University of Otago Law Festschrifts
Last Updated: 31 May 2019
Among Professor John Smillie’s contributions to legal literature was his responsibility for four chapters of Todd’s The Law of Torts in New Zealand, the leading textbook on the subject in New Zealand. The four chapters covered trespass to land, nuisance, Rylands v Fletcher, and remedies. When John Smillie stood down from Todd, I had the privilege of being asked to fill his shoes. Much of the text remains his language and that of his predecessor, the late Justice Robert Chambers.1 Given the longevity of the material in these chapters, is there anything that can now be added? Amazingly, since I took over the chapters in Todd, some significant developments have occurred. In particular important Supreme Court judgments in Canada, the United Kingdom and New Zealand have provided new fodder for a discussion of nuisance, although the statements in the New Zealand judgment are obiter.2 So, this essay focuses on nuisance and recent cases, especially through the lens of the Canadian judgment in Antrim. It offers some discursive thoughts on the state of the tort.
I avoid Rylands v Fletcher.3 It is now rather curiously described as a subset of nuisance4 and yet the criteria for its application remain distinct. The late Professor John Fleming saw this eponymous tort as potentially playing a major role in controlling ultra-hazardous activities, but this had already been snuffed out by
* Professor of Law, Victoria University of Wellington, NZ. I extend special thanks to my
colleague Dr Bevan Marten and my research assistant, Sean Brennan, for their perceptive comments and advice.
3 Rylands v Fletcher
 UKHL 1.
4 Hamilton v Papakura District Council  1 NZLR 265 (CA) at 283, following Cambridge
Water Co Ltd v Eastern Counties Leather plc  UKHL 12;  2 AC 264 (HL).
the decision in Read v Lyons.5 More recent judgments such as Cambridge Water,6 Easton Agriculture7 and Stannard (t/a Wyvern Tyres) v Gore8 have nearly killed Rylands v Fletcher off, as has explicitly happened in Australia.9 However, perhaps the better approach is “never say never”,10 or even to seek to bring new life to this “subset” in the interests of environmental protection, as has recently been argued by two Canadian authors.11
Given the prevalence of negligence in modern day civil liability, does nuisance have a future? It is sometimes said to be an environmental tort offering “a positive medium of legal redress for environmentalists”.12 Canadian writer, Stewart sees it as playing a significant role in fighting chemical contamination.13 However, given the massive task in responding to the effects of climate change and the use of planning procedures to try and achieve “sustainability”, where does nuisance fit in? How coherent a tool is it for dealing with potentially grave environmental crises and complex planning issues?
When I start my lectures on nuisance, I quote Fleming:14
5 Read v J Lyons & Co Ltd  UKHL 2;  AC 156 (HL). See John Fleming The Law of Torts (9th ed,
LBC Information Services, Sydney, 1998) at 383. This is the last edition that Fleming himself wrote.
7 Easton Agriculture Ltd v Manawatu-Wanganui Regional Council  NZHC 1005;  1 NZLR 120 (HC) at
 where Kós J thought that it may be time to reconsider whether commonplace utilities
such as water and sewerage should still be considered non-natural (at ). The decision was appealed but dismissed by the Court of Appeal (Easton Agriculture Ltd v ManawatuWanganui Regional Council  NZCA 79 (26 March 2013)). For further discussion, see Sean Brennan “Local Authority Liability for Flooding: Where Should Loss Fall?” (2015) 46 VUWLR 85.
9 Burnie Port Authority v General Jones Pty Ltd  HCA 13; (1994) 179 CLR 520.
10 The expression used by Lord Nicholls in the Privy Council in Bottrill v A  2 NZLR 721 (PC) at .
11 Lynda Collins and Laura Freitag “Rescuing Rylands: Strict Liability and Environmental Protection in Canada” (2015) 23 Tort L Rev 85.
12 John McLaren “The Common Law Nuisance
Action and the Environmental Battle – Well-tempered Sword or Broken
(1972) 10 Osgoode Hall LJ 505 at 516, recently quoted by Brandon
Stewart “Contamination as a Chemical Interference with Land:
(Private Nuisance) Truck Should Stop after Antrim” (2015) 23 Tort L Rev 98
13 Stewart, above n 12.
14 Fleming, above n 5, at 457. Allan Beever says that “[t]he conventional view of the law of nuisance is a failure. Its fundamental principles are false. For this reason, it is insufficient
Few words in the legal vocabulary are bedevilled with so much obscurity and confusion as “nuisance”. Once tolerably precise and well understood, the concept has eventually become so amorphous as well nigh to defy rational exposition ... it has become a catch-all for a multitude of ill-assorted sins, linking offensive smells, crowing roosters, obstructions of rights of way, defective cellar flaps, street queues, lotteries, houses of ill-fame and a host of other rag-ends of the law.
Can such a “rag-tag” tort compete with modern day conditions and fulfil a useful function? This contribution does not pretend to provide a real answer to this question but it is worth remembering that the common law has the habit of filling gaps that Parliament often leaves open. Perhaps nuisance will be fitter for purpose if some of the “obscurity and confusion” that Fleming mentions is removed. To what extent have the three Supreme Courts of Canada, the United Kingdom and New Zealand done this?
2. A UNIFIED APPROACH?
Connoisseurs of the law of nuisance will be well aware of the conventional distinction made between two types of nuisance: those that cause physical or material damage and those where the harm is to the personal use and enjoyment of the land.15 Another category concerns when natural rights, easements or profits à prendre are interfered with, but that category is put to one side for now.16 With respect to a nuisance that causes actual harm it is said that liability flows for the loss automatically so long as the harm was caused by the defendant and is not trivial or de minimis. In Halsey17 liability was found on several fronts, including the effect of the petrol company’s activities on the plaintiff’s washing. While the latter sounds trivial, it is not so if “the little man” or the ordinary person is forced to go out and buy new bed linen among other things. Thus, for damage that is more than trivial an assessment of all the factors including the nature of the locality of the nuisance is not required.
With respect to a nuisance that does not cause physical loss but interferes with the enjoyment and use of land, it is said that liability depends on whether the interference is sufficiently serious, taking account of all the circumstances. Thus, liability is a question of degree, balancing factors such as the locality, nature, extent,
merely to revise the law. It is necessary to
start again”: The Law of Private Nuisance (Hart Publishing, Oxford,
2013) at 13.
15 St Helen’s Smelting Co v Tipping (1865) 11 HLC 642, 11 ER 1483 (HL).
16 See below Part 5.
17 Halsey v Esso Petroleum Co Ltd  1 WLR 683.
timing and frequency of the alleged nuisance, all judged against the standards of the ordinary reasonable person.18
At first sight, the bifurcated approach19 just outlined appears justified. If you use your land in such a way that you cause your neighbour’s plants to die (for example, because of fumes and chemicals), then you should have to pay redress and be forced to stop causing the harm. Your neighbour should not be required to prove that you acted negligently. In contrast, if you make an annoying noise, how annoying does it have to be to merit legal liability? This is a matter of degree.
Despite these appearances, the Canadian Supreme Court has departed from the traditional bifurcation to rely instead on a unified test with two parts: is the interference (i) substantial and (ii) unreasonable? This test applies in all cases, so that “the reasonableness inquiry should not be short-circuited on the basis of certain categories of interference that are considered self-evidently unreasonable”.20 Where there is actual physical harm that is significant and permanent, “the reasonableness analysis may be very brief” but is still necessary.21
The Canadian decision in Antrim illustrates the difficulty of the distinction. In short, the plaintiff ran a “truck stop complex” where truckies and other drivers could stop for refreshment and refuelling while travelling along the highway. The business suffered massively when the highway was reconstructed and re-routed, severely restricting access to the truck stop. The proceedings were actually for “injurious affection” under the Expropriations Act 199022 but the claim turned on the question of whether there was an actionable nuisance at common law. The Canadian Supreme Court held that there was and upheld the Ontario Municipal Board’s award of $58,000 for business loss and $335,000 for the land’s loss of market value. The judgment raises several fascinating issues that we explore in turn, but first let us consider the traditional bifurcated distinction.
18 See, for example, Halsey v Esso Petroleum
Co Ltd  1 WLR 683. In the mysterious judgment of Jacobs v Waikato
District Council  NZAR 1343 at  Heath J states that “[t]here
must be relevant physical damage to the subject property” but this
cannot be read as excluding the second category of nuisance where physical
damage is not required. That case was decided against
the claimant because of a
lack of causation.
19 Terminology used by Brennan, above n 7, at 92.
20 Antrim Truck Centre Ltd v Ontario
(Transportation) 2013 SCC 13,  1 SCR 594 at ,  and
21 Antrim Truck Centre Ltd v Ontario (Transportation) 2013 SCC 13,  1 SCR 594 at .
22 In New Zealand, see Local Government Act 2002, s 190 and Public Works Act 1981, Part 5.
The facts of Antrim themselves raise acutely how awkward it can be to distinguish between the two traditional divisions.23 The loss of business and the diminution in property values are real but they are not physical loss like the harm to trees and plants in the classic case of St Helen’s.24 Indeed, there is some nervousness over whether capital value losses and economic loss can be recovered at all in nuisance. This can be seen for example in Hawkes Bay Protein Ltd v Davidson25 where Gendall J discussed damages for capital loss and thought that the task of proving such loss could pose difficulties.
Although disruption to business is not the traditional form of damage in nuisance, is there any real reason why it should not be the subject of a remedy? This question did not bother the Supreme Court of Canada. While it may attract damages rather than an injunction, depending on the nature of the interference it may still amount to a substantial and unreasonable interference with the use of land.
However, interference with business might just as easily fit into the second traditional category of nuisance, ie interference with the ordinary use and enjoyment of land. Noise may interfere with the pleasure of reading a book and engaging in polite conversation but it may also annoy customers browsing in a shop or asking the shopkeeper questions about purchases. Such annoyances may drive customers away so that the shop is no longer profitable, thus undermining the shop owner’s use and enjoyment of the property. Lunney and Oliphant26 make this point and note that in the famous Hunter case27 Lord Hoffmann accepted that an award of damages could be made for consequential loss of profits without making it clear into which category such loss fell. We could in fact extend this question to other forms of loss. A person’s favourite roses may be ruined by the neighbour’s activities and ostensibly fall within the first category but their loss affects the person’s use and enjoyment of land and falls just as easily into the second category.
If we follow Antrim, then the conundrum of deciding into which category an alleged nuisance falls disappears. Instead, so long as the loss is not trivial, the inquiry is about reasonableness. While actual material harm will usually be
23 Antrim Truck Centre Ltd v Ontario
(Transportation) 2013 SCC 13,  1 SCR 594 especially at . One of
the best commentaries on the issue is in Simon Deakin, Angus Johnston and Basil
Markesinis Markesinis and Deakin’s Tort Law
(7th ed, Clarendon Press, Oxford, 2013) at
24 St Helen’s Smelting Co v Tipping (1865) 11 HLC 642, 11 ER 1483 (HL).
25 Hawkes Bay Protein Ltd v Davidson  1 NZLR 536 at -, especially .
26 Mark Lunney and Ken Oliphant Tort Law
Text and Materials (5th ed, Oxford
University Press, Oxford, 2013) at 631 and other texts cited
27 Hunter v Canary Wharf
Ltd  AC 655 (HL) at 706.
unreasonable, this will not always be the case. So, for example, liability may be lost if the plaintiff’s activities are unusually sensitive.28 If the harm is caused by natural forces, then liability may arise only if inaction in dealing with the problem is unreasonable, which would not be so if the owner had no knowledge of it. A classic example of this is tree roots in Lord Cooke’s last judgment as a Law Lord in Delaware Mansions.29 More recently in New Zealand, the question of the encroachment of trees – trunks, branches and roots – arose in Blakesfield Ltd v Foote,30 where Mander J granted declarations31 for trees to be removed or pruned. The plaintiff was a developer of a new subdivision and had three sections for sale adjacent to the defendants’ trees. No actual damage was proven, for example roots blocking drains or pipes or cracking paths. Nevertheless, liability was held to arise because overhanging branches detracted from “the amenity and attractiveness of the sections”, impacting on their value, and the roots interfered with the cultivation of “a landscape strip” that future owners could use for gardening. In other words, the nuisance was based on economic viability of the development and this was hitting the developer’s pocket. It did not actually affect the developer’s pleasures of life in the way that noise might interfere with quietly reading a book, but it was affecting the “amenity” value32 of the land and had the potential to cause quantifiable loss. Mander J did not agonise over which category the case fell into: instead he asked directly whether the situation was capable of constituting a nuisance.
Again, if the harm is transitory, then in accordance with the commonly mentioned adage of “give and take”, there may not necessarily be liability. An example of this, used in Antrim, is Andreae v Selfridge Co Ltd33 where operations such as demolition and rebuilding occur. Neighbours have to accept that a certain amount of disruption must be tolerated for the period that the work is being done, even if this causes noise and dust, and quite possibly an effect on sales. In Antrim itself, the effect of the road works was permanent, thus the issue of transitoriness did not arise.
28 Robinson v Kilvert (1889) 41 Ch D 88 (plaintiff’s paper overheated because of its delicate nature in circumstances where ordinary paper would not have been harmed). The result may be different if the defendant has acted with malice: Hollywood Silver Fox Farm Ltd v Emmett  2 KB 468.
29 Delaware Mansions Ltd v Lord Mayor and
Citizens of the City of Westminster  UKHL 55,  1 AC
30 Blakesfield Ltd v Foote  NZHC 1325,  NZAR 1140.
31 The declarations and orders were, in effect, injunctions.
32 Note the contrasting definition of
“amenity values” in s 2 of the Resource Management Act 1991:
or physical qualities and characteristics of an area that
contribute to people’s appreciation of its pleasantness, aesthetic
coherence, and cultural and recreational
33 Andreae v Selfridge Co Ltd  1 Ch 1.
The question of the meaning of reasonableness remains. It is a question of weighing up the relevant factors and, as said in Antrim, the focus “is on whether the interference is such that it would be unreasonable in all of the circumstances to require the claimant to suffer it without compensation”.34 The balancing exercise will not, however, be precise and inevitably involves judgment calls.
One of the traditional factors to take into account in the reasonableness analysis is the nature of the locality. However, this is precisely what St Helen’s ruled out where actual damage occurs.35 Under the unified approach of Antrim, presumably the locality will become relevant, but not decisive. This factor is far from being free of difficulty. Many of the leading cases give a mixed answer. St Helen’s itself involved both industrial and rural land – which do we pick? We should probably pick both, which may not take us very far at all. In Antrim, the area was rural but its precise nature was changed as a result of the new highway. This did not affect the outcome.
The decision of the United Kingdom Supreme Court in Fen Tigers has added to the thinking on this topic.36 In so doing it highlighted a further conundrum with the locality factor. The case concerned a classic nuisance situation:37 in 1975 the defendants obtained planning permission and built a stadium in a largely rural area. Later it added a motocross track. In 2006, the claimants moved to the area and bought a nearby house (it actually burnt down in 2010 but that is incidental). At first instance they obtained an injunction and damages for noise, lost in the Court of Appeal, but won again in the Supreme Court (with the rider that the defendants had the right to apply for damages in lieu of the injunction).
34 Antrim Truck Centre Ltd v Ontario
(Transportation) 2013 SCC 13,  1 SCR 594 at
35 St Helen’s Smelting Co v Tipping (1865) 11 HLC 642, 11 ER 1483 (HL).
36 Lawrence v Fen Tigers  UKSC 13,  1 AC 822 (sometimes referred to as Coventry v Lawrence). Note that the UK Supreme Court delivered a later judgment dealing with other issues including the liability of landlords and costs: Lawrence v Fen Tigers (No 2)  UKSC 46,  1 AC 106. See Stephen Todd “Tort”  NZ L Rev 513 at 518-522, David Howarth “Noise and Nuisance”  73 CLJ 247, Barry Allan “Coventry v Lawrence”  NZLJ 217, Quentin Davies and David Neild “Nuisance and Resource Management”  NZLJ 250 and Quentin Davies and David Neild “RMA and Nuisance: Postscript”  NZLJ 344.
37 It resonates with the often-cited New Zealand case of Bloodworth v Cormack  NZLR 1058 involving a speedway track located, however, in the quiet leafy suburb of Remuera, Auckland. An injunction was awarded. Callan J noted that “this is a mechanical age, in which motor-engines abound” (at 1062) but nevertheless the noise exceeded reasonable levels.
The issue was the endemic one of how to define the character of the neighbourhood or as Lord Neuberger preferred to put it “the established pattern of uses” in the locality.38 To describe the area simply as rural would unduly favour the claimants and not take account of the defendants’ established use for motor sports. However, to give too much weight to that use would unduly favour the defendants. The Judge acknowledged that we can go round in circles on the issue. Although Lord Carnwath decried the need for “an iterative process”,39 Lord Neuberger concluded that the defendants’ activities had to be included as part of the established pattern in the area, although they would be disregarded if they could not be carried on without causing a nuisance (ie it is not a nuisance unless it is a nuisance).40 Engaging in sports activities can almost certainly occur without being a nuisance, so we return to the fundamental question of whether the interference is reasonable or not – little further advanced in our endeavours.
An allied aspect of the locality factor is the so-called but potentially misleading “coming to the nuisance” argument. In Fen Tigers the claimants arrived on the scene well after the stadium and track had been built. Could they still complain? The conventional position is that “coming to the nuisance” is no defence, so long as the plaintiff has subsequently not elevated its activities in such a way as to create an actionable nuisance.
Fen Tigers in essence reaffirms the traditional rule that coming to the nuisance is no defence. The underlying rationale for this is that nuisance is a property tort and that rights such as a right to claim against a nuisance run with the land rather than with the person.41 This is no doubt correct, though a little odd: annoyance caused, for example, by noise from racing is largely a matter of personal attitude and taste. Some people will not be bothered by it while others will find it intensely intrusive. However, the test for a nuisance is the objective one of the reasonable person, not the subjective idiosyncrasies of the individual. Thus, we tend to talk about the effect on the use of property rather than the enjoyment of life in isolation.
On the other hand, Lord Neuberger added an important rider. The plaintiff may, in coming to the nuisance, have altered the use of the land for example by building a house on what was vacant land before. In so doing, the plaintiff cannot turn what was not a nuisance before into one following the change in use.42 According
38 Lawrence v Fen Tigers  UKSC
13,  1 AC 822 at .
39 Lawrence v Fen Tigers  UKSC 13,  1 AC 822 at .
40 Lawrence v Fen Tigers  UKSC 13,  1 AC 822 at .
41 An important part of the reasoning of the
majority of the House of Lords in Hunter v Canary Wharf Ltd  AC
42 Lawrence v Fen Tigers  UKSC 13,  1 AC 822 at .
to the judge, this rider applies only when “it affects the senses of those on the claimant’s land”, or in other words it does not apply where the activity causes actual harm. This is a return to the bifurcated approach discussed in the previous Part – an activity may be a nuisance in some circumstances and not in others, depending on its effect. Does it follow then that, if the plaintiff sets up a fox farm with supersensitive vixen that, it transpires, are affected by noise levels from a race track and cannot breed properly,43 the plaintiff can sue while the person next door who is simply annoyed by the noise levels cannot?
The judgment has another curious feature. Lord Neuberger rejects any suggestion that the rider could have applied to a couple of the leading cases on “coming to the nuisance”: Sturges v Bridgman44 and Miller v Jackson.45 The first was not really a “coming to the nuisance” case at all although it is often cited as such. The plaintiff doctor, who had occupied his site for some time, built a consulting room on his back garden hard up against the defendant’s business – the defendant had been there a very long time. Prior to the new construction we are told that there had been no nuisance but now there was through vibrations and noise from the defendant’s mortars affecting consultations with patients, and it was no answer that the defendant was there first. Lord Neuberger reasoned that the case was simply an extension of an existing use and affected more than the senses (the doctor’s income?) but could it not be argued that it was the transformation of the garden into a building used for a sensitive use – medical consultations – that led to the interference? The test should therefore have been whether the interference was one that the ordinary person would have regarded as unreasonable.
Miller v Jackson contains Lord Denning’s uncompromising defence of cricket, much revered by law students. The village cricket club was on the receiving end of a claim by a couple who moved right next to the field following the development of what had been rural land. They had come to the area and changed the use of the land. Lord Denning allowed a defence of “coming to the nuisance” but was in the minority in doing so (the Millers ultimately lost by not being granted an injunction). Lord Neuberger would not apply the rider to this case because it did not involve “damage to the senses” but “physical encroachment on, and potential physical damage to” the property.46 With respect, this explanation is thin. It relies on the bifurcated approach but illustrates the difficulties of that approach. The cricket club was in fact not contesting the actual damage and was paying for such
43 A variation on the theme in Hollywood
Silver Fox Farm Ltd v Emmett  2 KB
44 Sturges v Bridgman (1879) 11 Ch D 852.
45 Miller v Jackson  EWCA Civ 6;  1 QB 966.
46 Lawrence v Fen Tigers  UKSC 13,  1 AC 822 at .
things as broken windows. The nub of the case was whether the upset caused by cricket balls landing in the Millers’ property and requests by cricketers to collect the balls could be stopped by an injunction. In other words, it was the annoyance value of the cricket that was at stake. It was tied up with potential actual harm but this only underlines the problems with the bifurcated distinction. It also appears that Mrs Miller had a supersensitive and obsessive nature, arguably just like the vixen in the Fox Farm case.47 In the end, was this not a case where the problems really arose because of the change in land use by the developer (and subsequent homeowners) rather than cricket: those coming near to the cricket field changed the very nature of their land? Could Lord Neuberger’s analysis not have been more robust?
The other somewhat ironic twist to the issue
under discussion is that when judges are released from the constraints of
whether or not a cause of action exists their attitude changes when
it comes to remedies. In Miller, Cumming-Bruce LJ denied the couple an
injunction and one reason was that they bought a house on the boundary of a
field, in other words “they came to the nuisance” (he
accepted that there was liability). Subsequently in
v Thompson,48 the Court of Appeal, dealing with facts not unlike those in Fen Tigers but this time water sports on Mallam Water, parted company with Miller but nevertheless allowed itself to be influenced by the plaintiff’s knowledge of the activities on moving to the area when determining the terms of the injunction. In other words, “coming to the nuisance”, having been dealt a blow at the liability stage, resurfaces at the remedy stage. We shall see a similar phenomenon in Fen Tigers in due course.
4. PUBLIC INTEREST/SOCIAL UTILITY 4.1 The Public v Private Debate
One of the more controversial elements of the reasonableness analysis in nuisance is the place of the public interest. Sometimes it is simply assumed to be relevant. The community benefit of cricket swayed Lord Denning in Miller v Jackson, discussed in the preceding Part. Geoffrey Lane LJ, who disagreed with Lord Denning on most fronts, accepted that the rights of the individual and the rights of the public in general were to be balanced. However, in a case often held up in New Zealand
47 Hollywood Silver Fox Farm Ltd v Emmett
 2 KB 468. See above n 28.
48 Kennaway v Thompson  EWCA Civ 1;  1 QB 88.
as a leading authority, Bank of New Zealand v Greenwood,49 Hardie Boys J rejected any appeal to the public interest being put ahead of private interests. In that case the public interest was in the value of innovative building design: “I regret that authority requires me to close my ears to it”.50 He quoted from Shelfer v City of London Electric Lighting Company:51
... the circumstances that the wrong-doer is in some sense a public benefactor ... [has not] ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed.
One difficulty with the quotation is that it was about remedies and injunctions rather than liability. Another is that Shelfer has now been emasculated by the UK Supreme Court in Fen Tigers, already cited.52 However, the quote is in line with the view often expounded that the focus in nuisance is on the interference with the plaintiff’s enjoyment of property and not on the actions and motives of the defendant.
Somewhat in contrast, the Canadian courts have tended to be quite ready to factor in the public interest, although not without qualification. The public interest is not a trump card but something that goes into the mix along with other factors. In Antrim,53 it will be recalled that the plaintiff’s shop was harmed as a result of motorway development. As the case was about a claim for injurious affection under the relevant legislation, no question of an injunction ever arose but liability in nuisance was acutely at stake. To what extent then should the utility of the construction of a highway be taken into account? Cromwell J said that malice and carelessness may be significant, but were not in issue in Antrim. Likewise, acting without negligence, ie with reasonable care, may be relevant but is certainly not a defence in itself. Even taking extra steps as in Miller where cricket players were asked not to hit sixes or in Halsey, where the defendant oil company had “gone to great lengths to minimise ... causes of annoyance”,54 will not be enough despite the value of cricket and the necessity of having oil depots.
49 Bank of New Zealand v Greenwood
 NZHC 150;  1 NZLR 525.
50 Bank of New Zealand v Greenwood  NZHC 150;  1 NZLR 525 at 535.
51 Shelfer v City of London Electric
Lighting Company  1 Ch 287 at 316 (discussed further in this Part
52 Lawrence v Fen Tigers  UKSC 13,  1 AC 822.
53 Antrim Truck Centre Ltd v Ontario (Transportation) 2013 SCC 13,  1 SCR 594. See Part 2.
54 Halsey v Esso Petroleum Co Ltd  1 WLR 683 at 688.
According to Cromwell J in Antrim, “the utility of the defendant’s conduct is especially significant in claims against public authorities”,55 such as of course the provincial government in Ontario when constructing roads. However the severity of harm caused to the plaintiff may still outweigh the high degree of public utility of the defendant’s actions. It is not a matter of simply balancing acts of high public benefit with the harm to the plaintiff, because the former would inevitably weigh more. The many motorists would outnumber the claimant. Cromwell J summarised the position as follows:56
...in considering the reasonableness of an interference that arises from an activity that furthers the public good, the question is whether, in light of all of the circumstances, it is unreasonable to expect the claimant to bear the interference without compensation.
This still leaves open various questions such as what really is the public interest, what degree of utility is necessary, is it always clear that the public interest favours one side rather than the other or even both? It also still leaves open the question of how much weight the varying interests are to receive (that is, can one person’s enjoyment outweigh a public interest for the benefit of hundreds or thousands of others?).
This segues into reference to a vigorous academic debate about public versus private interests. A very fine recent contribution, though described by the author as “modest”, endeavours to improve the way in which interests external to the parties can be factored into the equation.57 Lee sets herself up against “fundamentalists” such as Beever, who has said, for instance, that “the law is not aimed at the realisation of social goals”.58 Lee argues that the courts do in fact take collective interests into account in private nuisance (a fortiori, one may add, in public nuisance) and that these interests are “both pervasive and influential”.59 Further, they “will not disappear, and suppressing their open discussion will mean that tort cannot be properly scrutinised and ultimately challenged”.60 On the other hand, she acknowledges the opaque nature of the public interest and thus the difficulty for courts and advocates to present a clear analysis of how it should fit into nuisance.
55 Antrim Truck Centre Ltd v Ontario
(Transportation) 2013 SCC 13,  1 SCR 594 at
56 Antrim Truck Centre Ltd v Ontario (Transportation) 2013 SCC 13,  1 SCR 594 at .
57 Maria Lee “The Public Interest in Private Nuisance: Collectives and Communities in Tort” (2015) 74 CLJ 329 at 354.
58 Beever, above n 14, at 7.
59 Lee, above n 57, at 330.
60 At 357-358.
One difficulty is that collective interests emerge in varying guises and may actually contradict each other. Take Halsey:61 the defendants could have raised the utility to Londoners of having petrol supplies so that transport needs would be met. At another level, the petrol depot that Esso ran provided work for people. This is a social good economically, psychologically and socially. On the other hand, Mr Halsey was fighting pollution – environmental harms through fumes, soot and noise among other things that probably today would also be noted as adding to climate change. What is more, Mr Halsey was, as Veale J put it, “the little man”62 taking on the big conglomerate, also a good because corporate power should, where necessary, be checked in the interests of consumers and all citizens. Take also Antrim: the scales appear to be tipped in favour of the benefits to motorists of improved roading systems, and yet the claimants had provided a necessary stopover for truck drivers needing food and a rest. Without this, risks of accidents would increase. The public interest is therefore not all one way traffic.
These problems are inherent in the reasonableness analysis itself. As we have seen, the locality or established uses of an area may well be mixed and contradictory. How easy is it to pitch these against items such as the severity, frequency and nature of the interference? Adding external interests to these internal ones makes the equation more complex but at least it is more comprehensive and not myopic.
4.2 Planning Permission
A particular but very important aspect of the public interest is the effect of planning permission or other regulatory decision-making, in New Zealand usually under the Resource Management Act 1991.63 The conventional position in New Zealand is that resource consent does not exclude the possibility of a nuisance claim.64 On the other hand, planning permission is prima facie the outcome of community processes that take account of the various competing interests in a proposed development. If this is so, then should the communal decision not outweigh any private disadvantage?
The issue arose in Fen Tigers.65 As noted by Lord Neuberger, the trial judge concluded that planning permission should not be taken into account, while the Court of Appeal held, in effect, that planning permission that relates to large
61 Halsey v Esso Petroleum Co Ltd
 1 WLR 683.
62 Halsey v Esso Petroleum Co Ltd  1 WLR 683 at 688.
63 See Antoinette Besier “Leaving it All
to the Resource Management Act 1991: The Demise of the Tort of Private
(2004) 35 VUWLR 563.
64 Ports of Auckland Ltd v Auckland City Council  1 NZLR 601 (HC).
65 Lawrence v Fen Tigers  UKSC 13,  1 AC 822, discussed elsewhere.
areas is decisive. Neither position was satisfactory. It would be wrong in principle to deprive a property owner of the right to object to a nuisance just because of planning permission but on the other hand a planning authority’s decision may well be of some relevance because of the inputs into the decision-making process. The question is what weight if any should be given to such a decision.
In relation to liability, Lords Neuberger, Sumption and Mance are somewhat sceptical of the value of planning permission, while Lords Carnwath and Clarke are rather less so. Lord Neuberger considered that a planning authority can be expected to balance various competing interests, but often these factors will be political and economic:66
...which properly may play a part in the thinking of the members of the planning authority, [but] would play no part in the assessment of whether a particular activity constitutes a nuisance – unless the law of nuisance is to be changed fairly radically.
While the terms of planning permission may on occasions be relevant, “in many cases they will be of little, or even no, evidential value, and in other cases rather more”.67 Lord Neuberger was “dubious” about relying on the reasons that planning officers gave during the decision-making process. Lord Sumption was blunter, considering planning permission to be “of very limited relevance, and whether there is a right of action in nuisance has to be decided by the courts regardless of any public interest engaged”.68 So we return to that classic debate about the collective versus the private interest. Lord Carnwath disagreed with Lord Neuberger’s scepticism over the value of planning officers’ reports, which are “likely to offer the most comprehensive summary of the relevant material”.69
Lord Carnwath did not see the issue as one where hard and fast rules can be laid down (as Lord Clarke put it70) but did see planning permission to be particularly useful in two situations: first, where a considered policy decision leads to a fundamental change in the pattern of uses, “which cannot sensibly be ignored in assessing the character of the area against which the acceptability of the defendant’s activity is to be judged”71 (“strategic cases”); and secondly, “[w] here the evidence shows that a set of conditions has been carefully designed to represent the authority’s view of a fair balance”, which could be adopted by the
parties and their experts “as a starting-point for their own consideration” (perhaps to be called “benchmark cases”).72 On the facts of Fen Tigers, planning permission fell into neither of these categories and thus the conditions attached to it were of little help.
In the end, the differences between the Fen Tigers judges’ positions may not be that great. The weight to be given to planning permission will vary depending on the facts of the cases, the nature of planning processes, and the detailed terms of any consent or permission. In broader terms, Maria Lee’s position may be a useful summary for those who would not exclude the public interest entirely:73
A turn to regulation to identify the collective interests that should have a voice in tort claims is both visible in the cases and defensible. Nevertheless ... the courts have good reason to be cautious about any automatic adoption of administrative standards ... it cannot be the case that any regulatory statement always identifies the public interest with sufficient authority to carry normative weight in tort.
The hesitations just discussed about the place of the public interest and planning permissions suddenly take a different turn when it comes to remedies. In Fen Tigers, the flip is most manifest.
The starting point in this discussion is the conventional position that a plaintiff who is faced with an ongoing nuisance will want it stopped and is usually entitled to an injunction.74 Damages may be awarded for actual loss and such things as inconvenience and annoyance,75 but often the nub of a nuisance case, in contrast to negligence, is obtaining a remedy to get the offending conduct stopped or the problem, such as branches and roots, dealt with.76 Despite this, under s 16A of the Judicature Act 1908,77 a court can award damages in addition to or in substitution for an injunction.78 These damages are sometimes called equitable
72 Lawrence v Fen Tigers  UKSC
13,  1 AC 822 at .
73 Lee, above n 57, at 350-351.
74 See, for example, Aennaway v Thompson
 EWCA Civ 1;  1 QB 88 and Bloodworth v Cormack  NZLR
75 See, for example, Halsey v Esso Petroleum Co Ltd  1 WLR 683.
76 See, for example, Blakesfield Ltd v Foote  NZHC 1325,  NZAR 1140.
77 Based on what was known in the United Kingdom as Lord Cairns’ Act. Section 16A will be included in a slightly re-drafted form when cl 12 of the Judicature Modernisation Bill is enacted.
78 See in general Mark Wilde “Nuisance Law and Damages in Lieu of an Injunction: Challenging the Orthodoxy of the Shelfer Criteria” in Stephen Pitel, Jason Neyers and Erika Chamberlain
damages and in effect are damages for future harm rather than past harm. Put cynically, “damages in lieu” are a way of buying the right to continue an unlawful act. Put more favourably, an injunction can be a “drastic” or “disproportionate remedy”79 because it has the potential to close an enterprise down and damages may be a sounder option.
On the face of it the discretion in s 16A looks broad. However, the leading authority before Fen Tigers was Shelfer.80 It took a very narrow view of when damages in lieu could be awarded. Its four-fold test, all parts of which had to be satisfied, was hard to meet: the injury to the plaintiff’s legal rights had to be small, capable of being estimated in money, adequately compensated by a small money payment, and granting an injunction had to be oppressive to the defendant. Fen Tigers does not totally overrule Shelfer because the satisfaction of the four criteria would still allow an award of damages. However, the failure to do so is no longer fatal. Lord Neuberger described the power as “a classic exercise of discretion, which should not, as a matter of principle, be fettered”.81 As part of the exercise of the discretion, the public interest and planning permission, the very items that caused so much bother at the liability stage of the argument, can be taken into account. The other judges agree with this reformulation of the law but Lord Sumption foreshadows a more radical line. Having been nervous about the place of the public interest and planning permission at the liability stage, he surmises that, when these factors are in play (that is, the case is not a pure neighbourly dispute where conflicting external interests are not engaged), damages should ordinarily be the remedy instead of an injunction.82 The other judges are reluctant to impose any kind of presumption in favour of damages – for much the same kinds of reasons already discussed about the variable nature of planning permission and the multi-faceted character of collective interests – but it does underline the significance of the change that the UK Supreme Court has made.
We do not know whether the New Zealand courts will follow Fen Tigers. The chances are that they will and this tends to be the view of commentators.83 Earlier precedents in fact speak with mixed voices on whether Shelfer is the last
(eds) Tort Law: Challenging Orthodoxy
(Hart Publishing, Oxford, 2013) 355.
79 Davies and Neild “Nuisance and resource management”, above n 36, at 252.
80 Shelfer v City of London Electric Lighting Company  1 Ch 287.
81 Lawrence v Fen Tigers  UKSC 13,  1 AC 822 at .
82 Lawrence v Fen Tigers  UKSC 13,  1 AC 822 at .
83 Todd, above n 36; Davies and Neild “Nuisance and resource management”, above n 36, at 253; Dion Blummont Damages in Lieu of an Injunction in New Zealand (research essay submitted for the LLB (Honours) degree at Victoria University of Wellington, 2015).
word,84 but the reasoning in Fen Tigers, so long as it is not taken to itself fetter the discretion (as Lord Sumption comes close to doing), has a compelling ring to it. One associated issue that divided the Fen Tigers judges was the basis upon which damages in lieu may be awarded. Is the plaintiff to be awarded damages representing only the loss or annoyance that the plaintiff will suffer or also a share in the profits that the defendant will enjoy by continuing the offending activity (“gain-based damages”)? This is a matter for subsequent cases but arguably, the plaintiff who misses out on the first prize of an injunction and has to put up with the nuisance should be treated “on a more generous basis”, as Lord Clarke put it.85
5. BLOCKING ACCESS
The Canadian Supreme Court decision in Antrim has already led us down several fertile pathways. A final feature of the case worth exploring is that the nuisance involved the construction of a highway making it a lot harder for drivers to access the claimant’s business. The Court did not hesitate to apply its twofold test and conclude that the interference was substantial and, despite the greater public good, was unreasonable.86 However, the complaint was not to do with anything like increased traffic noise or smells but with restricted access. To put the issue in conventional terms, nothing ‘emanated’ to cause the nuisance: the highway simply came into existence. The famous Hunter decision involved the construction of buildings as part of the development and regeneration of the Canary Wharf area of London.87 This affected access to television reception but, the House of Lords reasoned, a mere building cannot be a nuisance as nothing emanates from it or, as Lord Cooke put it, erecting a building is a perfectly reasonable use of land. Generally, something must emanate from the defendant’s land for there to be a nuisance. The word “generally” allows for rare exceptions, the one cited in Hunter being the rather anomalous case of Thompson-Schwab v Costaki,88 where it was
84 See, for example, Shelfer doubted in
Eaton v Dalgleish  NZGazLawRp 91;  NZLR 702 (HC) at 718 and Day v Black
(2004) 6 NZCPR 169 (HC) but upheld inter alia in Bank of New Zealand v
Greenwood  NZHC 150;  1 NZLR 525 (HC) (cited
85 Lawrence v Fen Tigers  UKSC 13,  1 AC 822 at .
86 Antrim Truck Centre Ltd v Ontario (Transportation) 2013 SCC 13,  1 SCR 594 at  .
87 Hunter v Canary Wharf Ltd  AC 655 (HL). Since this essay was written, a claim not unlike that in Antrim was denied in Western Australia on the basis that the interference was with the profitable conduct of the plaintiff’s business (sed quaere): Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia  WASC 42.
88 Thompson-Schwab v Costaki  1 WLR 335. Can we assume that this case survives the legalisation of prostitution in New Zealand under the Prostitution Reform Act 2003?
held that a brothel could be offensive enough in itself to be a nuisance. Obviously there is nothing similarly offensive about building a highway or redeveloping a run-down part of the metropolis. How then do we reconcile Hunter and Antrim?
In order to explore this question, we need to look at the fascinating case of Wu, which reached the New Zealand Supreme Court.89 The parties had been engaged for some time in litigation and issues arose about various meetings that need not detain us. In short, the case was about a building designed for student and other accommodation. Various investors could buy a unit title interest in individual rooms.90 Part of the deal was that the “body corporate” in which all unit title holders had an interest used a firm to manage the operations of the building (there was a change of firm that is not relevant for our purposes). The managers faced various problems such as vandalism and decided, inter alia, to change the electric locks. However, this process caused a major dispute with the plaintiff, Wu, and some others in the same position. New key cards were withheld both to their units and to the common areas, which provided access to the units and to various common facilities in the building. The common ownership of the body corporate meant that the unit holders had proprietary interests in these areas.
Mr Wu sued in nuisance and trespass, seeking damages for lost rent and the much smaller cost of installing internal room locks. Two issues arose: one was that changing the locks did not involve any “emanation” in the usual sense; and the other was that it appears (it was not actually certain) that the lock change occurred on site, thus on land that the plaintiff co-owned. The orthodox statement of the law of nuisance is that the conduct complained of must occur on the defendant’s land and not the plaintiff’s. On this point, Mahon J, in a controversial 1976 decision, held that an actionable nuisance could occur on the plaintiff’s own land.91
The plaintiff succeeded in nuisance before Asher J, who considered that it was not essential that the nuisance emanate from neighbouring land. The Court of Appeal upheld Asher J with the rider that, if the plaintiff owns the land where the nuisance arises, the plaintiff must not have exclusive control of it. On the facts, Wu did not have exclusive control of the common area. The Court of Appeal however raised significant doubts about the level of damages, querying whether
89 Wu v Body Corporate 366611 
NZSC 137,  1 NZLR 215; Body Corporate 366611 v Wu  NZCA 614,
 3 NZLR 522; Wu v Body Corporate 366611  NZHC 561;  2 NZLR 837
90 See the Unit Titles Act 2010, updating the original Unit Titles Act 1972.
91 Clearlite Holdings Ltd v Auckland City Corp  2 NZLR 729 (SC). See also Mahon J’s judgment in Paxhaven Holdings Ltd v Attorney-General  2 NZLR 185 and Robert Chambers “Nuisance – Judicial Attack on Orthodoxy”  NZLJ 172.
Wu, as an absentee investor, had actually suffered very much at all by way of access inconvenience. In the Supreme Court, the case took an unexpected twist. The Court found for the plaintiff in trespass, a cause of action that Asher J addressed briefly but did not rely on and that did not surface in the Court of Appeal. The basis for the trespass finding was that Wu, as a co-owner of the common property, had been unlawfully ousted or excluded from his land. This approach could not assist in the Antrim-type of situation nor where a person is unable to access their property by a blockage on the neighbour’s property. The trespass analysis thus works only in some situations and not others. Can nuisance nevertheless help in these other situations? The Supreme Court’s discussion of nuisance, ironically much longer than the five paragraphs on trespass, is obiter but persuasively suggests that the answer may be yes, although several “t”s were left uncrossed.
The Supreme Court considered nuisance under
two headings, one relating to use or enjoyment of land, and the other relating
over and in connection with a plaintiff’s land”. In
the Wu situation, liability could not arise under the first but was
likely to do so under the second. The Court’s statement of the
the use or enjoyment of land did not include reference to the bifurcated
approach discussed above in Part 2 and so nothing
turned on the financial loss
that Wu suffered. Apart from this, the Court’s statement of the law is
traditional. Nuisance requires
emanation from the defendant’s land,
meaning “a transposition of the alleged nuisance ... from the
property to the plaintiff’s
property”.92 Except for the rare
“offensive” cases such as the brothel case of
v Costaki, mentioned above,93 a lack of emanation will be fatal. Changing the electronic locks by reprogramming them was hardly offensive and involved no emanation. Thus, no matter how substantial and unreasonable the action may be, and no matter how the prevention of access affects the use and enjoyment of a person’s land, no liability can arise under this heading.
The second heading under which the Supreme Court considered potential liability is much more fertile and arguably the court pushes the boundaries beyond what might hitherto have been thought possible.94 Interference with rights to an easement or a profit à prendre can give rise to a nuisance claim. This also extends to what are sometimes awkwardly called “natural rights” associated with land. These may in some but certainly not all situations include a right of support.95
92 Wu v Body Corporate 366611 
NZSC 137,  1 NZLR 215 at .
93 Thompson-Schwab v Costaki  1 WLR 335.
94 Wu v Body Corporate 366611  NZSC 137,  1 NZLR 215 at - .
95 See for example Brouwers v Street  NZCA 463,  1 NZLR 645 (SC), leave to appeal refused by the Supreme Court in Street v Brouwers  NZSC 17.
Significantly, they also include “frontager rights”, ie the right of access to and from an adjacent public highway. The Supreme Court extended these rights to include access to a unit such as Wu’s, this access being a right implied under the Unit Titles Act. No emanation is required but, not unlike the two-fold test in Antrim, the interference would have to be substantial and unreasonable. Although the managers of the complex had reason to change the locks (vandalism etc), the way in which they went about this was unlawful, and the complete abrogation of Wu’s right of access to the common area, and hence access to his unit, looked substantial and unreasonable. Given its decision that the case could be resolved as one of trespass, the Court did not finally decide that a nuisance had occurred, but gave a very strong indication to that effect.
The Supreme Court’s judgment is based on rights arising under the Unit Titles Act. How far can this be extended? Some apartment buildings still eschew the unit titles system and are controlled by a company in which flat owners have shares. The analogy with unit titles is easy to see and it is surely possible to infer “natural” rights from the situation. What about an ordinary house or section where access is prevented? In most instances where this occurs, the breach of an easement is likely to provide an answer but what if no easement is involved? In principle, the interference is ostensibly substantial and unreasonable and should attract liability.96 What if access is partially but not totally blocked, as in Antrim? Seemingly with approval, the Supreme Court in Wu cited a passage from Winfield and Jolowicz in the context of access to the highway, where reference is made to preventing access “as opposed to making it less convenient”.97 Suppose Wu’s unit was on the top floor of the building in question and he was denied access to the lift but allowed to use the staircase, a far less convenient way of getting to the unit. Could Wu have succeeded? It is suggested in fairness that all these partial blockages should be capable of attracting liability in nuisance and that the test should be as in Antrim: is the blockage substantial enough and is it unreasonable? In some situations, the blockage may be temporary or may cause only minor inconvenience and thus not amount to an actionable nuisance. In others, however, it may make life very difficult for the plaintiff – for example, having to climb a dozen flights of steps instead of using the lift will be more than a tolerable inconvenience for many people who are not fit athletes.
96 When protesters blocked access to a construction site for the London Olympics, it was held that this was a private nuisance and probably a public one as well: Olympic Delivery Authority v Persons Unknown  EWHC 1012 (Ch).
97 Wu v Body Corporate 366611  NZSC 137;  1 NZLR 215 at  citing WVH Rogers Winfield and Jolowicz on Tort (18th ed, Thomson Reuters, London, 2010) at [14-39].
The Supreme Court in Wu points to a widening of liability in access situations but does not close off debate. The same is true of its consideration of the emanation requirement. As already noted, the Supreme Court generally requires emanation for most ordinary nuisance claims. The requirement has two aspects to it: (i) a “transposition” of the alleged nuisance, ie some sort of movement as opposed to something static; and (ii) caused by the use of the defendant’s land as opposed to arising on the plaintiff’s own land. Point (ii) by implication rules out the approach taken by Mahon J in Clearlite Holdings (discussed above) that a nuisance could arise on the plaintiff’s own land.98 However, where the nuisance involves easements, profits or “natural” rights, then the lack of emanation in either sense presents no problem: the changing of the electronic locks involved no “transposition” and it apparently occurred in the common area, which the plaintiff co-owned.
The emanation rule as reaffirmed in Wu therefore admits of exceptions but how many? The decision of Asher J in Outtrim v Li99 is worth examining. This involved a boundary dispute and the nuisance action was the subject of a counterclaim. The defendant was keen to sell but the plaintiff put up a sign warning would-be buyers off by referring to the dispute and using the phrase “buyer beware”. The defendant feared that the sign would affect the potential sale and counterclaimed. This failed but not because of a lack of emanation – the sign was simply there, it was not emitting anything, which might be true of a neon sign. Asher J accepted that there could be liability but held that the actions, while interfering with the enjoyment of land, were not unreasonable: the plaintiff’s actions were “intemperate” and “excessive” but not motivated by malice.100 Is this decision consistent with Wu? Arguably yes. Wu allowed rare exceptions to the emanation rule as in the brothel example of something that is so highly offensive as to amount to a nuisance. A sign may be so offensive as to fall within this exception. Nuisance law also makes exceptions where a party has acted with malice. Lord Cooke in his minority judgment in Hunter referred to the possibility of malice turning the erection of a building into a nuisance.101 In Outtrim v Li Asher J expressly denied that there was malice, but its presence could have changed the result. It is suggested that this would still be consistent with Wu.
98 Clearlite Holdings Ltd v Auckland City
Corp  2 NZLR 729 (SC).
99 Outtrim v Li  NZAR 292 (HC).
100 Outtrim v Li  NZAR 292 (HC) at .
101 Hunter v Canary Wharf Ltd  AC 655 (HL) at 721.
In the recent judgments considered above, have the courts clarified the law? Have they made it less obscure than Fleming, as quoted near the beginning of this essay, believed? Maybe a little.
The Canadian Supreme Court in Antrim has unified the underlying test by removing the distinction between cases involving actual harm and those involving interference with personal enjoyment. That distinction is ultimately elusive. Its removal simplifies some of the analysis but shifts the discussion to the central test of reasonableness. That test itself can be problematic, especially when we factor in the established uses of an area and the social utility of the parties’ activities. The United Kingdom Supreme Court in Fen Tigers wrestled with these issues, without radically redefining the law. The weight to be given to various factors when determining what is a reasonable use of land is, perhaps inevitably, murky. The significant change that Fen Tigers made was in liberalising the previously narrow grounds upon which damages can be awarded in lieu of an injunction. This, one may predict, will be followed in New Zealand.
Antrim and the New Zealand case of Wu dealt with nuisances caused by the blocking of access to property. Although it is obiter, the New Zealand Supreme Court’s judgment is surely highly persuasive from a precedent point of view. For most nuisance claims, it remains necessary to show some form of “emanation” from the defendant’s land to the plaintiff’s. In this respect, the Court was unadventurous. However, emanation is not required where the activity complained of interferes with easements, profits à prendre or natural rights. This is where the Court slotted in the Wu case - denial of key access to the common area and the plaintiff’s individual unit in an apartment building. While the case was based on rights flowing under the unit titles legislation, arguably it has much wider application than this. Herein lies potential for further development of the tort of nuisance.