The Law of Private Nuisance

It is said that a nuisance is an interference with the use and enjoyment of land. This definition is typically unhelpful. While a nuisance must fit this account, it is plain that not all such interferences are legal nuisances. Thus, analysis of this area of the law begins with a definition far too broad for its subject matter, forcing the analyst to find more or less arbitrary ways of cutting back on potential liability. Tort law is plagued by this kind of approach.

In the law of nuisance, today's preferred method of cutting back is to employ the notion of reasonableness. No one seems to know quite what 'reasonableness' means in this context, however. This is because, in fact, it does not mean anything. The notion is no more than the immediately recognisable symptom of our inadequate comprehension of the law.

This book expounds a new understanding of the law of nuisance, an understanding that presents the law in a coherent and systematic fashion. It advances a single, central suggestion: that the law of nuisance is the method that the common law utilises for prioritising property rights so that conflicts between uses of property can be resolved.

Auteur

Allan Beever is Professor of Law at Auckland University of Technology.

Contenu

1. Introduction
   I. General
   II. Outlook
   III. Scope
   IV. Use
   2 The Conventional View
   I. A Debate: A Comment on Style
   II. The View
   III. An Account of the Law
   IV. Two Specific Difficulties with the Conventional View
   V. Conclusion
   3 The Grounds of Liability
   I. Finding the Ground
   II. Examining the Ground
   III. The Structure of Analysis
   IV. The Case Law
   4 Illustrations of the General Principle
   I. The Rule of Give and Take, Live and Let Live
   II. The Location
   III. The Sensitivity of the Claimant
   IV. The Duration of the Interference
   V. Isolated Events
   5 The Activity
   I. The Description of the Parties' Activities
   II. The Malice Doctrine
   6 Coming to a Nuisance
   I. Bliss v Hall
   II. Sturges v Bridgman
   III. Miller v Jackson
   IV. Kennaway v Thompson
   V. Why 'Who Got There First?' Does Not Matter
   VI. Miller v Jackson Revisited
   7 A Nuisance Coming to You
   I. Three Views
   II. The Traditional Law
   III. The Slide to Negligence
   IV. Criticism of the Contemporary Approach
   V. An Alternative Approach
   VI. Revisiting the Case Law
   8 Fault and Foreseeability
   I. Introduction
   II. Fault, Negligence and Foreseeability
   III. Foreseeability and Nuisance
   IV. Justifying Strict Liability
   9 The Rule in Rylands v Fletcher
   I. The Relationship between Nuisance and Rylands v Fletcher
   II. The Place of Rylands v Fletcher in the Modern Law
   10 The Parties
   I. Standing: Who Can Sue?
   II. Identifying the Defendant: Who Can Be Sued?
   11 Statutory Authority
   12 Remedies
   I. Injunctions
   II. Remoteness
   13 Conclusion