Public Nuisance: Beyond Highway 61 Revisited?

  • John Pointing
  • Environmental Law Review, February 2011, SAGE Publications
  • DOI: 10.1350/enlr.2011.13.1.111

What is it about?

Recent decisions - including environmental disasters, such as the Buncefield refinery explosion - have suggested that the orthodox position on public nuisance is no longer sustainable. In this paper it is argued that conceptualising public nuisance as a property tort operating on a larger scale than private nuisance is mistaken. Public nuisance ought not to be seen as based on interferences with proprietorial rights, but as a separate tort from private nuisance. It is also questioned whether public nuisance should be seen as based on a precise and rational principle, as the House of Lords found in the case of Rimmington and Goldstein, or whether it can only be truly justified on the ground of pragmatism. The flexibility of public nuisance - both as a tort and as a crime - has been apparent over several centuries. The vague and ‘slippery’ quality of public nuisance raises the possibility of unfairness if used in preference to more focused statutory offences. It is argued, nevertheless, that it remains a useful cause in a civil action involving threats to the life, health, comfort and safety of the public, as well as an offence for egregious environmental crimes.

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The following have contributed to this page: Mr John Pointing