Modern nuisance law from a historical perspective

Palmer, Robert C

Abstract

This thesis discusses issues affecting contemporary nuisance law from an historical standpoint. It is recognised that there is a considerable volume of literature relating to the nineteenth century antecedents of the law today. Yet nuisance is a most ancient tort, dating back almost a thousand years, and likewise the environmental problems it addresses date back to antiquity. Thus there is scope for a deeper historical analysis of this area of the common law which looks beyond industrialisation and the revolutionary nuisances of that period to the developments in the law applicable to environmental nuisances of feudal and post-feudal agrarian times. That is the aim of this thesis. It examines the lessons scholars and practitioners can learn by revisiting the origins of the law, and by critically reflecting on key evolutionary milestones which have shaped the law up to the present day.
Four specific areas of current debate regarding nuisance doctrine are the focus of attention. Standing is one, concerning who has the right to sue in private nuisance. What types of injury are remediable with private nuisance is another, with particular reference to the question of the actionability of personal injury. The relationship between private nuisance and negligence is another, with reference to the issue of ‘reasonableness’ within private nuisance. The remedy of an injunction is the fourth area. Throughout the discussion of each of these issues the discussion follows a common pattern, beginning with identification of a leading late twentieth or early twenty-first century case which is the subject of debate and exploring the law at issue from an historical perspective, including the ‘original position’ in medieval case law.
Nuisance law is currently encountering difficulties which not only prevent it from having a stable doctrinal identity in relation to other torts (and in relation to ‘its own’ history), but which also cast doubt on its scope for it continuing to provide worthwhile environmental protection in a modern age characterised by the emergence and proliferation of environmental regulatory bodies. It is not argued that the solution to nuisance law’s problems lies in returning to an original position and re-applying it to changing political realities. Nonetheless, it is argued that there is a ‘simple form’ of the law to discover from within a millennia of case law, and it is in many – but not all – respects different from the law as it now stands (or is thought to stand). Many judges and scholars have misunderstood and even to some extent misused history and this has contributed to the difficulties the law is faced with today.
This research advocates that when the tort is considered from a historical perspective – where we can find its simplest form - there is scope for its traditional ‘green credentials’ to again be realised.

Citation

Palmer, R. C. Modern nuisance law from a historical perspective. (Thesis). University of the West of England. Retrieved from https://uwe-repository.worktribe.com/output/838521

• Thesis Type: Thesis
• Publicly Available Date: Jun 6, 2019
• Keywords: private nuisance, historical development, environmental law, environmental protection
• Public URL: https://uwe-repository.worktribe.com/output/838521
• Award Date: Feb 15, 2015