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Common law environmental protection: the future of private nuisance, Part II

Robert Charles Palmer (Bristol Law School, The University of the West of England, Bristol, UK)

International Journal of Law in the Built Environment

ISSN: 1756-1450

Article publication date: 8 April 2014

772

Abstract

Purpose

This article continues to assess the role of private nuisance as a common law tool for environmental protection, independent of the wider regulatory controls. It evaluates the decision in Cambridge Water and asks the question whether it would stand as good law before the Supreme Court. It concludes with illustrating the enduring role of the injunction in environmental protection and its capacity to coerce restorative environmental justice. The paper aims to discuss these issues.

Design/methodology/approach

The paper is predominately a classic doctrinal article as it is principally library-based analysing both primary sources (that both pre- and post-date the modern law reporting system) and secondary sources whilst engaging in leading academic commentary.

Findings

Nuisance developed to a point in the nineteenth-century where a simple form of the tort was visible. At that juncture, it had an “unchanged” essence that emanated from a strict liability reciprocal identity. Recent judicial activity has visibly adulterated that identity: this article casts doubts on juridical restrictions that assess the conduct of defendants to assess liability. It is suggested that it may not withstand the scrutiny of the Supreme Court if, and when, they are tested. In light of that analysis and considering the potency of injunctions, it is argued that nuisance law potentially has a positive future in environmental protection.

Research limitations/implications

Owing to the elected research approach, the scope of the article has been necessarily concentrated on succinct areas of a broader subject and viewed in a manner that works alongside the regulatory regime.

Originality/value

This paper recognises that nuisance law has a positive future in environmental protection especially if the courts are willing to embrace the historical paradigm which has served the common law in this field broadly well for hundreds of years.

Keywords

Acknowledgements

The author wishes to thank Dr Ben Pontin for his comments on a previous draft and peer reviewing the article prior to submission. The author would also like to acknowledge the University of the West of England for funding the PhD from which much of this research originated.

Citation

Charles Palmer, R. (2014), "Common law environmental protection: the future of private nuisance, Part II", International Journal of Law in the Built Environment, Vol. 6 No. 1/2, pp. 106-128. https://doi.org/10.1108/IJLBE-08-2013-0033

Publisher

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Emerald Group Publishing Limited

Copyright © 2014, Emerald Group Publishing Limited

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