Common law environmental protection: the future of private nuisance, Part I

Abstract

Purpose – This article aims to assess the role of private nuisance as a common law tool for environmental protection, independent of the wider regulatory controls. It evaluates specific areas of the tort that are theoretically unresolved in order to ascertain the potential future role it may play before highlighting the capacity for injunctions to coerce restorative environmental justice. Design/methodology/approach – The paper is predominately a classic doctrinal article as it is principally library-based analysing both primary sources (that both pre- and post-date the modern law reporting system) and secondary sources whilst engaging in leading academic commentary. Findings – Nuisance developed to a point in the nineteenth century where a “theory of nuisance” emerged, which did not tolerate injury to health or the property of another. Recent judicial activity has visibly adulterated that theory: this article casts doubts on juridical restrictions regarding health and property suggesting they may not withstand the scrutiny of the Supreme Court if, and when, they are tested. Originality/value – This paper recognises that nuisance law has a positive future in environmental protection provided that the courts are willing to embrace the historical paradigm which has served the common law in this field broadly well for hundreds of years.