Nuisance

Abstract

With the exceptions of defamation and privacy, private nuisance is probably the area of tort law in which the HRA has had the most influence so far. One of the notable aspects of the relationship between nuisance law and the HRA has been the co-existence of both the ‘vertical’ and the ‘horizontal’ effect of the HRA in this context, so that in the case law we can find examples of claimants bringing common law nuisance actions against public authorities alongside direct actions under the HRA, and examples of cases in which it has been argued that the nuisance analysis may itself be affected by human rights considerations. The purpose of this chapter is to explore all these different aspects of the relationship between nuisance and the HRA. The chapter is divided into three main parts. In the first part, I consider the ‘vertical effect’ of the HRA in environmental nuisance cases, looking first at the relevant Articles of the Convention, then at the case law of the Strasbourg court, and then at the English case law since the HRA came into force. In the second part of the chapter, I consider the relationship between the vertical effect of the HRA and the law of nuisance. In particular, I identify the advantages and disadvantages for a claimant of the two possible routes to redress, and the inter-relationship between the two types of claim when they arise on the same set of facts. Finally, in the third part of the chapter, I consider the possible ‘horizontal effect’ of the HRA on the law of nuisance itself, looking in particular at the standing rules and the statutory authority defence.

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