the neighbourhood ever had anything to do with actionability in nuisance. The correct position was simple and well established: ie an ‘annoyance’ is either ‘sufficiently great’ to be actionable universally (ie regardless of locality), or it is not actionable at all.Footnote 80 The sense of continuity with the early modern case law noted in the previous section is apparent in the statement that:
a man may, without being liable to an action, exercise a lawful trade … notwithstanding it be carried on so near the house of another as to be an annoyance to him, in rendering his residence there less delectable or agreeable.Footnote 81
This is the approach of Wray, Coke and Blackstone.
By contrast, the Court of Exchequer's chief judge, Pollock,Footnote 82 broadly favoured the approach taken by Byles in Hole. He propounded a flexible definition of actionable nuisance that moved beyond the necessity-pleasure dichotomy of an earlier, simpler society:
The question so entirely depends on the surrounding circumstances, – the place where, the time when, the alleged nuisance, what, the mode of committing it, how, and the duration of it, whether temporary or permanent, occasional or continual, – as to make it impossible to lay down any rule of law applicable to every case, and which will also be useful in assisting a jury to come to a satisfactory conclusion: – it must at all times be a question of fact with reference to all the circumstances of the case.Footnote 83
The explicit modernity of this is captured by Pollock's reference to ‘actions which nobody in Westminster Hall dreamed of [being brought within nuisance law] as we become more familiar with the exigencies of society’.Footnote 84
Tipping and the emergence of ‘sensible personal discomfort’
Despite Professor Pollock's ambivalence towards the case, Tipping has come to be understood as the leading authority on nuisance, laying the foundations of the law today. As explained by Brian Simpson,Footnote 85 Tipping was a painstakingly and expensively constructed test case brought by wealthy parties aimed at resolving the confusion arising from the Hole and Bamford rulings. Of the various speeches of their Lordships, attention has centred on that of Lord Westbury, the Lord Chancellor within Viscount Palmerston's cabinet. Tipping was the final judgment of his career – his ‘swansong’Footnote 86 – but Simpson's analysis is critical. The problem (so Simpson suggested) is that Lord Westbury's distinction between physical and non-physical injury is ‘sloppy’, in two ways.Footnote 87 First, it fails to define material or physical injury (actionable absolutely). Second, it resurrects the ‘ghost’ of Hole, in making so-called ‘sensible personal discomfort’ actionable subject to the character of the neighbourhood.Footnote 88
This misses the point that the central issue in Hole (and indeed all the brickworks cases) was the actionability of injured sensibility, independent of physicality. It also neglects the care that Lord Westbury took to define actionable ‘sensible personal discomfort’. It is defined as ‘anything that discomposes or injuriously affects the senses or the nerves’.Footnote 89 At face value, the reference to ‘anything’ encompasses the senses of smell, hearing, taste and sight (and, with less obvious application) touch. On this reading, Lord Westbury's judgment in Tipping is an ingenious stroke of modernity, which recognises that the time has arrived for liberalisation in the scope of actionable injury to encompass injured sensibility, and to do so on a locality-specific, rather than universal, basis. This is a break from the old architecture in regard to both the nuisances covered (a range of non-physical ones) and the structure of coverage (relative rather than universal).
Shortly after Tipping, the judgment in Crump v Lambert Footnote 90 dispelled any sense that the novel heading of sensible personal discomfort might evolve into a ‘second class’ form of actionable nuisance. The case concerned noise from a blast furnace on the outskirts of a midlands industrial centre, which the defendant submitted ought in equity be treated differently from a case involving physical injury; an injunction should not be granted for mere discomfort. The court rejected this, ruling that sensible personal discomfort, where out of character with the neighbourhood, was no less substantial by virtue of its lack of physicality, and merited the award of an injunction. This was the first in a long line of injunctions awarded under Lord Westbury's sensible personal discomfort heading.
What, though, of any cases in which explicit recognition is given to Tipping as a case that modernised the law, by departing from the necessity-delight dichotomy of old? In an easement-focused case, Angus v Dalton,Footnote 91 Lord Blackburn impugned the rule in Bland as out-dated:
The distinction between a right to light and a right to prospect, on the grounds that one is a matter of necessity whereas the other of delight, is to my mind more quaint than satisfactory.Footnote 92
Blackburn is singled out by Pollock as a preeminent moderniser.Footnote 93 What exactly is out-dated here is not specified, and to imply that it is a reference to Tipping and its wider legal and social context would be pure guesswork. But that does not lessen the significance of this negative treatment of Bland by a distinguished Law Lord in which (for Pollock) the ‘fire’ of modernity burned. Surprisingly, Angus is portrayed as supportive of the permanence of Bland.Footnote 94
3. Reasons for the permanence of the ‘rule in Bland’?
This section identifies and evaluates the reasons given for the enduring validity of Wray's analysis, as per the consensus. As noted at the outset, the veracity of the consensus is largely considered self evident – it is clear or obvious, and reasons beyond this do not much come into the picture. Nevertheless, drawing on fragments of scholarly and judicial material – including within the wider common law world – it is possible to identify six purported rationales:
(i) ‘sensible personal discomfort’ does not engage the sense of sight;
(ii) discomfort is not an aesthetic criterion;
(iii) an injured view is not an emanation from land;
(iv) a proprietor wishing to protect a pleasing view can adequately do so through agreeing a restrictive covenant with their neighbour;
(v) the protection of pleasing views over and above covenants is better secured through planning regulation;
(vi) excluding injured views is necessary to control the floodgates of litigation.
These are examined in turn.
‘Sensible personal discomfort’ does not engage the sense of sight
This was addressed by the Court of Appeal in Thompson Schwab.Footnote 95 The discomforting sight at the centre of this case was a Mayfair brothel, which the claimant considered offensive. One of the defence arguments was to challenge the suggestion that ‘sensible personal discomfort’ encompassed indecent sights. Finding for the claimant, Lord Evershed said of the defendant's activities:
It does not, to my mind, follow at all that their [the defendant] activities should be regarded as free from the risk or possibility that they cause a nuisance in the proper sense of that term to a neighbour merely because they do not impinge upon the senses – for example the nose or the ear – as would the emanation of a smell or a noise.Footnote 96
This was strongly supported, with helpful elaboration, by the author of the case note in the Law Quarterly Review: ‘As it is clear that anything which is obnoxious to the senses of hearing and smelling may constitute a nuisance, it would be astonishing if the sense of seeing should be regarded as excluded’.Footnote 97
Thompson Schwab is an important case that is returned to below in connection with a further rationale for the consensus (in regard to the ‘requirement’ of an emanation from land). Staying with the point at hand, it is pertinent to acknowledge two other English claims in which injuries to the sense of sight have been held actionable in principle, namely, Cook v South West Water Services,Footnote 98 and Hughes v South West Water.Footnote 99 Each concerns pollution of rivers by sewage, which spoilt the visual appearance of the ‘land’ in aesthetic terms (rather than in terms of public morality/indecency). In Cook, the judge found (on the basis of photographic evidence) that foam and algae caused by the nutrient rich sewage ‘defac[ed] the beauty of the river in its progress through delightful countryside’.Footnote 100 The claim succeeded on this basis. Similarly, in Hughes, sewage pollution amounted to nuisance by virtue of ‘the visual effect of the algal blooms, the unpleasantness of bringing in tackle with green slime on it’.Footnote 101 These county court cases are persuasive in principle, if not of course binding.
Discomfort is not an ‘aesthetic criterion’
Writing in the 1940s, Cecil Fifoot asserted that ‘a householder cannot in nuisance complain if his outlook is spoilt [because] … comfort, and not aesthetics, offer[s] the criterion’.Footnote 102 The pollution cases above are a challenge to that analysis, but some support for this can be found in the United States case law. Though not binding in England and Wales, US case law offers an interesting comparative perspective. For example, in the Missouri case of Ness,Footnote 103 the plaintiff complained of unsightly rubbish (rusted metal, broken concrete, old sinks and stoves) dumped in the neighbouring yard. The Missouri Court of Appeals denied the claim:
Aesthetic considerations are fraught with subjectivity … beauty is in the eye of the beholder. Judicial forage into such a nebulous area would be chaotic. Any imaginary good from doing so is far outweighed by the lurking danger of unduly circumscribing inherent rights of ownership of property and grossly intimidating their lawful exercise. This court has no inclination to knowingly infuse the law with such rampant uncertainty.Footnote 104
Perhaps the most recent illustration of this approach is the Vermont Supreme Court's refusal in 2017, in the case of Myrick, to overturn late nineteenth century state authority to the effect that an unsightly use of land is not actionable in the absence of malice.Footnote 105 One of the reasons given for the outcome of Myrick was that visual aesthetic nuisance is ‘unquantifiable’.
This is not, however, the consensus position across the US federation, for there is significant variation on this point between the various US states. Some states go as far as to remedy an ugly land use when accompanied by more established actionable discomforts (eg noise or smell). Thus in Sowers, the defendant's plans for a wind turbine were injuncted on the basis of ugliness and noise; pure ugliness would not have been sufficient.Footnote 106 Sometimes state judges have gone further in recognising the soundness of a claim where the unpleasant sight of the defendant's activities is the claim's sole basis. An early and oft-noted example is Virginian case of Parkersburg Builders Material Company v Barrack (another case concerning nuisance unsightly scrap in a residential area).Footnote 107 Judge Maxwell stated that:
Happily, the day has arrived when persons may entertain appreciation of the aesthetic and be heard in equity [and common law] in vindication of their love of the beautiful … Basically, this is because a thing visually offensive may seriously affect the residents of a community in the reasonable enjoyment of their homes.Footnote 108
This approach was taken in the Colorado case of Allison v Smith – another scrap case.Footnote 109 Judge Metzger stated that the unsightly waste could amount to a nuisance, insofar as it amounted to an unreasonable and substantial interference with the enjoyment of land. It did not matter that the scrap was not smelly or noisy. Being a source of discomfort was enough. In this respect, the judge rightly described the scope of actionable discomfort as ‘inclusive’.Footnote 110 That approach appears to have academic support.Footnote 111
However, it is in the South African case of Waterhouse Properties Footnote 112 that Lord Westbury's dictum in Tipping finds some of its clearest expression. The complaint concerned obstruction of a view of a ‘pretty river’ by the raising of the defendant's roof. It was argued by the claimant that the injury was actionable because the view was integral to the enjoyment of their property, which was located in a ‘pretty’ and ‘exclusive’ neighbourhood. The court agreed (per Justice Rampai):
If we accept and I believe we should, that we are here dealing with an extraordinary situation of two neighbouring properties with unique attributes, developed in a highly exclusive area on the pretty bank of a splendid river which is the soul of everything in the rich men's playground – then we must appreciate, and acknowledge that to a reasonable and neutral property owner in that particular society a view of the river in question is much more than a pure aesthetic matter. It is an asset with unquestionable proprietary significance.Footnote 113
Whilst the judge rejected the actionability of ‘pure aesthetic loss’, he accepted that the loss of aesthetic value was discomforting, whereby it derived its proprietary significance.
Returning to Fifoot's point in the context of English and wider common law world case law, the difficulty is that it is precisely because comfort is the criterion that aesthetic-based loss is in principle actionable. In plenty of cases comfort and aesthetics are closely intertwined. The cases noted in the previous sections illustrate this, perhaps above all Bamford v Turnley, in which there were multiple layers of aesthetic consideration at play – the pleasing look of the property, the unpleasant (but not unhealthy) smell in particular.Footnote 114 Yet the parties in this dispute did not (as Fifoot in the quote above does) seek to distinguish between aesthetics and comfort.
Emanation from land
It is said that normally a nuisance will take the form of an ‘emanation’ from the land of the defendant, which ‘invades’ the land of the neighbour. Lord Goff in Hunter mentioned that:
more is required than the mere presence of a neighbouring building to give rise to an actionable private nuisance. Indeed, for an action in private nuisance to lie in respect of interference with the plaintiff's enjoyment of his land, it will generally arise from something emanating from the defendant's land.Footnote 115
This is a general requirement, but there are exceptions. As Lord Lloyd pointed out in this case, a nuisance can take the form of state of affairs.Footnote 116 That is the form in which seemingly most of the successful impaired view cases from around the common law world have been presented. For example, in Sowers, the injunction prohibited ‘a significant imposition’ on the plaintiffs (taking the form of a 75 ft wind turbine).Footnote 117 The turbine risked imposing a ‘sizeable obstacle overshadowing’ the plaintiffs’ land, which could have an ‘impact on views’. The terms ‘impact’, ‘imposition’ and ‘overshadowing’ are not the same as ‘emanation’. The nuisance here takes the form of a state of affairs.Footnote 118
On the other hand, it is unclear that it is indeed necessary to depart from the rhetoric of emanation to cater for the actionability of an offensive sight. In Thompson Schwab v Costaki Footnote 119 Lord Evershed used the language of emanation in stating that the defendant and their clientele ‘force[d] themselves on the sense of sight’ of the neighbouring claimant and his family.Footnote 120 It has been suggested by one commentator that ‘emanation’ is in this context being used metaphorically.Footnote 121 But as light travels, a bad view can emanate literally, no less than a bad noise or smell. Yet pedantry aside, the state of affairs paradigm is advantageous, because it reinforces the non-physical nature of an injured view, and indeed of injured sensibilities more generally.
Alternative private law remedies
Lord Lloyd in Hunter considered that a principal objection to nuisance law remedying an injured view is that a neighbour wishing to protect a pleasing view can adequately do so by means of a restrictive covenant:
The house-owner who has a fine view of the South Downs may find that his neighbour has built so as to obscure his view. But there is no redress, unless, perchance, the neighbour's land was subject to a restrictive covenant in the house-owner's favour.Footnote 122
A case that highlights the potential of this land law/contractual approach is Dennis v Davies. Footnote 123 On facts similar to Waterhouse Properties (obstruction of a view over a pretty river, in this case the Thames), the claimant established that they suffered an ‘annoyance’ contrary to a covenant prohibiting a ‘nuisance or an annoyance’.
Such wording in covenants is fairly standard practice, and thus Dennis may come to the aid of a considerable number of proprietors who, constrained by the consensus, are advised that an injured view does not sound in nuisance. But that begs the central question: what is the basis for treating a loss of view as at most an annoyance? Covenants and nuisances engage discrete areas of law, which converge from time to time without ever limiting one another. Nuisance law has an entirely distinctive normative basis. As explained well by Lord Millett, with nuisance the ‘governing principle is good neighbourliness … A landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him’.Footnote 124 Covenants deal with obligations that arise under contract.
The impact of regulation
Lord Hoffmann in Hunter stated that planning regulation was a more suitable forum within which to protect cherished views than a nuisance action:
the planning system is, I think, a far more appropriate form of control, from the point of view of both the developer and the public, than enlarging the right to bring actions for nuisance at common law. It enables the issues to be debated before an expert forum at a planning inquiry and gives the developer the advantage of certainty as to what he is entitled to build.Footnote 125
Once again, the reference to ‘enlargement’ of actionable injury begs the central question at issue in this paper (in which it is suggested that nuisance law might already protect against private injury to a pleasing view). But there are three further difficulties with Lord Hoffmann's reasoning.
First, a proprietor with the benefit of a pleasing view which they wish to protect from harmful development may not be permitted to have their objections taken into account by the planning authority. This is because loss of a private view is not normally a material consideration for purposes of statutory development control.Footnote 126 Planning lawyers in this context tend to distinguish between a private interest in the pleasing view (not normally a material consideration) and the public interest in a pleasing ‘landscape’ (normally a material consideration). This is not the place to enter into a discussion of public law protection of landscapes. The point, rather, is that the planning system is not designed to resolve disputes between neighbours over private views, or indeed any other private law matter.Footnote 127
A related difficulty is that Hunter was decided before Coventry v Lawrence,Footnote 128 in which the Supreme Court overturned earlier authority concerning the impact of planning on nuisance. It departed from the ruling in Gillingham Borough Docks Footnote 129 that planning permission alters the character of the neighbourhood within which the actionability of sensible personal discomfort falls to be assessed. The case law here (including Hunter) is part of a broader debate about the scope for public regulation of land use rendering overlapping areas of private law obsolescent.Footnote 130 The main significance of Coventry is the ruling that planning regulation and nuisance law are autonomous administrative and private law provisions, which co-exist in parallel (rather than the former cutting down or otherwise limiting the latter, or vice versa). Lord Hoffmann's notion that planning control is ‘more appropriate’ than nuisance law in regard to the remedying of injured views implies a functional substitutability that did not anticipate the significant extent to which the two now operate in parallel as a consequence of Coventry.
Finally, the Supreme Court in Coventry ruled that public interest considerations of the kind that occupied Lord Hoffmann come into play not so much through the door of liability but through the exercise of discretion regarding the award of equitable remedies, notably an injunction.Footnote 131 Whilst planning permission no longer alters the character of the neighbourhood for purposes of nuisance liability, it may weigh in favour of a decision to award damages in lieu of an injunction.Footnote 132 Ex hypothesi, were a wind turbine operator, on facts broadly similar to Sowers, to be found liable in nuisance on the basis of sensible personal discomfort visually (or in any other sense), it is open to them to argue that equitable damages are a more appropriate remedy (say because it is not in the public interest to halt renewable energy generation which promotes statutory carbon budgets on the basis of an individual's discomfort).
Floodgates
Both Lords Lloyd and Hoffmann in Hunter refer approvingly to Lord Hardwicke's consequentialist reasoning in Attorney General v Doughty,Footnote 133 concerning the negative impact on urban development of a ‘right to a view’. In this eighteenth century chancery appeal case the Lord Chancellor stated:
I know no general rule of common law, which warrants that, or says, that building so as to stop another's prospect is a nuisance. Was that the case, there could be no great towns; and I must grant injunctions to all the new buildings in this town.Footnote 134
This is cited by some of the judges in Hunter as a justification for an injured view never sounding in nuisance.Footnote 135 However, the passage above is more particularistic. It is to the effect that the ‘stopping’ of a view over another's land is not generally actionable in ‘great towns’. As Lord Hardwicke says in this case: ‘There may be such a right as this’,Footnote 136 such that the development proceeded ‘at its peril’.Footnote 137
Lord Hardwicke's remarks open onto a deeper concern about the difficulty of defining an injured view with sufficient precision to avoid damaging uncertainty. Wray's bright-line exclusion in Bland has certainty on its side. Yet nuisance law has a number of control devices that limit this uncertainty and guard against the risk of an unmanageable flood of litigation. One is the objectivity of the standard of sensible personal discomfort in terms of the ‘reasonable neighbour’. Application of this standard may benefit from ‘technical’ expertise, as it does with smells and noise. Expertise regarding visual aesthetics is well developed in a public law setting, for it informs planning inquiries dealing with objections to development based on harm to landscape.Footnote 138 However, the difference is that nuisance is concerned with private relationships and private (in this case visual) perceptions of discomfort rather than public interest with regard to a landscape. This could work to the advantage of parties to nuisance proceedings, for as Maria Lee points out, ‘human responses may be more openly discussed in respect of visual impacts than landscapes’.Footnote 139
Other control devices which limit exposure to liability include the absence of a thin skull rule of the kind that is applicable to negligence (a defendant in nuisance proceedings will not be obliged to accommodate a claimant's unconventional or otherwise idiosyncratic aesthetic sensibility). Another is the locality test, which means that different areas are subject to higher or lower standards of ‘visual amenity’. Further ‘limiting devices’ to note include the de minimis damage rule, the bar to a remedy for economic loss, and the requirement of standing to sue, which is confined to persons with a proprietary interest. Finally, there is discretion to withhold an injunction and award equitable damages, mentioned above. This is not to deny that there will be many marginal cases in which it is difficult for the court to be satisfied that the interference is substantial, but some of the cases considered in this paper – notably Waterhouse Properties – illustrate that this difficulty is surmountable.Footnote 140 A broken view can be more ‘serious’ than a broken window and that above all is what justifies judicial protection.Footnote 141
Conclusions
The central argument in this paper is that the consensus that an injured view is not in any circumstances remediable within the framework of nuisance law, following Bland, takes the idea of the permanence of the common law principles to an implausible extreme. Although this conclusion is supported by so-called contextual material, the overwhelming bulk of the analysis is classically formalistic, in its attention to doctrine. Thus doctrinally speaking, the consensus lacks formal credibility because: (1) Bland is an unreported authority, and the doctrine of precedent provides special rules relating to the handling of such cases;Footnote 142 (2) it is unclear that the exclusion of pleasing views is the ratio decidendi of Bland, insofar as Mr Bland may not have suffered, or indeed claimed to have suffered, loss to a pleasing view; (3) Bland has received a mixed judicial reception (eg it was criticised as old fashioned by Lord Blackburn in Angus v Dalton); (4) Bland is difficult to reconcile with subsequent English authority on the heads of actionable nuisance (notably Tipping, but also Thompson Schwab); (5) Bland has not been followed in case law on injured views in some legal systems elsewhere in the wider common law world.Footnote 143
This, then, introduces a different slant on the familiar disciplinary issue of the divergence between ‘law in books’ and ‘law in practice’. Without detracting from the literature which demonstrates that practice ‘exceeds’ doctrine,Footnote 144 it is also important to recognise practical problems the ‘other way’, that stem from over-simplified expositions of doctrine in situations well characterised by Sugarman.Footnote 145 The superficial treatment of Bland and the topic of the definition of nuisance more generally is a legacy of the ‘textbook tradition’ which risks denying proprietors the benefits of modernisation in the law. The solution for the discipline is not to hasten the decline in the esteem of the textbook or treatise, but rather to encourage doctrinal analysis that embraces the essential corrigibility of statements about the content of the law. A flourishing modern law school will prioritise treatise writing and doctrinal work that is nuanced enough to command the respect of the judiciary.Footnote 146 Thus a textbook tradition – broadly understood – need not be at odds with current higher education research funding formulas.Footnote 147
