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A room with a view in English nuisance law: exploring modernisation hidden within the ‘textbook tradition’
Published online by Cambridge University Press: 28 September 2018
Abstract
The paper critically examines the consensus among tort scholars that an injured view can never be actionable in nuisance. The consensus, it is argued, is based on a problematic understanding of the permanence of early modern nuisance authority, and a neglect of modernisation in the definition of actionable injury in the nineteenth century, in response to industrialisation, urbanisation and, crucially, suburbanisation. David Sugarman's ‘textbook tradition’ provides a valuable disciplinary explanation for the mismatch between scholarly portrayals of doctrine and authoritative judicial formulations in decided cases.
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- Copyright © The Society of Legal Scholars 2018
References
1 Buckley, RA Law of Nuisance (London: Butterworths, 1981) p 34Google Scholar. Similarly emphatic language can be found in more general tort texts, such as Keith Stanton's statement regarding nuisance that ‘loss of view … is the most obvious form of loss that is excluded’ (Stanton, K The Modern Law of Tort (London: Sweet and Maxwell, 1994) p 391Google Scholar).
2 National Archives, KB 27/1302 m 254 (Trinity 1587); Harvard Law School MS 16 fol 402, reproduced in Baker, J and Milsom, SFC (eds) Sources of English Legal History (Oxford: Oxford University Press, 1986) p 598Google Scholar.
3 (1865) 11 HL Cas 642.
4 Sugarman, D ‘Legal theory, the common law mind and the making of the textbook tradition’ in Twining, W (ed) Legal Theory and the Common Law (Oxford: Basil Blackwell, 1986) p 26Google Scholar. For a helpful overview of Sugarman's thesis, see Cownie, F ‘Are we witnessing the death of the textbook tradition’ (2006) 3 European Journal of Legal Education 79CrossRefGoogle Scholar and Twining, W Blackstone's Tower (London: Sweet and Maxwell, 1994) pp 135–137Google Scholar.
5 Sugarman, ibid, p 28. See too the distinction between lex lata (law as it is) and lex ferenda (law as it ought to be) in Fernandez, A and Dubber, M (eds) Law Books in Action: Essays on the Anglo-American Legal Treatise (Oxford: Hart, 2012) p 1Google Scholar.
6 Twining, above n 4.
7 The significance of the unreported status of this case is that judges may decline to accept submissions on points of law arising from it: Lord Chief Justice of England and Wales ‘Practice Direction: Citation of Authorities’ (2012) para 10, available at https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Practice+Directions/lcj-pract-dir-citation-authorities-2012.pdf). This is unlikely to be a problem with an iconic case like Bland.
8 (1851) 4 De G & Sm 315.
9 (1858) 140 ER 1113.
10 (1860) 122 ER 25.
11 Brenner, Notably J ‘Nuisance law and the industrial revolution’ (1974) 3 Journal of Legal Studies 403CrossRefGoogle Scholar (arguing that Lord Westbury sought to facilitate the industrialisation of towns and cities). For qualified support, see McLaren, J ‘Nuisance law and the industrial revolution: some lessons from social history’ (1983) 3 Oxford Journal of Legal Studies 155CrossRefGoogle Scholar and Pontin, B ‘Nuisance law and the industrial revolution: a reinterpretation of doctrine and institutional competence’ (2012) 75 Modern Law Review 1010CrossRefGoogle Scholar. For a broadly supportive judicial statement, see Lord Hoffmann in Hunter v Canary Wharf [1995] AC 665 at 705.
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13 [2004] ZAFSHC 97.
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‘What is a society worth living in? It is a society that values landscape, beauty and aesthetic considerations. If we undermine those, what on earth are we doing?’ (Hansard HL Deb, vol 702, col 763, 13 June 2008).
See further Holder, J ‘Law and landscape: the legal construction and protection of hedgerows’ (1999) 62 Modern Law Review 100CrossRefGoogle Scholar. By contrast, the concern in this paper is with private law.
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19 Ibid, Case No 305.
20 Ibid, Case No 312.
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25 See above n 2, as reproduced in Aldred's Case (1610) 9 Co Rep f57b, (1610) 77 ER 816 660.
26 Ibid. See further Monson, R et al. A Briefe Declaration For What Manner of Speciall Nusance Concerning Private Dwelling Houses (London: Holborne, 1639)Google Scholar.
27 Blackstone, W Commentaries on the Laws of England (Oxford: Oxford University Press, 1752) Book III, ch 3Google Scholar.
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29 On the importance of the landed elite to the development of the common law see Getzler, J ‘Theories of property and economic development (1996) 26 The Journal of Interdisciplinary History 639CrossRefGoogle Scholar. See in the context of nuisance law Pontin, above n 11, at 1011.
30 Creighton, OH ‘Seeing is believing: looking out on medieval castle landscapes’ (2011) 14 Concillium Medii Aevi 79Google Scholar.
31 Creighton, ibid, at 85.
32 Ibid, at 80.
33 Ibid, at 85.
34 ‘In the middle ages an elevated view over the landscape was something special and unusual, to be experienced by the privileged minority’ (ibid, at 80–81). According to Raymond Williams, the landed aristocracy lavished fortunes on landscape improvement, as an exemplar of ‘elevated sensibility’ which justified this rank's elite place within society (above n 24, p 121).
35 The position changed with the monster nuisances of the industrial revolution, which prompted the elite's reliance on nuisance law (Pontin, above n 11, at 1017–1018).
36 See generally Fraley, J ‘A new history of waste law: how a misunderstood doctrine shaped ideas about the transformation of law’ (2017) 100 Marquette Law Review 861Google Scholar. For cases dealing with landscapes, and indirectly views, see Packington v Layton (1744) 3 Atk 215; and Aston v Aston (1749) 1 Ves Sen 264.
37 Packington v Layton (1744) 3 Atk 215.
38 Aston v Aston (1749) 1 Ves Sen 264 at 266.
39 Fraley, above n 36, at 869 (emphasis added). The author cites Bewes, W The Law of Waste: A Treatise on the Rights and Liabilities which arise from the Relationship of Limited Owners and the Owners of the Inheritance with Reference to the Tenements (London: Sweet and Maxwell, 1894) p 9Google Scholar.
40 On the subtle distinction between ‘view’ and ‘landscape’, see Lee, M ‘Knowledge and landscape in wind energy planning’ (2017) 37 Legal Studies 3 at 8–10Google Scholar. Applied to waste law, this area of common law can be understood as focusing on the physical sub-dimension of landscapes rather than the ‘visual response’. This is returned to below (n 139 and associated text).
41 Above n 2.
42 Above n 11.
43 Tipping, above n 3, at 650. Brenner comments that this was ‘discriminatory’ against the urban proletariat (Brenner, above n 11, at 415).
44 Hunter, above n 11, at 705.
45 On the influence of the aristocracy in remedying industrial scale pollution in the countryside, see Pontin, above n 11.
46 R Epstein ‘Social consequences of common law rules’ (1982) Harvard LR 1717 at 1719.
47 Davidoff, L and Hall, C ‘The architecture of public and private life: English middle class society in a provincial town’ in Fraser, D and Sutcliffe, A (eds) The Pursuit of Urban History (London: Edward Arnold, 1983) p 327 at p 331Google Scholar. On the emergence of suburbia and its links to the bourgeoisie, see Cannadine, D Lords and Landlords: The Aristocracy and the Towns 1774–1967 (Leicester: Leicester University Pres, 1980)Google Scholar; Hoppen, K Theodore The Mid Victorian Generation: 1846–1886 (Oxford: Oxford University Press 2000) pp 334–336Google Scholar; and Davison, G ‘The suburban idea and its enemies’ (2013) 39 Journal of Urban History 829CrossRefGoogle Scholar.
48 Davison, ibid at 835.
49 Brenner, above n 11, at 409.
50 Above n 4.
51 Blackstone's Tower, above n 4, and Twining, W ‘Two works of Karl Llewellyn’ (1967) 30 Modern Law Review 514CrossRefGoogle Scholar.
52 Blackstone's Tower, above n 4, p 186.
53 Dicey, AV Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century (London: Macmillan, 2nd edn, 1905) p 258Google Scholar.
54 Pollock, F The Law of Torts (London: Stevens and Sons, 4th edn, 1895)Google Scholar. For an assessment of Professor Pollock's multifaceted contribution to legal scholarship, see Duxbury, N Frederick Pollock and the English Juristic Tradition (Oxford: Oxford University Press, 2004)CrossRefGoogle Scholar.
55 Pollock, above n 54, p vii. Pollock does not mention modernisers addressed in my analysis below, namely, Mr Justice Byles, Lord Westbury and grandfather Chief Baron Pollock.
56 The Law of Torts, above n 54, ch 10.
57 Above n 8 (Pollock cites this case in The Law of Torts, above n 54, p 366).
58 Walter, above n 8, cited in Pollock, above n 54.
59 Salmond, J The Law of Torts: A Treatise on the English Law of Civil Liability for Civil Injuries (London: Stevens and Hayes, 1907) p 185Google Scholar.
60 AWB Simpson ‘The Salmond lecture’ (2007) 38 VUULR 669 at 670.
61 Garrett, E and Garrett, H The Law of Nuisances (London: Butterworths, 3rd edn, 1908)Google Scholar.
62 Ibid, p 173.
63 On the growth of London suburbia in the nineteenth century, see Reeder, DA ‘A theatre of suburbs: some patterns of development in West London 1808–1911’ in Dyos, HJ (ed) The Study of Urban History (London: Edward Arnold, 1968) p 253Google Scholar.
64 Ibid, p 316. Surbiton, in Surrey, is described by one social historian as ‘the classic Victorian suburb’ (French, C ‘Who lived in suburbia? Surbiton in the second half of the nineteenth century’ (2007) 10 Family and Community History 93CrossRefGoogle Scholar).
65 Counsel stated that the ‘circumstances’ were similar to those in Walter (Hole, above n 9, at 1116).
66 Bamford, above n 10, at 26. On the suburban context, see J Coulter ‘Norwood: common land to city commuters’, August 2002 (Ideal Homes: A History of South East London Suburbs, available at http://www.ideal-homes.org.uk/case-studies/norwood).
67 Walter, above n 8, at 319.
68 Ibid.
69 Ibid, at 322 (emphasis added).
70 Pollock, above n 54, p 366.
71 Ibid.
72 As one leading present day commentator writes, ‘The classic private nuisance case focuses on interference with the amenity of property’ (Lee, M ‘What is private nuisance?’ (2003) 109 LQR 298Google Scholar).
73 On the censorial function of some of Pollock's writing, see Duxbury, above n 54, and Twining, Blackstone's Tower, above n 4, p 136. Fernandez and Dubber, above n 5, make the point that the authors of treatises mixed descriptive and normative exposition, sometimes without awareness of doing so.
74 S Waddams ‘Nineteenth-century treatises on contract law’ in Fernandez and Dubber, above n 5, p 127 at p 144.
75 Though Walter continues to be cited with approval, quotations from Knight Bruce's judgment omit any mention of injury being limited in terms of materiality and physicality. For instance, as well as the point made by Lee, above n 72, the requirement of physicality is omitted from Carnwath LJ's précis of Knight Bruce VC's speech in Barr v Biffa Waste Services Ltd [2012] 3 WLR 795 at 805, as requiring ‘real interference with the comfort or convenience of living, according to the standards of the average man’. On Pollock's mixed record of anticipating the future development of the common law, see Duxbury, above n 54, p 249 (‘Odd though it may seem, it is because [The Law of] Torts is so unswervingly focused upon principles that it has little legal relevance today; the law of tort has changed so much…’). This part of the paper addresses contemporary inaccuracies in Pollock's exposition.
76 Hole, above n 9, at 1113. For criticism see Brenner, above n 11, at 411, and McLaren, above n 11, at 172.
77 Pontin, above n 11.
78 Hole, above n 9, at 1114.
79 Bramwell B delivered a separate concurring speech alongside that of Williams J (Bamford, above n 10, at 32–33).
80 Bamford, above n 10, at 31.
81 Bamford, above n 10, at 30 (emphasis added).
82 Sir Frederick Pollock (1783–1870) was the grandfather of Sir Frederick Pollock, the common law scholar.
83 Bamford, above n 10, at 31.
84 Bamford, above n 10, at 28. On Pollock's modern style of legal reasoning, in response to social exigency, see JM Rigg ‘Sir (Jonathan) Frederick Pollock’ Oxford Dictionary of National Biography (2004). Pollock was ‘more concerned to achieve substantive justice in the instant case than to knit the strands of common law into a coherent pattern’.
85 Simpson, AWB Leading Cases in the Common Law (Oxford: Oxford University Press, 1995) pp 187–189Google Scholar.
86 R Cocks ‘Richard Bethell: first Baron Westbury (1800–1873), Lord Chancellor’ Oxford Dictionary of National Biography (2004), available at http://dx.doi.org/10.1093/ref:odnb/2305.
87 Simpson, above n 85, p 189.
88 Ibid.
89 Tipping, above n 3, at 650.
90 (1867) LR 3 Eq 409.
91 (1880–81) LR 6 App Cas 740, HL.
92 Ibid, at 820.
93 The Law of Torts, above n 54.
94 Lord Blackburn stated that a right to a view or prospect could not be acquired prescriptively. The reason is that a right to a view acquired through long user would ‘impose a burden on a very large and indefinite area’ (Angus, above n 91, at 824). This is cited in Hunter, above n 11, as a reason for excluding such injury from sounding in nuisance. However, it is respectfully submitted that the courts in a nuisance context have not shied away from enjoining defendants located many miles from the claimant (eg over a mile in Tipping, and eight miles in Attorney General v Birmingham (1858) 4 K & J 528). See further the references to large scale ‘inter-neighbourhood’ nuisances, Pontin, above n 11, at 1012.
95 Thompson Schwab v Costaki [1956] 1 WLR 335. This was followed in Laws and others v Florinplace Ltd (1981) 1 All ER 659
96 Thompson Schwab at 338.
97 Anon (1956) 72 LQR 315 (emphasis added).
98 Exeter County Court, 15 April 1992 (transcript on file with author). The claimant, Ian Cook, was an angler who was awarded by the court (per Cox J) £2500 damages for nuisance of a partly visual character.
99 Llangefni County Court, 21 June 1995 (transcript on file with author). The claimant, Huw Hughes, was Secretary of Seiont Gwyfai (an anglers’ society with riparian rights over Lyn Padarn). The claim alleged injury of a visual nature, but failed because the nuisance was held (per Daniel J) to be authorised by statute.
100 Above n 98.
101 Above n 99.
102 Fifoot, CJ History and Sources of the Common Law: Tort and Contract (London: Stevens and Sons, 1947) p 95Google Scholar.
103 Ness v Albert 665 SW2d 1 (1983).
104 Ibid.
105 Myrick v Peck Elec Co 2017 VT 4 (in respect of Woodstock Burying Ground Assoc'n v Hager 68 Vt 488, 35 A 431 (1896)).
106 Sowers v Forest Hills Subdivision 129 Nev Advance Opinion 9 (2013). The injunction was granted on the basis of a combination of noise nuisance, ‘flicker’, and aesthetic injury, but it was made clear that the latter alone would have been insufficient (‘aesthetics alone cannot form the basis of a private nuisance action’).
107 118 W Va 608, 191 SE 368 (1937). See similarly State ex rel Carter v Harper (1923) 182 Wis 148, 159, 196 NW 451, 455 (‘As a race, our sensibilities are becoming more refined and that which formerly did not offend cannot now be endured … nauseous smells have always come under the ban of the law, but ugly sights and discordant surroundings may be just as distressing to keener sensibilities’).
108 Ibid.
109 Allison v Smith 695 P2d, 791, 794 (1984).
110 Ibid.
111 Beginning with D Noel ‘Unaesthetic sights as nuisances’ (1939) 25 Cornell Law Quarterly 1, and including more recently Coletta, R ‘Case for aesthetic nuisance: rethinking traditional judicial attitudes’ (1987) 48 Ohio St LJ 141Google Scholar; Smith, G and Fernandez, G ‘The price of beauty: an economic approach to aesthetic nuisance’ (1991) 15 Harvard Environmental Law Review 53Google Scholar; Dodson, R ‘Rethinking private nuisance law: recognizing aesthetic nuisances in the new millennium’ (2002) 10 South Carolina Environmental Law Journal 1Google Scholar.
112 Above n 13.
113 Ibid, at 34.
114 Note further the allusions to aesthetic considerations in Pollock CB's speech in this case:
‘That may be a nuisance in Grosvenor Square which would be none in Smithfield Market, that may be a nuisance at midday which would not be so at midnight, that may be a nuisance which is permanent and continual which would be no nuisance if temporary or occasional only. A clock striking the hour, or a bell ringing for some domestic purpose, may be a nuisance, if unreasonably loud and discordant…’
An ‘unreasonably … discordant’ sound is palpably ‘aesthetic’. More subtle is the Dickensian juxtaposition of the picturesque and relatively modern residential development (Grosvenor Square), and the insalubrious medieval market district (Smithfield). See C Dickens Oliver Twist (Richard Bentley, 1838) ch 21 (of Smithfield it is written that a ‘hideous and discordant dim… resounded from every corner of the market; and the unwashed, unshaven, squalid, and dirty figures constantly running to and fro, and bursting in and out of the throng; rendered it a stunning and bewildering scene, which quite confounded the senses’).
115 Hunter, above n 11, at 686.
116 Hunter, above n 11, at 700.
117 Sowers, above n 95, 10.
118 For a leading English case of this form, see Bolton v Stone [1950] 1 KB 201 at 208 (per Jenkins LJ), and earliest of all Bamford, above n 10, at 66.
119 Above n 85.
120 Above, n 85, at 339.
121 Rodgers, WVH Winfield and Jolowicz on Tort (London: Sweet and Maxwell, 18th edn, 2010) p 713Google Scholar.
122 Hunter, above n 11, at 699.
123 [2009] EWCA Civ 1081.
124 Southwark LBC v Mills [2001] AC 1 at 20.
125 Hunter, above n 11, at 710: ‘It would be wrong to “create a new right of action” which involves “changing the principles of nuisance law”’.
126 Stringer v MHLG [1971] 1 All ER 65. See further S Crow ‘What price a room with a view? Public interest, private interests and the Human Rights Act’ [2001] JPEL 1349.
127 S Tromans ‘Planning and environmental law: uneasy bedfellows’ [2012] JPL OP73 (‘The planning system, unlike the law of nuisance, is not there to adjudicate between the competing interests of neighbours’).
128 Coventry v Lawrence [2014] UKSC 13 at [189].
129 Gillingham Borough Council v Medway Chatham Dock (1993) QB 343.
130 See eg Williams, G ‘Aims of the law of tort’ (1951) 4 Current Legal Problems 137CrossRefGoogle Scholar; Pontin, B ‘Tort interacting with regulatory law’ (2000) 51 Northern Ireland Legal Quarterly 597Google Scholar; Lee, M ‘Hunter v Canary Wharf (1997)’ in Mitchell, C and Mitchell, P (eds) Landmark Cases in the Law of Tort (Oxford: Hart, 2010) p 311Google Scholar.
131 Coventry, above n 128, at [124].
132 Ibid.
133 (1752) 2 Ves Sen 453.
134 Ibid, 453–454.
135 Hunter, above n 11, by Lord Lloyd (at 699) and (in the Court of Appeal) Pill LJ (at 668).
136 Above n 133 (emphasis added).
137 Ibid. In another of Lord Hardwicke's judgments relevant to views, Fishmongers’ Company Ltd v East India Company Ltd (1752) 21 ER 232, the claim was for prospective loss of commercial rental income as a consequence of the impact of the planned warehouse on light and prospect enjoyed by the claimant's commercial premises. The court accepted that the defendant's development might reduce to property's rental value, but that financial loss in these circumstances was not per se an actionable nuisance. For modern law on pure economic loss not being actionable in nuisance, see Rodgers, C ‘Liability for the release of GMOs into the environment: exploring the boundaries of nuisance’ (2003) 62 CLJ 371, 382CrossRefGoogle Scholar.
138 On the different types of expertise, and the relationship between ‘expertise’ and ‘knowledge’, see Lee, above n 40, 8011.
139 Ibid.
140 See also Cook, above n 98, Hughes, above n 99, and (in a US context) Allison, above n 109.
141 Cf above n 14.
142 Above n 7 and associated text.
143 Nor indeed within the civilian law tradition. A good recent illustration of a remedy for an injured view in French nuisance law is the case of Chateau de Flers, where the court found in favour of a neighbour who complained of the sight (and sound) of a wind farm. The turbines constituted what the court found to be a ‘degradation of the environment, resulting from a rupture of a bucolic landscape and countryside’ (Owners of Le Château de Flers v La Compagnie du Vent (Tribunal de Grande Instance, Montpellier, Le Figaro, 2 October 2013). For an historical perspective on the protection of an injured view in Roman law see Rodger, A Owners and Neighbours in Roman Law (Oxford: Clarendon Press, 1972)Google Scholar.
144 For a recent illustration based on an extensive empirical study of the tort of negligence, see Lewis, R ‘Tort tactics: an empirical study of personal injury litigation strategies’ (2017) 37 Legal Studies 162CrossRefGoogle Scholar.
145 See Fernandez and Dubber, above n 5, for the notion of law books in action to which my analysis seeks to add.
146 Legal academics of the late nineteenth and early twentieth century are thought to have had some success in influencing the development of the common law, with (for example) Pollock's Law of Torts inspiring Lord Macmillan's judgment in Donoghue v Stevenson [1932] AC 562 (see Duxbury, above n 54, pp 267–268). There are signs of a renewed (and more explicit) judicial engagement with academic tort law, notably in connection with nuisance. For example, Lord Carnwath in Coventry referred to two monographs (Beever, A The Law of Private Nuisance (Oxford: Hart, 2013)Google Scholar; Pontin, B Nuisance Law and Environmental Protection (Lawtext Publishing, 2013)Google Scholar), four research articles (M Lee ‘Tort law and regulation: planning and nuisance’ [2011] JPEL 988; M Lee ‘Nuisance law and regulation in the Court of Appeal’ [2013] JPEL 277; Rotherham, C ‘Gain-based relief in tort after A-G v Blake’ (2013) 126 LQR 102Google Scholar; and Wilde, M ‘Nuisance law and damages in lieu of an injunction’ in Pitel, S et al. (eds) Tort Law: Challenging the Orthodoxy (Oxford: Hart, 2013)Google Scholar), a tort textbook (Weir, T An Introduction to Tort Law (Oxford: Oxford University Press, 2nd edn, 2006)CrossRefGoogle Scholar), as well as the ‘practitioner text’ (Clerk and Lindsell on Torts (London: Sweet and Maxwell, 20th edn, 2010)Google Scholar).
147 See further Cownie, above n 4.