Jason Neyers

RECONCEPTUALISING THE TORT OF PUBLIC NUISANCE

This article seeks to demonstrate three things. First, the orthodox conceptualisation of the tort of public nuisance is flawed, since: (1) it is in violation of basic private law principles related to privity and the actionability of crimes and (2) if taken seriously would mandate that the tort be abolished (as torts protect private not public rights). Second, the rights at the heart of the tort are the privately actionable rights to pass and repass on public highways and to fish in public waters, and that it is plausible that a sophisticated legal system would recognise such rights. Third, a tort reconceptualised in this way can make sense of: (1) the special damage rule that is generally thought arbitrary and (2) the general intuition that the recovery of damages for pure personal injuries is best left to other torts.

Lord Cooke of Thorndon's Final Appeal (Delaware Mansions Ltd v Westminster City Council)

In the recent case of Delaware Mansions Ltd v Westminster City Council,1 the House of Lords unanimously concluded that a plaintiff may recover in nuisance for preownership damage to its interest so long as the damages awarded are reasonably necessary to abate a continuing nuisance. While this conclusion is the logical culmination of the leading nuisance authorities, viewed from a broader perspective, the decision raises potential for conflict with the law as propounded in Murphy v Brentwood District Council,2 itself the logical culmination of the judicial re-examination of negligence in England.3 The litigation arose from damage to Delaware Mansions, an apartment complex consisting of 19 blocks divided into 167 flats. The damage was caused by the root system of a five-storey tall tree in the footpath in front of block 11. The footpath was owned by the defendant, Westminster City Council (Westminster). The plaintiffs were Delaware Mansions Ltd (Delaware), a management company owned by the residents of Delaware Mansions, and Flecksun Ltd (Flecksun), the freeholder of the property.4 During 1989, a year of drought, Delaware discovered cracking to the structure in blocks 9–12. Structural engineers retained by Delaware concluded that the   Oxford University Commonwealth Law Journal 265