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Nuisance—Prevention or Payment?

Published online by Cambridge University Press:  16 January 2009

Stephen Tromans
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Nuisances come in many and varied forms: factories and playgrounds, boats and roots, bells and smells, to name but a few. By contrast, remedies for nuisance come in basically two forms; the injunction and damages. Despite this a person complaining of nuisance is far better off than a plaintiff in many other tort actions. This is because what is frequently complained of in nuisance actions is a continuing activity rather than a bygone act and therefore in addition to an award of damages there is the option of a remedy by way of an injunction forbidding continuance of the nuisance. In the past, judges have seized upon the injunction as the most effective way of protecting the plaintiff's property rights. However, in recent years there have been suggestions that the injunction may not always be the best remedy, when looked at from other than exclusively the plaintiff's perspective. Much of the criticism has come from American academics and has been founded largely upon economic analysis of the efficiency of the alternative remedies. There has been relatively little discussion of the problem by economists and lawyers in this country, with the notable exceptions of the excellent article by Ogus and Richardson, “Economics and the environment-a study of private nuisance ”

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The Cambridge Law Journal , Volume 41 , Issue 1 , April 1982 , pp. 87 - 109
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Copyright © Cambridge Law Journal and Contributors 1982

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References

1 See for example Shoreham-by-the-Sea Urban District Council v. Dolphin Canadian Proteins Ltd. (1972) 71 L.G.R. 261.Google Scholar

2 Dunton v. Dover District Council, The Times, 31 March 1977; (1978) 76 L.G.R. 87.

3 Kennaway v. Thompson [1980] 3 All E.R. 329.

4 See for example King v. Taylor (1976) 238 E.G. 265.

5 Soltau v. De Held (1851) 2 Sim.(N.s.) 133.

6 Bone v. Seale [1975] 1 All E.R. 787 and Milner v. Spencer (1976) 239 E.G. 573 are examples.

7 See for instance, Coase, , “The problem of social cost” (1960) 3 Journal of Law and Economics 1CrossRefGoogle Scholar; Michelman, “Pollution as a tort: a non-accidental perspective on Calabresi's costs ” (1971) 80 Yale L.J. 647; Calabresi and Melamed, “Property rules, liability rules and inalienability: one view of the cathedral” (1972) 85 Harv.L.R. 1089; , Ellickson, “ Alternatives to zoning: covenants, nuisance rules, and fines as land use controls” (1973) 40 University of Chicago Law Review 688; Hagman and Misczynski, Windfalls for Wipeouts (1978), Chap. 8. This list is by way of example only, and is not exhaustive.Google Scholar

8 [1977] C.L.J. 284; this valuable article deals not only with the remedies, but also treats much of the substantive law of nuisance from an economic angle.

9 Chap. 6 of The Economic Approach to Law, Burrows and Veljanovski (1981). See also Pearce, , “Property rights vs. Development Control: a preliminary evaluation of alternative planning policy instruments” (1981) 52 Town Planning Review 47.CrossRefGoogle Scholar

10 [1977] 3 AU E.R. 338.

9 Redland Bricks Ltd. v. Morris [1970] A.C. 652, 664.

12 Commentaries, Vol. l, p. 139.

13 Att.-Gen. v. Birmingham Corporation (1858) 4 K. & J. 528; Goldsmid v. Tunbridge Wells Improvement Commissioners (1866) L.R. 1 Ch.App. 349; Lillywhite v. Trimmer (1867) 36 L.J.Ch. 525; Chapman Morsons & Co. v. Guardians of the Auckland Union (1889) 23 Q.B.D. 294; Att.-Gen. v. Dorchester Corporation [1904–07] All E.R. 762; (1906) 94 L.T. 682; Earl of Harrington V. Corporation of Derby [1905] 1 Ch. 205; Jones v. Uanrwst Urban Council [1911] 1 Ch. 393.

14 Shoreham-by-Sea U.D.C. v. Dolphin Canadian Proteins Ltd. (1972) 71 L.G.R. 261. However, for more recent examples of local authorities as defendants, see: Haigh v. Deudraeth R.D.C. [1945] 2 All E.R. 661; Dunton v. Dover District Council (supra, n. 2); Page Motors Ltd. V. Epsom and Ewell Borough Council (1980) 78 L.G.R. 505. For an example of both a public body and a private enterprise being brought before the court together as defendants, see Pride of Derby and Derbyshire Angling Association Ltd. V. British Celanese Ltd. and others [1953] 1 All E.R. 179.

15 Final Report of the Trade Effluents Sub-Committee of the Central Water Advisory Committee (1960) M.H.L.G.

16 Supra, n. 14.

17 1 An attempt to obtain a stay of proceedings on the ground that such financial support was illegal as maintenance failed in Martell v. Consett Iron Co. Ltd. [1955] 1 All E.R. 481.

18 At para. 60.

19 At para. 173.

20 R.S.C. Ord. 29, r. 1 (4). Although this Order refers only to interlocutory injunctions, the equivalent section of the Supreme Court of Judicature Act 1873, s. 25 (8), was treated as applying a fortiori to final injunctions in Beddow v. Beddow (1878) 9 Ch.D. 89, 93, per Jessel M.R.

21 Halsey v. Esso Petroleum Co. Ltd. [1961] 2 All E.R. 145, 160, per Veale J. “an injunction is a discretionary remedy, but the discretion should be exercised in accordance with established principles.”

22 The Chancery Amendment Act 21 & 22 Viet. c. 27. See generally Jolowicz, “Damages in Equity-A Study of Lord Cairns' Act” [1975] C.L.J. 224.

23 The jurisdiction to award damages survived the repeal in 1883 of the Act: Leeds Industrial Co-operative Society v. Slack [1924] A.C. 851; Sampson v. Hodson-Pressinger [1981] 3 All E.R. 710, 715j; and has now been re-enacted by the Supreme Court Act 1981, s. 50.

24 Buckley, R.A., The Law of Nuisance (1981), pp. 131–132.Google Scholar

25 25 For example, Lord Halsbury in Shelfer's case [1895] 1 Ch. 287, 311 said that Lord Cairns' Act gave jurisdiction to award damages but did not interfere with the settled principles upon which equity interfered in the past. See also Aynesley v. Glover (1874) 18 Eq.Cas. 544, per Jessel M.R. at p. 555.

26 [1895] 1 Ch. 287.

27 At p.322.

28 (1877) 5 Ch.D. 769.

29 At p. 774. See also Wood v. Conway Corpn. [1914] 2 Ch. 47 and Halsey v. Esso Petroleum Co. Ltd. [1961] 2 All E.R. 145 (evidence of loss of profit which would be caused if night shift of oil depot closed by injunction).

30 (1858) 4 K. & J. 528. It is perhaps ironic that the case was decided in the same year that Lord Cairns'; Act came into force. Although the case preceded the Act (the case was decided in July and the Act came into force on 1 November) and thus cannot strictly be regarded as authority on the statutory discretion, it illustrates sharply the courts' attitude to arguments based on public benefit in this area. This case and others like it shaped the conditions laid down in Shelter's case.

31 At p. 536.

32 Compare also Raphael v. Thames Valley Railway Co. (1867) L.R. 2 Ch.App. 147 (Lord Chancellor reversing decision of the Master of the Rolls at (1866) L.R. 2 Eq.Cas. 37, where public benefit taken into account in action for specific performance). Likewise the courts look with disfavour on attempts to raise public benefit as a defence to the crime of public nuisance: R. v. Ward [1835–42] All E.R.(Rep.) 664, 668C-D, per Lord Denman.

32 [1981] 1 All E.R. 353.

33 , Spry, Equitable Remedies, 2nd ed. (1980), p. 375.Google Scholar

34 Buckley, loc. cit., at p. 122. The case of Lillywhite v. Trimmer (1867) 36 L.J. Ch. 525 can be read as authority that “great and important public objects are not wholly to be overlooked ” (per Malins V.-C. at p. 528) but the case seems to turn on a finding of fact that there was no real injury to the plaintiff and indeed the state of his property was in a great measure due to his own neglect. According to Shelfer's case, not only must the injury to the plaintiff's rights be small, but it must also be capable of being estimated in money. This obviously causes difficulty in cases of nuisance of the “ amenity-loss” type (infra, p. 100).

35 [1981] 1 All E.R. 353.

36 [1981] C.L.J. 226, 229.

37 L.T. 27B; Armstrong v.. Sheppard & Short Ltd. [1959] 2 All E.R. 651. Compare, W. Peabody & Co. [1946] 2 All E.R. 192. In at least one case it has been so applied less than willingly: Jordeson v. Sulton, Southcoates & Dry pool Gas Co.[1899] 2 Ch. 217, 258–259, per Vaughan Williams L.J.

38 Isenberg v. East India Estate Co. (1863) 3 De GJ. & S. 263; Jacomb v. Knight (1863) 3 De G.J. & S. 533; Stokes v. City Offices Co. Ltd. (1865) 13 L.T.(N.S.) 81; Viscountess Gort v. Clark (1868) 16 W.R. 569 (“the question as to noise and vibration rests on a different footing,” per Wood L.J. at p. 569); Bowes v. Law (1870) L.R. 9 Eq. 636; Aynesley v. Glover (1874) 18 Eq.Cas. 544; National Provincial Plate Glass Insurance Co. V. Prudential Assurance Co. (1877) 6 Ch.D. 757; Gaskin v. Balls (1879) 13 Ch.D. 324; Colls v. Home & Colonial Stores Ltd. [1904–07] All E.R. 5; Sharp v. Harrison [1922] 1 Ch. 502; Price v. Hilditch [1930] 1 Ch. 500. Similar considerations apply to the infringement of easements (Bracewell v. Appleby [1975] 2 W.L.R. 282) and restrictive covenants (Wrotham Park Estate Co. Ltd. v. Parkside Homes Ltd. [1974] 1 W.L.R. 798).

39 Leader v. Moody (1875) L.R. 20 Eq.Cas. 145; Liandudno U.D.C. v. Woods [1899] 2 Ch. 705; Behrens v. Richards [1905] 2 Ch. 614; Rileys v. Halifax Corpn. (1907) 97 L.T. 278; Armstrong v. Sheppard & Short Ltd. [1959] 2 All E.R. 651. Compare, however, Kelsen v. Imperial Tobacco Co. Ltd. [1957] 2 All E.R. 343 and Woolerton & Wilson Ltd. V. Richard Costain Ltd. [1970] 1 All E.R. 483.

40 King v. Taylor (1976) 238 E.G. 265, Bunclark v. Hertfordshire County Council (1977)243 E.G. 381,455.

41 John Young & Co. V. The Bankier Distillery Co. [1893] A.C. 691.

42 One example is Chapman Morsons & Co. V. Guardians of the Auckland Union (1889) 23 Q.B.D. 294 (nuisance only occurred in exceptional circumstances). In Halsey v. Esso Petroleum Co. Ltd. [1961] 2 All E.R. 145, 160, Shelter's case was applied to deny an injunction in respect of one aspect of the nuisance, smuts.

43 See for instance: Pennington v. Brinsop Hall Coal Company (1877) 5 Ch.D. 769 (suspended for three months on undertaking to indemnify for loss in the interim); Leeman v. Montagu [1936] 2 All E.R. 1677 (suspended for one month); Pride of Derby Case [1953] 1 All E.R. 179 (suspended for two years); Halsey v. Esso Petroleum Co. Ltd. [1961] 2 All E.R. 145 (suspended for six weeks); Shoreham U.D.C. v. Dolphin Canadian Proteins Ltd. (1972) 71 L.G.R. 261 (suspended for six months; extended to nine months on undertakings by defendant company).

44 Att.-Gen. v. Birmingham Corporation (1858) 4 K. & J. 528, n. 30, supra.

45 [1945] 2 All E.R. 661.

46 Compare Great Central Railway Co. v. Doncaster R.D.C. (1917) 118 L.T. 19 (suspended until six months from the end of the war). In the Pride of Derby case, Denning L.J. said that questions of public inconvenience were “strong reasons for suspending the injunction” : [1953] 1 All E.R. 179, 204.

47 (1973) 71 L.G.R. 261. Compare Spokes v. Banbury Board of Health (1865) L.R. 1 Eq. 42.

48 At p. 271.

49 E.g., Vanderpant v. Mayjair Hotel Co. Ltd. [1930] 1 Ch. 138 (injunction restraining noise of departure and arrival of hotel staff between 10 p.m. and 8 a.m.); Halsey v. Esso Petroleum Co. Ltd. [1961] 2 All E.R. 145 (restraining operation of depot between 10 p.m. and 6 a.m.).

50 The Times, 31 March 1977; (1978) 76 L.G.R. 87.

51 The hours had originally been 12.30–6.30 p.m.

52 [1980] 3 All E.R. 329.

53 At p. 333.

54 But cf. Halsey v. Esso Petroleum Co. Ltd., supra, n. 49.

55 [1977] 3 All E.R. 338.

56 This argument is contrary to Sturges v. Bridgman (1879) 11 Ch.D. 852, which Lord Denning dismissed as turning “ on the old law about easements and prescriptions and so forth ” (p. 344). However, Lord Denning was in the minority on that point, and there are good reasons for the rule that coming to the nuisance is no defence; see Buckley, loc. cit., at p. 98.

57 At p. 345.

58 He relied strongly on the decision of Romilly M.R. in Raphael v. Thames Valley Railway Co. (1866) L.R. 2 Eq. 37, apparently without realising it had been overruled (see n. 32, supra).

59 [1977] C.L.J. 284, 310.

60 [1980] 3 All E.R. 329.

61 Supra, p. 94.

62 [1980] 3 All E.R. 329, 332.

63 At p. 333. Why it is not binding is not clear: the majority refused an injunction, Lord Denning and Cumming-Bruce L.J. only disagreeing on the question of coming to the nuisance as a defence. Lawton L.J. also said that Lord Denning's reason for refusing an injunction was contrary to that of Cumming-Bruce L.J. which was based on the fact that the plaintiffs had bought their house knowing that it was perilously close to the cricket ground. In fact Cumming-Bruce L.J. also treated the public interest as relevant (see [1977] 3 All E.R. 338, 350, 351). If the case is not binding, it can only be because it conflicts with Shelfer as another Court of Appeal decision and falls within the first exception of Lord Greene M.R. in Young v. Bristol Aeroplane Co. Ltd. [1944] 2 All E.R. 293, 300.

64 [1981] 3 All E.R. 710. Noted supra, p. 38.

65 On the principle of Harris v. James (1876) 45 L.J.Q.B. 545, distinguishing Rich v. Basterfield (1847) 4 C.B. 783.

66 [1981] 3 All E.R. 710, 715a-b.

67 At p. 715b-c.

68 E.g., Whalen v. Union Bag and Paper Co., 208N.Y. 1 (1913) (injunction against $1 million pulp mill obtained by riparian owners suffering only small loss).Google Scholar

69 Northern Indiana Public Service Co. v. W. J. & M. S. Vesey (1936) 210 Ind. 338; 200 N.E. 620 (gases and ammonia smoke); City of Amarillo v. Ware 120 Tex. 456; 40 S.W.2d 57 (1931) (overflows from storm sewers).

70 26 N.Y.2d 219; 257 N.E.2d 870 (1970).

70 Spur Industries Inc. v. Del E. Webb Developments Co., 108 Ariz. 178 (1972).

72 Burrows and Veljanovski, loc. cit., at p. 161, criticise the position which they refer to as “ victim liability ” as unjust, though in some circumstances efficient. However, it is strongly arguable that the case is not authority for any general proposition, but is confined to the case of a “ victim” who moves into a previously industrial area and then seeks to enjoin a previously lawful activity. In this context it may be seen as an alternative solution to the Sturges v. Bridgman type of case.

73 [1935] 2 D.L.R. 699. See also Black v. Canadian Copper Co. (1917) 12 O.W.N. 243 affirmed (1920) 17 O.W.N. 399 and Canada Paper Co. v. Brown (1922) 66 D.L.R. 287, esp. Duff J. at 292–293.

74 At p. 700.

75 McKinnon Industries v. Walker [1951] 3 D.L.R. 577; Walker v. Pioneer Construction Co. {1917) Ltd. [1975] 56 D.L.R.3d. 677; Segal v. Derrick Golf & Winter Club [1977] 4 W.W.R. 101. For an older example, see Duchman v. Oakland Dairy Co. Ltd. (1928) 63 O.L.R. 111.

76 (1966) 55 W.W.R. 557.

77 Munroe v. Southern Dairies [1955] V.L.R. 332 (injunction against keeping of horses used to draw milk floats despite evidence that delivery by horse was the most suitable and economic method; Supreme Court of Victoria).

78 [1948] Ir.R. 61.

79 “ I am afraid that I cannot attach very much importance to the effect of this injunction upon the public convenience. It is a dispute between parties and concerned only with the rights of those parties,” per Maguire C.J. at p. 64; “ I do not think that we are entitled to deprive Mr. Bellew of his legal rights on some idea of public convenience,” per Munaghan J. at p. 65.

80 In Allen v. Gulf Oil Refining Ltd. [1981] 1 All E.R. 353 (infra, p. 107) there were 53 actions against the defendant.

81 Administration of Justice Act 1977, s. 14, inserting s. 51A of the County Courts Act 1959. The action in Sampson v. Hodson-Pressinger [1981] 3 All E.R. 710 (supra n. 23) originated in the county court.

82 (1977) 243 E.G. 381,455.

83 [1975] 1 All E.R. 787. Compare Milner v. Spencer (1976) 239 E.G. 573.

84 Perhaps the problem could have been avoided entirely by certain drastic measures. See The Guardian, 11 August 1981, p. 1.

85 Miller v. Jackson [1977] 3 All E.R. 338 (award of £400 general damages to cover past and future); Kennaway v. Thompson [1980] 3 All E.R. 329 (award by first instance judge of £1,000 for past nuisance, £15,000 for future—£1,000 award upheld by Court of Appeal); Sampson v. Hodson-Pressinger [1981] 3 All E.R. 710 (£2,000 for future nuisance).

86 E.g., Jarvis v. Swans Tours Ltd. [1973] 1 All E.R. 71; Jackson V. Horizon Holidays Lid. [1975] 3 All E.R. 92; Heywood v. Wellers [1976] 1 All E.R. 300; Ichard v. Frangoulis [1977] 2 All E.R. 461.

87 All references from (1981) 21 R.V.R.: Glynn v. Wicks, p. 9 (“ Problem people next door”); Shadlock v. Huggins, p. 10 (“Atmospheric pollution from lead works”); Poultney v. Hill, p. 14 (“Flat in building being converted”); Curtis v. Maudling, p. 68 (“ Donkey braying at night ”); Nicholls v. Brown, p. 203 (“ Vibrations caused by lorries on repaired road”); Pearton v. Dewar, p. 259 (“House near Brands Hatch”); Knott v. Freeman, p. 258 (“Tip causing ‘ Biblical plague of crickets’”). The test is that of the hypothetical landlord and tenant used in Bunclark v. Hertfordshire County Council, n. 82 supra.

88 Where the need is great enough they have been prepared to stick their necks out: Haigh v. Deudraeth R.D.C. [1945] 2 All E.R. 661 (injunction suspended due to wartime conditions—apportionable sum at the rate of £25 per annum awarded until nuisance abated).

89 See Dreyfus v. Peruvian Guano Co. (1890) 43 Ch.D. 316 and Wood v. Conway Corp. [1914] 2 Ch. 47, 57.

90 Leeds Industrial Co-operative Society v. Slack [1924] A.C. 851 and Jolowicz, he. cit. [1975] C.L.J. 224.

91 The cases where this argument has been raised and has succeeded are innumerable, but examples are: Shelfer's case [1895] 1 Ch. 287, 311, 315, 316; Colwell v. St. Pancras Borough Council [1904] 1 Ch. 707, 712; Halsey v. Esso Petroleum Co. Ltd. [1961] 2 All E.R. 145. See also Armer Report (1960) M.H.L.G., paras. 162 and 173, and the Report of the Committee on Salmon and Freshwater Fisheries (1961) H.M.S.O. 1350, para. 158.

92 See Att.-Gen. v. Birmingham Corpn. (1858) 4 K. & J. 528, 539 and Shelfer's case [1895] 1 Ch. 287, 316.

93 While this argument does not appear to have succeeded in any English case, it certainly seemed to impress Duff J. in Canada Paper Co. v. Brown (1922) 66 D.L.R. 287, 292–293, cited with approval by McDonnell J.A. in Bottom v. Ontario Leaf Tobacco Co. [1935] 2 D.L.R. 699, 701.

94 See for instance, the recommendations of the Law Commission on “ Rights of access to neighbouring land,” Working Paper No. 78, August 1981, paras. 3.8 and 5.15. The assumption is always implicit, though not always expressed, in the law on statutory authorisation as a defence, infra, pp. 101–108.

95 In the field of real property rights see the Rent Acts, s. 84 of the Law of Property Act 1925, the Leasehold Reform Act 1967, and the legislation on planning and compulsory purchase. For a parallel in contract, see the Unfair Contract Terms Act 197.

96 E.g., R. v. Ward [1835–42] All E.R.(Rep.) 664, 668 per Lord Denman, Krehl v. Burrell (1877–78) 7 Ch.D. 551, 554. See also the Armer Report (1960) MHLG 173 and Markesinis and Tettenborn (1981) 131 N.L.J. 108. Echoes of Naboth's vineyard abound (see 1 Kings 21; 1–16).

97 [1953] 1 All E.R. 179.

98 See Boomer v. Atlantic Cement Co. (1970) 26 N.Y.2d. 219, 226, per Bergan, J.; Shoreham U.D.C. v. Dolphin Canadian Proteins Ltd. (1972) 71 L.G.R. 261.Google Scholar

99 At p. 93.

1 See n. 7 above. Ogus and Richardson, and Burrows provide excellent summaries of the various arguments. Efficiency may be defined as that state where the benefits from the nuisance exceed its costs, and where the costs of abatement are such that the benefits from abatement would be outweighed by the cost.

2 (1960) 3 Journal of Law and Economics 1.Google Scholar

3 Ogus and Richardson [1977] C.L.J. 284; Burrows and Veljanovski, loc. cit., at pp. 151, 155, 156.

4 Loc. cit., at p. 164. See also Markesinis and Tettenborn (1981) 131 N.L.J. 108.

5 See Pearce, loc. cit. (1981) 52 Town Planning Review 47.

6 See Bennett, , “Pollution Control in England and Wales” (1972) 5 Environmental Policy and Law 93, 190.CrossRefGoogle Scholar

7 One criticism of the injunction in evidence presented to the Armer Commission by the British Iron and Steel Federation was that the practice of seeking injunctions was rendering uncertain the public system of control by by-laws: Armer Report, paras. 151–156.

8 See Michelman, Calabresi and Melamed, Ellickson, and Hagman and Misczynski, all n. 7, supra.

9 Calabresi and Melamed, loc. cit.

10 See Michelman at pp. 669–670; Ellickson at pp. 720, 739; Calabresi and Melamed at pp. 1119–20; Hagman and Misczynski at p. 173.

11 See Burrows, loc. cit., and Ogus and Richardson at pp. 292, 314–317.

12 Armer Report, para. 164.

13 For a convincing example, see the reservation of two members of the Armer Committee, paras. 3, 4, where Luton Corporation had to pay £86,500 to acquire riparian rights in order to be able to operate their sewage works: “in a number of cases the right to an injunction has resulted in the expenditure of very large sums of money, much of it public, to preserve private rights of relatively small value.”

14 Bamford v. Turnley (1862) 3 B. & S. 67, 85 per Martin B. Cf. Lord Denning in Allen v. Gulf Oil Ltd. [1979] 3 All E.R. 1008, 1016.

15 Bove v. Donner-Hanna Coke Corp. (1932) 236 App.Div. 37; 258 N.Y.S. 229 (defence of coming to the nuisance used to avoid closing manufactory in the depression).

16 (1970) 26 N.Y. 2d 219; 257 N.E. 2d 870.

17 See Buckley, loc. cit., and cases cited therein.

18 [1891] 2 Ch. 409.

19 At p. 413.

20 As in Andreae v. Selfridge & Co. Ltd. [1938] Ch. 1.

21 [1972] 3 All E.R. 645.

22 At p. 650.

23 Merritt [1973] J.P.L. 154. It may also need reconsideration in the light of Page Motors Ltd. v. Epsom & Ewell B.C. (1980) 78 L.G.R. 505.

24 Sturges v. Bridgman (1879) 11 Ch.D. 852, n. 56 supra.

25 [1977] 3 All E.R. 338, p. 95, supra.

26 [1979] 3 All E.R. 1008 (Court of Appeal); [1981] 1 All E.R. 353 (House of Lords). See p. 92, supra, and Jolowicz [1981] C.L.J. 226.

27 At p. 358, per Lord Wilberforce.

28 At p. 359, per Lord Edmund-Davies; see also p. 363, per Lord Keith.

29 At p. 363.

30 See Lord Denning M.R. at pp. 1014–1016, Cumming-Bruce L.J. at pp. 1023–1024. Especially compelling is the argument of Lord Denning that to grant statutory immunity is to take away completely the right to compensation in the absence of negligence (pp. 1012, 1016). If the defendant had sought to include the power to operate the refinery in the statute, parliament might have insisted on provisions for compensation being inserted (per Lord Keith at p. 363).

31 Beginning with Hammersmith Railway Co. v. Brand (1869) L.R. 4 H.L. 171. For a penetrating and perceptive analysis of the flaws in the technique, see , Davies, The Law of Compulsory Purchase and Compensation 3rd ed., p. 181, n. 8. Many of the comments on Allen v. Gulf Oil apply equally to the case of Smeaton v. llford Corpn. [1954] 1 All E.R. 923, which it is instructive to compare.Google Scholar

32 At p. 357. See also Lord Roskill at p. 365.

33 [1979] 3 All E.R. 1008, 1016. Jolowicz at [1981] C.LJ. 228–229 reaches the same conclusion.

34 8 & 9 Vict. c. 18, Halsbury's Statutes, Vol. 6, p. 9.

35 1973, c. 26, Halsbury's Statutes, Vol. 43, p. 170.

36 See Davies, loc. cit., Chap. 9 for a review.

37 See Bamford v. Turnley (1862) 3 B. & S. 67, 85–86, per Martin B.

38 Miller v. Jackson [1977[ 3 All E.R. 338, 345.