ABSTRACT
One meaning of the word ‘essence’ is the feature or set of features that defines a thing. My claim in this chapter is that the essence of the tort of private nuisance in this sense is interference with (or impairment of) the usability of the claimant’s land. Although this claim is merely a clarification of the orthodox definition or conception of the tort, the clarification turns out to be significant. Furthermore, while this central defining feature of private nuisance is well-established, it has been the subject of very little sustained analysis, and one of the aims of this chapter is to begin the task of plugging that gap. And finally, the orthodox conception of private nuisance has come under attack recently, and there is a danger that without a robust defense of it the coherence and utility of the tort will be compromised. In this chapter I seek to provide such a defense.
The chapter is divided into three main parts. In the first part, I show how orthodox it is to define private nuisance by reference to interference with the use and enjoyment of land, seek to clarify this defining idea as concerned with the abstract usability of the land, and consider the implications of this analysis for the scope of the private nuisance action. In the second part, I summarize and then critique a recent challenge to the orthodox conception of the tort, which I call the ‘physical invasion’ view. And in the final part, I briefly consider some of the implications for property theory of the orthodox conception of private nuisance, properly understood.
Nolan, Donal, The Essence of Private Nuisance (May 30, 2019) in Ben McFarlane and Sinéad Agnew (eds), Modern Studies in Property Law, Volume 10 (Hart 2019) 71–88.
First posted 2020-10-21 06:00:11
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