Comeskey, Ronan --- "Private nuisance, the emanation requirement and physical proximity" [2024] UOtaLawTD 9

Last Updated: 5 May 2025

Private Nuisance, the Emanation Requirement and Physical Proximity

Ronan VM Comeskey










A dissertation submitted in partial fulfilment of the requirements of the degree of Bachelor of Laws (Honours) at the University of Otago – Ōtākou Whakaihu Waka
11 October 2024

Acknowledgements

To Ruby, thank you for your love and support.

To my family, likewise.

To Associate Professor Maria Hook, thank you for your sustained encouragement, feedback and time.

To those who attended my seminar, thank you. In particular, thank you, Dr Lucas Clover-Alcolea, for your comments.

Last, but not least, to my fellow eighth floor inhabitants, thank you.

Abstract

A majority of the Supreme Court of the United Kingdom rejected the idea that emanation is required for an action to be sustained in private nuisance. This rejection contrasts with dicta of the House of Lords and the New Zealand Supreme Court. In the presence of much uncertainty, I clarify the precise meaning of emanation and enquire whether emanation is a requirement in New Zealand’s law of private nuisance. I also explain the deficiencies in the “physical invasion view” of the tort of private nuisance, and I propose that a more convincing account of private nuisance focuses on the extraterritorial aspect of the control that a claimant exerts by successfully bringing an action against a defendant in private nuisance. Those cases involving emanations, and those founding support for an emanation requirement, appease the more fundamental concern about ensuring that a claimant cannot exert extraterritorial control too far.

Table of Contents

I Introduction

A The Problem: Conflicting Dicta about Emanation

This contribution addresses dicta concerning a purported emanation requirement of the private nuisance action. At this stage, note that conflicting dicta exist as to whether emanation is a requirement. The United Kingdom Supreme Court’s recent decision in Fearn v Tate Gallery disavowed any emanation requirement. Lord Leggat JSC, writing for the majority, stated that “there is no requirement that the interference must be caused by a physical invasion”.^[1] This is equivalent to rejecting a so-called “emanation requirement”.^[2] The last time the New Zealand Supreme Court addressed the matter, the majority in Wu v Body Corporate 366611 described a “requirement for emanation”,^[3] and it doubted the viability of a claim in private nuisance in that case “because of lack of emanation”.^[4] In an entirely unrelated public nuisance context, the Supreme Court in Smith v Fonterra again appeared to accept that the tort of private nuisance (and by extension public nuisance) may require emanation.^[5]
This cursory survey identifies two positions: that emanation is a requirement or emanation is not a requirement. Following the decision in Fearn, New Zealand courts may soon be presented once again with the question of whether emanation is an element of private nuisance.^[6]

B Roadmap

In Subpart C of this Part, I explain the features of the tort of private nuisance of greatest relevance to us here. I will discuss the meaning of “emanation”, whether it is a requirement and the requirement’s academic equivalent—the “physical invasion view”—in Parts II–IV. By way of summary, I argue that “emanation” involves physical invasion of the claimant’s land, its status as a requirement in New Zealand law is unclear, but it is inconsistent with some of the case law and is otherwise undesirable. Finally, in Part V, I argue that the bipolar debate—that emanation is or is not a requirement—overlooks the fact that, where emanation is present, it effects a more fundamental feature of private nuisance: physical proximity between the defendant’s activity and the claimant’s land.

C Private Nuisance

Private nuisance is a “tort against land”.^[7] It is often said that private nuisance protects one’s “right to use and enjoy their land”.^[8] Beyond this, the tort is contentious and unclear.^[9] It is worth underscoring and ascertaining some of the elements of private nuisance that I adopt.
A claimant must prove that the interference is substantial and unreasonable. Different formulations exist,^[10] but the point is that a court undertakes a threshold enquiry. (For the remaining Parts, I default to the “substantial and unreasonable” formulation for convenience only.) Those interferences causing “material injury to property” always meet this threshold, whereas those interferences causing “sensible personal discomfort” might not.^[11] The most important factor that bears on whether an interference is substantial and unreasonable is the character of the locality, because claimants within localities of different characters may be expected to tolerate different levels of interference.^[12] Other factors relevant to whether an interference meets this threshold include the presence of malice^[13] and whether the claimant is overly sensitive.^[14]
A second feature, implicit in the “maxim” “private nuisance is a tort against land”, is the requirement that a plaintiff has a sufficient interest in the land which is the subject of the interference.^[15] The enquiry is whether an interference constitutes harm to the land, not its inhabitants.^[16] Thus, in Hunter v Canary Wharf, some plaintiffs were denied standing to sue for want of not being mere licensees.^[17] (Hereinafter, I use “proprietor” to refer to someone with a sufficient interest in land.)
A final, important feature of the tort is the various standards that, if met, attribute the activity causative of an interference (and thus the harm) to the defendant. Defendants have been held responsible for activities that they create,^[18] those on their land which they continue,^[19] those on their land which they adopt,^[20] those caused directly by their licensees^[21] and even those committed by their tenant with authority.^[22] Regarding creation, one of the narrowest answers to the question “Who can be held responsible?”^[23] is the creator that possesses the land from which the interference originates.^[24] However, the creator of a nuisance is always liable for it, whether they are a trespasser or licensee of the private land from which the nuisance originates.^[25] Further, the origin of the interference need not be privately owned land.^[26] Some doubted authority even asserts the possibility of private nuisance governing interferences originating from the affected land.^[27] The correct position is that whilst private nuisance is certainly a tort against land, it is not necessarily a “tort by land”.^[28] Nolan attributes the error to, amongst other things, a conflation of land which is not the plaintiff’s with land which is the defendant’s for the purpose of distinguishing private nuisance trespass to land.^[29]

II Emanation

To determine whether emanation is a requirement, it is first necessary to ascertain the meaning of emanation. In this Part, I demonstrate that an “emanation case” is, properly so-called, a case that involves physical invasion of the claimant’s land. Moreover, the physical invasion must be a necessary and sufficient condition for the interference. A case which does not fit this description is apt to be described as a “non-emanation case. Only emanation cases may satisfy an emanation requirement.

A “Emanation” Involves Physical Invasion of the Claimant’s Land

The starting point is Lord Goff’s dictum in Hunter because our Supreme Court endorsed it in espousing an emanation requirement in Wu.^[30] In Hunter, the plaintiffs alleged private nuisance in relation to the defendant’s newly constructed building that precluded the passage of television signals to their land. Deciding that this did not give rise to an actionable interference in private nuisance, Lord Goff (with whom Lord Lloyd agreed on this point) delivered this passage:^[31]

... in the absence of an easement, more is required than the mere presence of a neighbouring building to give rise to an actionable private nuisance. Indeed, for an action in private nuisance to lie in respect of interference with the plaintiff’s enjoyment of his land, it will generally arise from something emanating from the defendant’s land. Such emanation may take many forms—noise, dirt, fumes, a noxious smell, vibrations, and suchlike.

Strictly speaking, the elaboration about emanation is obiter,^[32] because the determination that the interference was non-actionable followed from the first proposition that one cannot complain about the mere presence of a neighbouring building. Lord Lloyd perhaps articulates it best; having already decided that the interference was non-actionable because the obstruction of television signals is never actionable, he offered lack of emanation as “further precision... in answering the question”^[33] of the non-actionability of the interference. Moreover, observe that Lord Goff refers to emanation from the defendant’s land. This is “much the same” as invasions of the claimant’s land,^[34] especially since private nuisance is not a “tort by land”.^[35]
In Wu, after the electronic locks to the common property and the appellant’s unit were reprogrammed, the respondent made the provision of new electronic key access conditional on entering into a management agreement to the effect that the appellant, unwilling to enter the agreement, could not access their unit. In espousing the emanation requirement, the Court also made explicit what Lord Goff left vague: the emanated thing must invade the plaintiff’s land.^[36]
It also repeated Lord Goff’s examples of emanations coming with the ambit of private nuisance: “noise, dirt, noxious substances or vibrations”.^[37] The spread of fire and the “emission” of electromagnetic fields have also properly been described as emanations,^[38] because they involved a physical invasion of the claimant’s land. Although the Supreme Court’s examples may be mostly characterised as intangible, tangible things—falling trees,^[39] human bodies, golf balls, cigarette butts^[40] and Japanese knotweed,^[41] for example—may constitute emanations. The Wu case did not involve the physical invasion of the plaintiff’s land,^[42] and the Court doubted the claim because of lack of emanation.^[43]
Note that Hunter and Wu are cases bearing on an emanation requirement, and we will return to these cases, amongst others, to ascertain the extent to which an emanation requirement exists.^[44]

B What Emanation is not: “Metaphorical” Emanation

In this Subpart, I address an interpretation of emanation inconsistent with Lord Goff’s dictum. Emanation, in one sense, describes the familiar, physical phenomena that were the subject of the preceding Subpart: “[s]omething emitted or radiated by a material object; esp[ecially] applied to impalpable things, as light, a magnetic or electric effluvium, [or] an odour”.^[45] Alternatively, “emanation” (literally) means “[t]he process of flowing forth, issuing, or proceeding from anything as a source.”^[46] To emanate, in this second context, means “[t]o flow forth, issue [or] originate from a person or thing as a source.”^[47]
It is this second meaning of emanation which is its “metaphorical” meaning. If pressed to accept the proposition that “emanation” is an element of the private nuisance action, Mann J of the High Court of England and Wales would have accepted that the interference in issue in Fearn—a “gaze” or an “intense visual intrusion” from a neighbour’s viewing platform—constituted an emanation: “it may be metaphorical to say that a gaze emanates in the same way as a noise or a smell, but in my view the metaphor is compelling in these circumstances”.^[48]
If we analyse Hunter through this lens, we might say that the obstruction of television signals constituted that which “metaphorically” emanated by flowing forth from the defendant’s land to the claimants’ land. Indeed, Lords Goff and Cooke considered that Hunter involved what the German Bundesgerichtshof, in another case involving the obstruction of television signals, called “negative Immissionen” (negative effects).^[49] These negative effects are what metaphorically emanated from the defendant’s building. However, as above, Hunter is a non-emanation case. Lord Goff’s dictum is about the physical quality of the thing transported, and it does not include “metaphorical emanation” or the transmission of “negative effects”. As much as “metaphorical emanation” may sidestep the potential injustices flowing from Lord Goff’s dictum in Hunter,^[50] his dictum cannot be understood in these terms.

C What Emanation is not: the Wu Confusion

The Supreme Court in Wu adopted Lord Goff’s dictum, and to the extent that Wu stands for the proposition that Lord Goff’s dictum is good law (and relies on a proper interpretation of Lord Goff’s dictum), it is relevant to this contribution.^[51] However, there exists another part of the Supreme Court’s reasoning. It conflated emanation—the physical quality of the interference—with the origin of the interference. The Supreme Court stated:^[52]

The requirement for emanation stems from the maxim sic utere tuo ut alienum non laedas (enjoy your own property in such a manner as not to injure that of another person). Thus, in order to sustain an action for private nuisance, “it must be proved not only that the plaintiff’s use of his land has been interfered with but also that the defendant maintained on his land a harmful state of affairs which caused that interference.”

The maxim is vague,^[53] and it is the subject of criticism.^[54] Moreover, David Neild rightly suggested that it is unclear how any emanation requirement follows from the maxim.^[55] Recall that the defendant in Hunter built a building on its land. The phrase “from the defendant’s land” in Lord Goff’s dictum—“[an action] will generally arise from something emanating from the defendant’s land”^[56]—is therefore superfluous. Lord Goff’s emphasis was on the form which the emanation takes which must, in general, be some physical phenomenon.^[57] The Supreme Court, although purporting to adopt Hunter, misconstrued emanation—something speaking to the physical quality of an interference—with the origin of the interference being the defendant’s land. The emanation concept can only tell us that an origin exists, but it cannot tell us anything more particular about the origin.
The Supreme Court’s understanding of emanation—that is, that emanation says something about the origin of the interference—is related to the metaphorical notion of emanation in the preceding Subpart. Justice Asher (of the High Court) in Wu decided that provided:^[58]

... the plaintiff does not have exclusive control over the area from which the nuisance emanates, there appears to be no restriction on the place from which a nuisance must emanate.

Whether or not Asher J was correct about there being no such restrictions,^[59] his Honour correctly identified that all interferences emanate in the metaphorical sense from their origin.^[60] It is best to not use the words “emanation” or “emanate” to describe this concept; it culminated in Court of Appeal in Wu stating that Hunter “was concerned with [an] interference that had emanated from a source outside of the [claimants’] property.”^[61] This is, of course, a misrepresentation of Hunter.
Consider Guppys v Brookling for a straightforward illustration of the difference between emanations (involving physical invasions) and “metaphorical” emanations (bearing on the origin of an interference). In that case, the defendant landlord, to remove their tenant, took steps to render the land uninhabitable including disconnecting utilities and making access difficult.^[62] A “thing”, being an obstruction, metaphorically emanated from outside the plaintiff’s land into the plaintiff’s land, but the case did not involve the physical invasion of the plaintiff’s land, and so it is a non-emanation case.^[63]

D Not All Cases Involving Physical Invasion are Emanation Cases

We return to the understanding that emanation involves physical invasion. The purpose of this Subpart is to establish that not every case that involves a physical invasion is an emanation case—that is, a case that might meet an emanation requirement. There is no consensus in the literature or the case law as to what cases involving physical invasions are properly characterised as emanation cases, and so I seek to provide clarity in this Subpart. In particular, we will see that two cases, Thompson-Schwab v Costaki and BNZ v Greenwood,^[64] plague this disagreement. Moreover, the framework introduced here will help us carefully distinguish emanation and non-emanation cases for the remainder of this contribution.
An emanation case involves a physical invasion that is a necessary and sufficient condition for the interference. A physical invasion is necessary for the interference if, without it, there is nothing of which the claimant may complain. A physical invasion is sufficient if, by itself, it may constitute a “substantial and unreasonable” interference. A case involving physical invasions might fail to be an emanation case for want of necessity or sufficiency.

1 Necessity

Recall that Fearn involved an intense visual intrusion from neighbouring land. The defendant in that case operated a viewing platform, and it invited guests onto the platform who looked at, peered into, waved at and photographed the claimants’ luxury, glass-walled apartments.^[65] Contrary to the understanding of emanation introduced in this Subpart, Mann J (in addition to that discussed in Subpart B, above) characterised the interference in Fearn in this way:^[66]

If the sight of something on the defendant’s land can give rise to a nuisance claim as in Thompson-Schwab v Costaki..., then it should be noted that part of the privacy claim could be founded on the fact that the claimants find it oppressive to see the watchers watch them.

In Costaki, the complaint was about the defendant using their land for prostitution.^[67] It has therefore been described as an “affront” case,^[68] because the interference constitutes one of offence. Some suggest it is a non-emanation case.^[69] However, Douglas and McFarlane observe that the visibility of the defendant’s premises, “which necessarily requires the passing of light rays over the claimant’s land”, means that Costaki is an emanation case by invasion of light.^[70]
The Court’s decision in Costaki indicates that the cause of the interference was considered to be the knowledge of the use of nearby land—the affront—more so than the mere existence of the plaintiff’s line of sight to the activities.^[71] The Court of Appeal ordered injunctive relief prohibiting the use of the premises for prostitution “in the manner complained of by the plaintiffs [the residents of 8 and 13 Chesterfield Street] in this action or otherwise so as to cause a nuisance to the plaintiffs or either of them”,^[72] even though the evidence only showed that the defendants’ activities “force[d] themselves upon the sense of sight at least of the residents in No. 13.”^[73] Whilst Douglas and McFarlane are correct that a line of sight necessitates an invasion by light, a line of sight itself, and thus a physical invasion, was not considered necessary in that case. Without any physical invasion, the claimant still had something to complain about. Costaki is therefore a non-emanation case.
Greenwood involved a dazzling glare created by the interaction of sunlight and the defendant’s building.^[74] Some suggest it is a non-emanation case,^[75] but like Costaki, the case involved light “invading” the plaintiff’s land.^[76] Unlike in Costaki, the invasion of light formed a necessary (and sufficient) component of the invasion, for in its absence, there could be no interference. Greenwood is an emanation case.^[77]
Fearn is a non-emanation case because the cause of the complaint was the interference with the plaintiff’s privacy, notwithstanding that the claimants could see those overlooking their apartments.^[78] If there existed a one-way window between the claimants’ and defendant’s land permitting light to enter the defendant’s viewing platform and forbidding light to enter the claimants’ land (thereby precluding light from the defendant’s platform invading the claimants’ apartments), Mann J’s affirmative finding as to the potential actionability of the interference ought to have been the same.^[79] Notice that if the defendant in Greenwood implemented a one-way window, the outcome of the case would have differed.

2 Sufficiency

A non-physical interference (an affront or obstruction, for example) that involves a physical invasion will not ordinarily be an emanation case because the invasion will not ordinarily meet the sufficiency condition. Take, for example, a claimant who suffers an obstructed view and pleads their case on the basis that light, reflected from the obstruction, is physically invading their land.^[80] If the physical component of the interference sufficed, by itself, to be a private nuisance, then all activities situated within the line of sight of my land are substantially and unreasonably interfering with my land and are thereby causing a private nuisance against me.^[81] This ought not to be the case.
The sufficiency condition is, I admit, elusive. Let us work through a final example, the Indianian case Wernke v Halas. In that case, a toilet “seat and lid [were] affixed to a piece of blue plywood with a painted brown spot” facing the claimant’s land.^[82] Unlike in Costaki, there is no doubt that the case involved an invasion by light. Moreover, unlike in Fearn, the physical invasion was a necessary condition for the interference; if the claimants could not have seen the “tasteless decoration”, they would have had nothing to complain about. But the physical invasion falls short of being sufficient because the complaint was that the toilet seat constituted an “aesthetic annoyance”,^[83] and the allegation relied on the claimants’ aesthetic displeasure to be “substantial and unreasonable”.^[84] Wernke is a non-emanation case.^[85]

E Conclusion: The Meaning of Emanation

Toward determining whether emanation is and should be a requirement of private nuisance in the following Parts, we now know with certainty what an emanation case is: (a) it involves something crossing into the boundary of the claimant’s land; (b) the thing has certain physical characteristics; and (c) the physical thing is both a necessary and sufficient condition for the interference. Any emanation requirement says nothing of the origin of the interference.

III The Status and Nature of an Emanation “Requirement”

The question of whether emanation is a requirement, and also the nature of any emanation requirement, is more nuanced than its cursory treatment in Part I. In this Part, I build on our examination of Hunter and Wu to the extent they espouse an emanation requirement. I also consider some subsequent treatment of these cases.

A Hunter, Some Illustrations and Wu

Lord Goff in Hunter provided that a private nuisance “generally arise[s] from something emanating”.^[86] Moreover, he squared the successfully pleaded non-emanation cases on the basis that they are “so offensive”,^[87] and his Lordship specified that such non-emanation cases must be “relatively rare”.^[88] It appears that Lord Goff envisaged that emanation cases are generally actionable, whereas non-emanation cases are actionable only if they meet some threshold of offensiveness. We know what sort of cases meet that first test; they are the cases properly described as “emanation cases” according to Part II. It therefore is apt to turn to the meaning of those “relatively rare” cases.
Justice Burnton in Anglian Water v Crawshaw Robbins considered that those “relatively rare” cases were apt to be described as “exceptional”,^[89] and his Honour utilised Lord Goff’s dictum in an entirely proper way:^[90]

... the negligent interruption of a supply of gas by a third party is not actionable as a private nuisance. It does not involve an invasion of any substance or form of energy on to [sic] the claimant’s land. It is not one of the exceptional cases of liability in nuisance without such an invasion. A home owner [sic] or tenant does not have a property right in the supply of gas. His or her protection lies in his or her rights against the gas supplier.

Justice Burnton (a) enquired into whether the case was an emanation case then, (b) having concluded it was not an emanation case, considered whether it was an exceptional case. Given Burnton J’s brief analysis in answering the second question, I surmise that his Honour considered whether the case belonged within one of the established categories of non-emanation cases.
Indeed, this was the approach of Kenneth Martin J of the Supreme Court of Western Australia in Shogunn v Public Transport Authority. His Honour decided (a) that the modification of road markings reducing the accessibility of the claimant’s premises was a non-emanatory interference and (b) that the case was not actionable because the claimant’s case did not fit the relevant category of non-emanation cases,^[91] being the “picketing” cases.^[92]
In Onus v Telstra, Price J of the Supreme Court of New South Wales also adopted Lord Goff’s approach and applied it sensibly by (a) deciding that the mere construction of the defendant’s mobile network tower did not constitute an emanation and (b) justifying why, nonetheless, the case was a “special” actionable one, because of the serious risk to the life of users of the nearby airfield.^[93] Justice Price’s approach is more flexible than the one that seeks to categorise non-emanation cases.
Before the Wu case came before the courts, Frater J of the New Zealand High Court in Harbourcity v Owen described emanation as a “necessary link” and did not consider whether the non-emanatory interference in that case—the loss of development potential of the claimant’s land—came within Lord Goff’s exception.^[94]
The Supreme Court in Wu adopted Lord Goff’s dictum in Hunter (notwithstanding the Wu confusion), and it articulated it in terms of emanation being a requirement:^[95]

For an action for private nuisance to be sustained on the basis of interference with the use or enjoyment of land, some emanation of the effect of the nuisance from the defendant’s land to the plaintiff’s land is usually required. There may be circumstances where the “activities on the defendant’s land are in themselves so offensive to neighbours as to constitute an actionable nuisance”. However, those circumstances will be “rare”.

Moreover, those rare cases were, to the Court, a “category of cases”,^[96] and so it would appear to endorse the less flexible approach to Lord Goff’s dictum.

B Subsequent Consideration in New Zealand and the United Kingdom

The Court of Appeal in BEMA v Body Corporate 366611 stated of the dicta in Wu that “[t]o say that emanation is usual is to recognise that it may not always be necessary.”^[97] The dispute in BEMA arose from, for our purposes, the same circumstances as in Wu.^[98] Even though the Supreme Court doubted that the refusal to afford the appellant access constituted an actionable interference in private nuisance “because of lack of emanation” “in the sense used in the caselaw”,^[99] the BEMA Court came to the opposite conclusion simply because emanation is not always necessary.^[100]
These positions are irreconcilable. The Supreme Court purported to use lack of emanation as a reason for doubting the private nuisance claim. The BEMA Court did not consider either step of the Hunter analysis.^[101] Both Courts’ dicta are, strictly speaking, unbinding because they preferred to resolve the respective cases in trespass.^[102] Since both Courts derived their position from an uncritical acceptance and surface-reading of Hunter,^[103] neither should be considered particularly persuasive.
The Court of Appeal has further considered an emanation requirement since its decision in BEMA. In Nottingham Forest v Unison Networks,^[104] the Court made sure to justify that falling trees were emanations despite being tangible, unlike the intangible interferences paradigmatic of private nuisance.^[105] The Court of Appeal could have avoided the question by citing BEMA. It instead cited Wu; it described emanation as “a traditional requirement”; and it labelled the BEMA Court’s contributions as “reservations on the emanation requirement”.^[106] Given the Court decided the case was an emanation case, it did not need to determine the definitive existence or nature of an emanation requirement.
In the United Kingdom, lack of emanation is no longer a reason to deny a claim because, according to the majority of the Supreme Court in Fearn, “[a]nything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance.”^[107] Even though the non-emanatory interference in Fearn was considered capable of being a nuisance, those who suppose that emanation is a requirement may still well argue that a claimant’s “rights in land” are, or ought to be, limited as much as possible to excluding emanations,^[108] notwithstanding Lord Leggat’s insistence that “there is no requirement that the interference must be caused by a physical invasion”.^[109]
The minority also considered that “intense visual intrusion”, although being non-emanatory, is capable of being an actionable nuisance without displacing Lord Goff’s dictum. Instead, for the minority, such an intrusion comes within Lord Goff’s “relatively rare” exception.^[110] Given there existed no established authority about the actionability of interferences against privacy interests via overlooking,^[111] we see here a more flexible interpretation of Lord Goff’s exception, notwithstanding that Lord Sales JSC described Fearn as belonging within the exceptional “category” of cases.

C Emanation may or may not be a Requirement

The position in New Zealand is uncertain because our leading authorities are obiter and conflicting. On the approach taken in Hunter and adopted in Wu, actionable non-emanation cases brought “on the basis of interference with use or enjoyment of land” require some additional justification. This justification likely comes in the form of fitting the case at hand with the established, actionable non-emanatory interferences. On the BEMA approach, that a case is an emanation case is wholly irrelevant to the analysis.

IV The “Physical Invasion View” Should be Rejected

We now explore the academic claim that private nuisance only governs, or ought to only govern, physical invasions. This is so that we can appreciate what a court does when it claims that emanation is a (general) requirement for liability in private nuisance. Nolan calls this claim the “physical invasion view” of the tort.^[112] I adopt this terminology for the remaining Parts. For our purposes, the physical invasion view is concerned with physical invasions to the extent that they are emanations within the meaning ascertained in Part II (and so captured by any emanation requirement as ascertained in Part III).^[113]
The gist of the physical invasion view is that a proprietor’s rights are limited to being able to exclude physical things from entering the physical boundaries of their land.^[114] So, it goes, an interference with the use or enjoyment of land is only an actionable nuisance if the defendant is responsible for something crossing into the plaintiff’s land.^[115] In the following Subparts, I analyse different aspects of the physical invasion view and critique it.

A Rights in Land

When, on a physical invasion view, can we say that a proprietor’s land is interfered with? McBride supposed, in explaining the physical invasion view, that “[i]n the absence of a physical interference with your land, or a right attached to your land, nothing has happened to your land”^[116] This begs the question “What is your land?” In this Subpart and the next, we will see that the answer given by the physical invasion view is unduly restrictive.

1 Claims to exclude and freedoms to use

A landholder has a right to exclude things from their land.^[117] Thus, claimants have succeeded in bringing trespass claims against others for entering and crossing over their land^[118] and projecting objects into the airspace above their land.^[119] The Court of Appeal recently catalogued many examples of things which a claimant can exclude from their land in trespass: cars; spoil, debris and litter from gutters; firecrackers, stones, earth and rubbish; bathing machines; hunting dogs; and creepers growing over a gutter.^[120] To the proponent of the physical invasion view, private nuisance protects the same right,^[121] and so landholders may bring an action against another responsible for foul-smelling particles,^[122] smoke,^[123] dust^[124] or noise^[125] entering their land. Douglas and McFarlane specify that although private nuisance purports to protect claimants’ “right to use and enjoy their land”,^[126] their “right to use” is protected only indirectly to the extent that a claimant’s legally recognised “right to exclude” is violated.^[127]
The difference, according to Douglas and McFarlane, is that whilst a landholder is certainly free to use their land (this freedom describing their “right to use”), they may claim to exclude things from their land (this claim describing their “right to exclude”).^[128] Rights (freedoms) to use do not oblige any other person to behave in any particular way; they only protect the proprietor from complaint or challenge in relation to a particular use.^[129] Conversely, rights (claims) to exclude oblige others to refrain from including in another’s land themselves or things for which they are responsible (Douglas and McFarlane say that we must not “physically interfere” with another’s land).^[130] This is what, for the remainder of this contribution, I mean by “freedom” and “claim” in relation to rights to use and rights to exclude.^[131]
A private nuisance claim in an emanation case often arises at the intersection of a defendant landholder’s right to use and a claimant landholder’s right to exclude.^[132] Whilst the former is free to emit physical entities from their land, the claimant may claim to stop them when the emanation constitutes a substantial and unreasonable interference with the use or enjoyment of their land.^[133]
The difference between rights to use and rights to exclude in a non-emanation case is best illustrated by Fearn. Consider first the claimants’ rights. In Part II, we established that the Tate Gallery was not responsible for anything emanating into the claimants’ land. From the physical invasion view, such an interference cannot constitute an actionable nuisance. The same can be said of the other non-emanation cases: Hunter, Wu, BEMA, Costaki and Guppys.^[134] But the claimants in Fearn succeeded; they therefore had a claim to something; and so on the physical invasion view the case was wrongly decided.^[135] Their claim did not arise from the right to exclude.^[136] Instead, the Court directly protected their freedom to use with a claim to use.^[137] Indeed, Lord Leggat JSC purported to do exactly that, not only for non-emanation cases but for the tort of private nuisance as a whole:^[138]

Frequently, such interference is caused by something emanating from land occupied by or under the control of the defendant which physically invades the claimant’s land. ... In all such [emanation] cases, however, the basis of the claim is not the physical invasion itself but the resulting interference with the utility or amenity value of the claimant’s land.

As the dispute was one between proprietors, consider, too, the defendant’s rights. The Tate Gallery’s freedom to use its land for its own purposes did not protect it from the claimant’s complaint because the complaint was about an actionable nuisance. This may be contrasted with the position in Hunter where their Lordships articulated the defendant’s activity in terms of their “freedom to build”, thereby (in the absence of any emanation) insulating the defendant from liability for obstructing the passage of television signals.^[139]

2 An anomaly in this framework

That this exclusion-based model of private nuisance is flawed may be proved by counterexample. We have seen counterexamples. Recall, for example, Costaki BEMA, Guppys and the picketing cases.^[140] Indeed, commentators have pointed out that there are many such counterexamples; the private nuisance action protects, amongst other non-emanatory interferences, withdrawal of lateral support, diversion of a stream, interference with acquired rights^[141] and, in the United States, unsightly activities (despite Wernke) and spite fences.^[142]
My focus here is on a particularly problematic type of case—conditions affecting the temperature of the claimant’s land—that undermines the model of the physical invasion view. It is first necessary to discuss some background. Bagshaw proposes a more capacious requirement than emanation, being “behaviour having an effect that alters the physical condition of the claimant’s premises”. This includes “negative emanations” and “energy transfers”.^[143] By “negative emanations”, Bagshaw does not refer to the transmission of “negative Immissionen”.^[144] Rather, Bagshaw refers to those physical things which “emanate” from the claimant’s land to somewhere else.
With that background, conditions which cause the plaintiff’s land to become unbearably cold cause an interference that is a combination of the two of Bagshaw’s categories; it is a “negative energy transfer” because these conditions cause heat energy to “emanate” from the claimant’s land.^[145] Are we to suppose that an interference which causes the plaintiff’s land to be unbearably hot may be actionable,^[146] whereas the withdrawal of heat from the plaintiff’s land cannot be actionable? No.^[147] Towards impugning Douglas and McFarlane’ model, are we to suppose that the claimant in the latter case exercises an ordinary “right to exclude” heat, whereas, in the former, they are asserting some “claim to use” the heat? I argue the answer is no. It is strained to describe “heating up” as an ordinary emanation case and “cooling down” as a “rare” exception, as going to the limit of the law of private nuisance, as “so offensive” or as unusual.^[148] Whilst there is certainly a physical distinction between the process of “heating up” and “cooling down” the claimant’s land, this physical distinction must not affect the normative basis of the complaint. Property is not physics!^[149] We must reject the exclusionary basis of the physical invasion view. In both cases, the claimant is simply seeking to control the action of the defendant from land that is not theirs, and this concept leads quite neatly into our next topic of discussion.

B A Landholder’s Space

We now appreciate the difference between a landholder’s “right to use” and “right to exclude” on the physical invasion view. In particular, we see that a central thread on this view is treating rights to exclude as enforceable claims, whilst treating rights to use land as mere freedoms. However, it is not sufficient to investigate just a theory of rights because “the right to exclude others implies something to exclude from.”^[150] For example, one of its earliest academic proponents, Epstein, described this “thing” in the following terms:^[151]

Once acquired, the ownership of things is subject to the same entitlements and limitations as the ownership of the person. With land, for example, boundary lines have the same hard-edged quality as foul lines in baseball, while the ad coelum rule defines (within limits) the interest in the subsoil below and the airspace above.

We cease talking about a theory of rights, and we begin talking about the “field” or “space” over which they apply.^[152] We can now investigate what one’s land—one’s “object” or “thing”—is under a physical invasion view of the tort. The gist of the physical invasion view is that a landholder’s rights apply, as intimated by Epstein, over a three-dimensional space defined by the ad coelum rule. Moreover, the ideas introduced in this Subpart will become of central importance in Part V when we discuss how private nuisance is concerned with physically proximate interferences. As I intimated at the end of the preceding Subpart, I argue that private nuisance is about extending (by some distance) their control to outside that thing.

1 The physical invasion view: a “hard-edged”, three-dimensional space

The ad coelum rule specifies that a landholder’s interest as such exists within the boundary of their plot of land, extended vertically both upward and downward to encompass a three-dimensional volume.^[153] More importantly, the ad coelum rule facilitates the logic of the right to exclude; that is, it distributes all points of space to zero people or one person (or group of persons) to permit no more than one person (or one group of persons) to exclude the world at large from said point of space.^[154]
Trespass relies on the ad coelum rule to define a qualifying invasion.^[155] The slightest crossing suffices.^[156] The ad coelum rule necessarily lends meaning to the tort of private nuisance, as it does with trespass, by identifying at which point land is physically invaded on the physical invasion view.^[157] However, it is important here to note that a landholder’s space, as it is cognisable to the torts of trespass and private nuisance, is defined by the ad coelum rule (or some similar boundary-forming distributive rule), only on the assumption that trespass and private nuisance recognise only a right to exclude. That is, the ad coelum rule’s agenda in the torts of trespass and private nuisance is to provide an answer to the distributive problem, described above, introduced by the exclusion right.^[158] Indeed, the ad coelum rule is itself just one possible normative answer to the distribution of space problem.^[159]

2 Critique and the superior view: their normative space

The “thing”, then, that is capable of being interfered with is, on the physical invasion view, the three-dimensional object defined by the ad coelum rule. Douglas and McFarlane are quite explicit about this, for they use the phrase “thing” and “physical thing” interchangeably.^[160] The reason that this is important for the physical invasion view is because it provides the view some rhetorical finesse.^[161] It likens, as did Epstein, one’s land’s integrity with one’s bodily integrity^[162]—private nuisance is a tort against land,^[163] and without a physical invasion, “nothing has happened to your land”.^[164] However, as established, this “thing” is merely a consequence of assuming that private nuisance does only or should only protect one’s interest in excluding others from something. It is therefore simply a rearticulation of the point addressed in Subpart A.
Ben Ohavi gives a more convincing account of the “thing” that is the subject of the proprietor’s rights that encompasses what Douglas and McFarlane might call a “right to use”:^[165]

A better way to understand nuisance is to see it as a reflection of the idea that ownership rights sometimes extend beyond the physical confines of the property. So, even if I do not physically invade your premises [your “physical thing”], I still might invade your normative space.

But we may go further. Claims brought in private nuisance in relation to both what Douglas and McFarlane would call the right to exclude and the right to use share the same fundamental quality in that they effect “control over actions that occur outside the three-dimensional space if they unreasonably interfere with [the claimant’s] ability to determine how things will be as between [themselves] and others with regard to that space.”^[166] That is, the claim in both cases is that the defendant, upon premises that are not the claimant’s, act or not act in a particular way (or that they were wrong to act or not act in a particular way). So, when the claimant in Sturges v Bridgman successfully sought an injunction in relation to the noise and vibrations emanating from the defendant’s premises,^[167] the effect of the injunction was to control the defendant on land that was not the claimant’s. The same is true of the claimant who successfully sought an interim injunction in Costaki, a non-emanation case.^[168] Indeed, the same is true of the claimant who seeks to prevent the defendant from heating up their land and again of the claimant who seeks to prevent the defendant from cooling down their land.^[169]
What private nuisance is really about, then, is enabling proprietors to exert control, not within the three-dimensional space defined by the ad coelum rule, but within some normative space that exceeds their plot of land.^[170] When we realise that the essential components of private nuisance are (a) control (b) over some distance, any emanation requirement loses meaning. The essential questions become whether a proprietor’s right extends to the origin of the interference, and then whether the activity is of a kind that the claimant can (or should) control. Moreover, we see that the “thing” that private nuisance protects is not some three-dimensional space; in all cases, it is one’s normative space that exceeds the boundary of their land. In Part V, I address the issue of how far someone’s “normative space” extends.

C Distinguishing Trespass

1 Merrill’s distinction

If private nuisance protects against emanations, then it looks a lot like trespass. Merrill believes that property is primarily about exclusion,^[171] and so private nuisance, to Merrill, redresses wrongful inclusions by way of emanation.^[172] Merrill has worked to distinguish trespass and private nuisance on a physical invasion view of the tort. His distinction has gained support from other proponents of the physical invasion view, including Douglas and McFarlane.^[173]
Merrill’s distinction is based on the “dimensions” of the physical thing constituting the interference. Invasions by tangible particles—particles visible to the naked eye at rest—are governed by trespass, whereas other physical invasions may only constitute private nuisances.^[174] To fit the doctrinal distinction between the torts, Merrill has tactically described this difference as between those invasions “massive enough” to displace a landholder’s possession of (part of) their land and those that are merely annoying.^[175] This is supposedly important because the tangibility test isolates invasions with certain characteristics, which, to Merrill, set the scene for low transaction cost scenarios:^[176]

The source of things large enough to be visible to the naked eye—buildings, cars, boulders, flooding, and so forth—is relatively easy to trace, and hence both the party responsible for the intrusion and the parcels subject to the intrusion should be easy to match. Moreover, since visible things are generally not carried for long distances, disputes over such intrusions are likely to involve smaller numbers of parties—typically adjacent landholders. Finally, in contrast to interferences involving invisible agents—gas, noise, halfway houses, and so forth—interferences involving visible things are probably more likely to involve problems that can be solved without the need for some long-term monitoring or enforcement mechanisms.

2 Critique and New Zealand’s distinction

It is unclear why Douglas and McFarlane have adopted Merrill’s distinction as they do not necessarily seek to explain the law in terms of transaction costs. Moreover, a proponent of the physical invasion view is not necessarily committed to this particular distinction.^[177] It would appear that Douglas adopts the distinction to shore up the physical invasion view by showing that private nuisance “is based upon the same physical boundary crossing as that found in trespass” and that, therefore, private nuisance is merely an extension of trespass to intangible, yet still physically invading, interferences.^[178] That private nuisance protects from physical invasions follows from the fact that it is “mini trespass”;^[179] it performs the same function as trespass in slightly different contexts. However, Merrill, like other proponents of a physical invasion view, merely asserts the proposition that private nuisance is concerned only with the exclusion of physical entities. Exclusion is axiomatic.^[180] So whilst Merrill’s tangibility distinction might explain the consequence of a physical invasion view, the distinction ought not be relied on for the axiomatic proposition, lest we argue in circles.
It has been suggested that in New Zealand concurrent liability in both trespass and private nuisance for an interference is possible.^[181] However, the case founding such a conclusion, BEMA,^[182] is a non-emanation case, and it is possible that there still exists a sharp distinction in emanation cases.^[183] For example, in Nottingham Forest—the post-BEMA, tree-falling case—the Court of Appeal articulated the distinction in the following way: “it is that trespass to land relates to direct intrusions upon land by a defendant, whereas private nuisance deals with indirect or consequential interferences with land affecting a plaintiff’s right to use or enjoy it.”^[184] Any such distinction was not followed in Austin v Rentrezi where “significant factual overlap” caused Wylie J to consider a mixed bag of emanations and non-emanations—including obstructing a right of way, disconnection of various utilities,^[185] noise, vibration, debris and dirt, dust—jointly under (successfully pleaded) causes of action in trespass and private nuisance.^[186] On a physical invasion view of the tort, the non-emanatory interferences would be excluded from consideration and the emanatory interferences, strictly speaking, ought to have been considered distinctly depending on whether they were direct or indirect.
If New Zealand courts are to clarify the distinction, they might be guided by Nolan’s distinction which treats emanation and non-emanation cases differentially:^[187]

... (1) if no person or physical object crosses the boundary of the claimant’s land, then the interference is indirect [and so governed by private nuisance]; and (2) where there is a projection of a physical object onto the claimant’s land, the interference is direct [and so governed by trespass] if the act of the defendant was unlawful from the beginning, but indirect [and so governed by private nuisance] if the act of the defendant was initially lawful, but led afterwards to an invasion of the claimant’s rights.

D No “Free” Rights!

1 The concern

One of the primary concerns of proponents of the physical invasion view of the tort is, as intimated by Lord Goff, the improper acquisition of easements or other rights in relation to another’s land.^[188] Take, for example, Wright’s articulation of the concern:^[189]

As with the trespass action, the significant interference with the plaintiff’s interest in the use and enjoyment of land that is required for a private nuisance action must result from a... physical invasion of some entity (for a nuisance, an intangible entity) across the borders of the plaintiff’s land. Otherwise a property owner would be able to acquire easements for unobstructed views or the flow of (light, radio, television, telephone, internet, etc) waves across others’ property without the consent of the owners of the other property and without paying for the easements.

2 Critique

The concern is circular. It is inevitably the case that claimants unjustly acquire free, additional and non-consensual rights when, by assumption, a claimant only has a right to exclude physical entities from entering their land. And if the physical invasion view’s neat, exclusionary framework fails to account for the justice meted out in the cases, then such a contradiction says more about the injustice of the physical invasion view than the neatness (or lack thereof) in the case law.^[190]
In cases where we are concerned with giving landholders free easements—that is, cases involving nearby landholders as such—Wright’s concern is tempered because all landholders have roughly equivalent rights in relation to each other, coloured by the character of the neighbourhood. Epstein calls this “implicit in-kind compensation”:^[191]

Suppose that owners A through Z each have identical plots of land. A legal rule not in conformity with [a physical invasion model] is then used in all disputes between members of the group. To the extent that the rule’s incidence upon class members is uniform, and the rule does not benefit some third parties not members of the original group, then no compensation is in principle required, in spite of the universal deprivation of original rights brought about by collective means.

So, for example, a hypothetical right, cognisable to private nuisance tomorrow (but not today), to the effect of generally requiring landholders in residential localities to not point their CCTV cameras at particular parts of one another’s land would constitute a reciprocated redistribution of rights not warranting compensation.^[192] Indeed, the right to exclude intangible interferences originating from neighbouring land is such reciprocal right, but it is a long-established natural right,^[193] not an acquired (or newly recognised natural) one.
Moreover, when a claim is based upon an emanatory interference, the claimant is asserting a right in relation to what must or must not be done on land that is not theirs.^[194] This does not fall to be unjust on the physical invasion view, nor should it. That we should be concerned about giving landholder’s “free rights” in relation to others’ land is not a reason to adhere to a physical invasion view of private nuisance.
If Wright’s (and others’) concern extends to the possibility of recognising any one of the rights Wright mentioned—unobstructed views, for example—then we need not adopt a physical invasion view of the tort to preclude their adoption. For example, in Hunter, the ratio of the decision might be that one has no right in private nuisance to the unobstructed passage of television signals.^[195] This suffices, without adopting a physical invasion view, to preclude the acquisition of this right if it is perceived to be unjust.^[196]
It is this fact that prompts some to describe the emanation requirement as “mechanistic”:^[197] its blanket application invites an unnuanced appreciation for those sorts of non-emanatory interferences which nonetheless call for a remedy. Without it, we can more readily distinguish between the types of non-emanatory interferences that ought to be the subject of private nuisance (perhaps interference with water, electricity and access as in Guppys)^[198] and those that ought not to be (perhaps the obstruction of television signals as in Hunter).^[199] When a New Zealand court is presented with a case like Fearn—a non-emanatory, visual intrusion case—it will be more apt to analyse whether visual intrusions should be capable of being actionable nuisances as opposed to whether non-emanatory interferences should be capable of being actionable nuisances.^[200]

E Conclusion

A physical invasion view is generally propped up by an a priori understanding of property rights that a proprietor’s position as such shall involve only the ability to control what happens in a three-dimensional space.^[201] All the features of the physical invasion view—the importance of the ad coelum rule, distinctions with trespass and the perception of non-exclusion rights as unjust—flow from this assumption. In this Part, I have established that Costaki, Fearn, BEMA and Guppys—all examples of successfully brought, non-emanation cases—are inconsistent with this view of property rights.^[202] As a matter of description, the physical invasion view fails.
The unified account of private nuisance that helps us to explain the emanation cases and non-emanation cases focuses not on the boundary of the proprietor’s land; it focuses on the (a) control that a proprietor exerts (b) beyond the boundary of their land. The example I emphasised in this Part—heating up and cooling down someone’s land—tends to undermine the whole of the physical invasion view and supports the superior view.
As a normative position, the physical invasion view of the tort must be rejected. That the essence of property is exclusion might be theoretically sound, but the limitations the position places on the tort of private nuisance, and the circumstances in which it deprives claimants of remedies in relation to interferences with the use and enjoyment of land, call for it to be rejected to the extent that it manifests itself in New Zealand law through Hunter and Wu.
The BEMA Court is vindicated. It was right to denounce the emanation requirement, even though it did so on an improper reading of Wu and Hunter.^[203]

V Private Nuisance is Concerned with Physical Proximity

In the foregoing Part of this contribution, I challenged the physical invasion view of the tort of private nuisance given the existence of an emanation requirement is a somewhat open question in New Zealand. The support it receives in the case law should be reconsidered. This Part addresses the contention that, given the deficiencies in the physical invasion view, Fearn is the way forward—that, per Lord Leggat JSC for the majority, “there is no conceptual or a priori limit to what can constitute a nuisance.”^[204] I reject this view on the basis that there does exist a conceptual limit: physical proximity. When presented with competing arguments, a New Zealand court should avoid the apparent false dichotomy—that the Fearn majority is wholly correct or the Fearn majority is wholly incorrect.
I argue that private nuisance is concerned with disputes arising from a sufficient degree of physical proximity between the thing for which the defendant is responsible and the plaintiff’s land. In convenient shorthand, it is concerned with disputes within “neighbourhoods”, although it is not necessarily concerned with disputes between literal neighbours.^[205]
I flag that in this Part, I focus on the proximity aspect of the tort of private nuisance, not the control aspect, even though, as I articulated in Part IV, both are central to the model of private nuisance proposed here. Scholars have developed various ideas about the control aspect, and it is apt to refer to their formulations. Essert’s formulation is that private nuisance is about entitling the claimant to control the defendant where, by their own conduct, the defendant has unreasonably controlled the claimant’s use of the claimant’s land.^[206] Penner’s is that private nuisance protects a proprietor from being constructively ousted from the subject-matter of their right (to occupy land, to pass over land and so forth), where the defendant has not taken it for themselves.^[207] Nolan proposes that private nuisance protects the “abstract usability” (as opposed to specific uses) of a claimant’s land.^[208] Beever advances the view that private nuisance prioritises more fundamental uses over less fundamental uses of land where they conflict.^[209] At least the three first views are largely reconcilable,^[210] and they share a rejection of the notion that a claimant is may only exert control by excluding physical things from some three-dimensional space.^[211] These ideas do not form the focus of this Part.^[212]
In Subpart A, I articulate the connection between emanation and physical proximity: emanation implies physical proximity. Emanation cases are paradigmatic of private nuisance cases,^[213] and this is a consequence of the more fundamental concept that private nuisance is concerned with “disputes within neighbourhoods”. In Subpart B, I illustrate the role of physical proximity in various cases. These cases are principally non-emanation cases given emanation implies physical proximity. In Subpart C, I build on the analysis in Part B; I justify, referring to some normative concerns, why the tort of private nuisance ought to be concerned only with such disputes.

A Emanation Implies Physical Proximity

Bagshaw identified three possible tests towards an account of what might constitute an interference actionable in private nuisance. The first is the most familiar to us and is what Bagshaw calls “physical emanation”, “which clearly covers transfers of tangible things... across the boundary”.^[214] The second, “behaviour having an effect that alters the physical condition of the claimant’s premises”,^[215] lead to our discussion of conditions which cause the claimant’s land to become unbearably cold.^[216]
Finally, the affront cases, Costaki and Laws v Florinplace,^[217] attract the conclusion at least that “such a private nuisance requires there to be a special link (perhaps one of physical proximity) between the source of the claimant’s disquiet and the particular premises” even though “a private nuisance by affront does not require any alteration in the physical condition of the claimant’s premises.”^[218] In his recent analysis of Fearn, Bagshaw developed this idea by suggesting that in that case, too, the spatial proximity of the overlooking in the case was material:^[219]

The author should confess that he adheres to beliefs about the tort of private nuisance that share more in common with “the physicalist heresy” than with Lord Leggat’s “there is no conceptual or a priori limit to what can constitute a nuisance.”; for example, the author believes that most of the catalogued private nuisance situations that involve “no physical invasion”, such as cases involving “mental disturbance” caused by knowing that prostitution is occurring nearby, nonetheless have a physical dimension (i.e. the objectionable activity being “nearby” makes a difference). For what it is worth, being stared at appears to have such a physical dimension: the experience varies in accordance with the physical proximity of the observer (or the use of technology to ‘overcome the distance’).

In sum, Bagshaw thinks that nearness matters. I argue that Bagshaw is correct, but I go further. In all circumstasnces, private nuisance is concerned with disputes within physically bounded neighbourhoods.
In particular, emanation is a proxy for physical proximity because, as Merrill noticed, tangible, physical things tend not to be carried long distances.^[220] The same is generally true of intangible, physical things when compared to non-physical things.^[221] There are three types of emanations, all of which imply physical proximity. (1) Immaterial, physical things—by noise and light, for example—tend to emanate by dispersing from the thing for which the defendant is responsible. Generally, their intensity decreases as the distance from the origin increases according to the inverse square law.^[222] (2) Material, but intangible, physical things—fine dust and unpleasant-smelling particles, for example—generally emanate in the same way, except that extraordinary extraneous conditions may alter their course.^[223] (3) Finally, material, tangible things emanate in a more targeted or focused fashion—the trees in Nottingham Forest^[224] or the projectiles in Matheson v Northcote College,^[225] for example—and, by their mass, are only capable of travelling short distances.^[226]
Some difficult or borderline cases are the dazzling glare in Greenwood and the bodies of the licensees in Matheson.^[227] The former represents a focused, intangible interference, yet the intensity of such an interference reduces as the distance increases. The bodies of the licensees in Matheson are tangible, but they can travel long distances. However, the ground of responsibility in that case, “whether what the plaintiff complain[ed] of was a natural and probable consequence of [the defendant] letting pupils [the licensees] play unsupervised”,^[228] nonetheless admits consideration of physical proximity.
When, then, a plaintiff perceives an emanatory interference and pleads private nuisance, this is equivalent to them saying that the source of the interference is physically proximate or else that technology has overcome the distance. Emanation implies physical proximity. Indeed, some have pointed out that private nuisance is an inadequate tool for dealing with physical invasions thought to be originating from a distant source because of the impracticality of being able to prove causation.^[229] An insistence upon an emanation requirement may, in part, be attributable to a desire to impose some physical proximity restraints.

B The Descriptive Claim: Physical Proximity Explains the Law

I now demonstrate that physical proximity clarifies the case law. Although I have explained that emanation implies physical proximity, it is nonetheless helpful to take, for an emanatory example, Bagshaw’s defendant who “plays the[ir] car stereo loudly whilst parked outside a [person’s] house”.^[230] On the principles of private nuisance which we have adopted for our purposes, such a defendant might be liable for private nuisance, and the question might turn on the character of the locality of which the defendant is not necessarily resident. But notice that the defendant’s physical proximity to the claimant’s land renders information about the locality available because sound implies physical proximity.^[231]

1 The affront cases

Physical proximity does more in non-emanation cases, where physical proximity is not implied. Recall that Bagshaw’s third test of physical proximity relied on an analysis of the affront cases. Consider, first, Costaki,^[232] and accept, for the sake of argument, the antiquated analysis of the case. Physical proximity does some basic work to insulate the defendant from liability in relation to the affront to the whole world.^[233] Would we, in Costaki, find in favour of a claimant on the other side of London notwithstanding that they are similarly repulsed by the defendant’s activities because they are repulsed by prostitution in general? No.^[234]
Moreover, physical proximity distinguishes those activities that a court may consider in determining whether an interference is substantial and unreasonable. Whilst the physically proximate “perambulations” of the defendants and their clients were given weight, no consideration was given to the more general, “undesirable” nature of their usually distant clients.^[235] In other words, that the defendants attracted people into the community who may have committed “immoral” acts elsewhere was of no moment because those immoral acts did not occur within physical proximity to the claimant’s land.^[236]
In Laws v Florinplace, another antiquated affront case concerning the operation of a pornography shop, Vinelott J considered whether the shop’s clientele might be a physically proximate danger to residents as a part of whether the shopkeeper was committing a nuisance, but his Honour did not consider the concern simply about the mere presence of so-called “undesirables”.^[237] The point is that those acts or behaviours making someone “undesirable” are, in and of themselves, irrelevant to the nuisance enquiry.^[238] Further, this is so because they do not occur physically proximately. Those proximate acts or behaviours which did make the shop’s clients “undesirable”—such as their perceived propensity to commit crimes nearby or the fact that they purchase and consume pornography nearby—were relevant to the enquiry.^[239]

2 Private nuisance and easements

Consider Douglas and McFarlane’s example of the defendant who blockades a local petrol station. The claimant, who has run out of petrol, is thereby precluded from exercising their vehicular right of way over the servient tenement, some significant distance away.^[240] The claimant generally has a right to sue the servient owner and third parties in private nuisance,^[241] but, because an easement is non-possessory, they cannot sue in trespass.^[242] Douglas and McFarlane suppose correctly that the defendant commits no wrong in this particular hypothetical against the claimant (at least in private nuisance) and they use this example to bolster their claim that the claimant has no “right to use” the servient tenement in the claim sense, but rather that they have a freedom to pass, coupled with the claim to exclude physical obstructions from within it.^[243] The claimant’s ability to exclude physical obstructions is limited; they can only do so where the interference substantially^[244] “interferes with the part of the [servient tenement] over which the easement is exercised, and in such a way as to impede [the claimant’s] right of way.”^[245] However, the servient owner or their predecessor in title is, to Douglas and McFarlane, unable to confer more than the claim to physically exclude things from within the three-dimensional space defined by the ad coelum rule, and so the dominant owner, like the servient owner, is unable to do anything about interferences with the so-called “right to use” (including the “negative Immissionen” from the hypothetical blockade).^[246]
There exists authority to the contrary.^[247] If, for example, the servient owner parks vehicles on a public highway, close to the way to make it more difficult for the dominant owner to access the way, then they may commit a private nuisance.^[248] In Balfour Beatty v Persons Unknown, the High Court of England and Wales considered that third party protest action from a public highway might constitute a private nuisance in relation to the claimant’s private right of way because of the obstruction caused.^[249] Recall that although such an interference might involve physical invasion of the servient tenement in the form of noise and light, such physical invasions are not necessary for the interference complained of (that is, the obstruction), and so Balfour Beatty is a non-emanation case.^[250]
We could, according to the principles espoused in these cases, modify Douglas and McFarlane’s example such that the blockade exists immediately outside the boundary of the way. The distinction between Douglas and McFarlane’s hypothetical and those cases just mentioned is the physical proximity to the servient tenement. The relevant question is therefore not necessarily one of physical invasion but of physical proximity. Equivalently, the servient owner, too, has such a right to confer.^[251] Indeed, we have already seen this right recognised in Guppys and the picketing cases.^[252]
Of course, emanation may serve as a proxy for physical proximity in this type of scenario. In Waterman v Boyle, Arden LJ (as she then was) suggested in obiter that if, for example, “there was a right to take cattle down a lane and the owner of adjacent land creates some persistent loud noise on its land that [emanates to the lane and therefore] makes it impossible to bring the cattle down the lane, that would be an interference with the right of access”.^[253] But the key feature in this example is not emanation; it is physical proximity between the origin of the interference and the adjoining land over which the interference is suffered implied by the emanation of sound.^[254]

3 Physical proximity in Wu and Fearn

Admittedly, there is one case that appears to not fit this model: Wu.^[255] I have so far suggested that such a case should in principle be actionable in private nuisance generally and that we can achieve this by rejecting the emanation requirement, as did the Court of Appeal in its sister case, BEMA.^[256] However, it is difficult to see how the defendant’s activity and the claimant’s land were physically proximate. The Court of Appeal in Wu perceived that the thing for which the defendant was responsible was the defendant’s agent’s decision to refuse access which “could have resulted from a decision made by [the agent] inside or outside the [claimants’] building.”^[257] On this understanding, there is physical proximity if the decision was made within the building^[258] but not necessarily if it was made outside the building. Justice Asher of the High Court in Wu perhaps elucidates the existence of physical proximity best: the “act of nuisance” was the physically proximate act of “maintaining electronic locks on the common areas that the proprietors could not use.”^[259]
Physical proximity also appears to have been operating in the background of the minority decision in Fearn. After deciding that overlooking is in principle actionable, Lord Sales JSC stated of the case that:^[260]

The application of the “give and take” principle as a way of modulating and reconciling the property rights of neighbouring landowners is particularly important where the issue is visual intrusion or overlooking. Many types of nuisance, such as those to do with smell, vibration and noise, naturally tend to occur over relatively short distances. But lines of sight may be open across considerable distances, and where a landowner can look out from their property then others can look in. Particularly in an urban environment, a degree of overlooking and visual intrusion is inevitable.

Of course, Fearn did involve neighbouring proprietors, separated by no more than 40 meters.^[261] But Lord Sales JSC’s view of the tort—that the unifying principle of the tort reasonableness between neighbours^[262]—necessarily limits the tort to disputes arising within physical proximity to the claimant’s land, and this limitation suffices to address his concern about lines of sight “across considerable distances”. We may extrapolate from this the principle that, where the defendant is not a neighbouring proprietor,^[263] the defendant’s activity must nonetheless be conducted within physical proximity to the claimant’s land.

C The Normative Claim: Private Nuisance Ought to Impose this Limit

In this Subpart, I build on some of the ideas alluded to in the preceding Subpart insofar as they are relevant to the normativity of a physical proximity limit. I argue that physical proximity properly serves three functions. Firstly, it properly limits the control which a proprietor may exert. Secondly, it ensures that, in relation to non-emanation cases, the harm is one to land. Finally, it sets the scene for a defendant to have a basic appreciation of their potential liabilities.

1 A proprietor’s control must not extend indefinitely

It would be an overstep if we permitted a proprietor’s control to extend too far beyond the boundaries of their land because real property is justifiable to the extent it permits us to control the activities within some location (some “neighbourhood”) defined in relation to the physical space surrounding the land which we own. Thus, Essert provides:^[264]

Private ownership of land is only justifiable, if it is justifiable at all, because it is valuable for us to be able to control others to have a right that they not act in certain ways defined roughly by reference to location, so that there can be the possibility of our being in charge of a location, so that we can experience a degree of sovereignty there and realize the value of a place of refuge in a way that cannot be realized except by being in charge of it in the sense of having a right over it.

The concern is more evident when we consider that the correlative of a claimant’s control is, when exercised, the defendant’s being controlled.^[265] Recall our analysis of Costaki in the preceding Subpart:^[266] it would be undue to give all proprietors the ability to sue someone using land for prostitution. Those activities that are generally lawful (such as prostitution) would not be permitted to occur anywhere because, given our existence in physical space, “everything that is done has to be done somewhere.”^[267]
This grates against the intuition that “harm is harm”, wherever its origin. This intuitive response should be rejected for three reasons. The first is that, in the majority of private nuisance cases, physical proximity is implied by emanation,^[268] and the role of physical proximity in relation to non-emanation cases is modest.^[269] The second is that private nuisance is not and never has been a solely claimant-focused cause of action. Ronald Coase’s infamous work on private nuisance gets right the fact that nuisance enquiry is reciprocal in nature,^[270] and some tests are employed in the defendant’s favour.^[271] For example, factors such as the character of the locality and any malice on the defendant’s part affect the enquiry into whether the interference is substantial and unreasonable.^[272] The enquiry is, in part, geared towards keeping liability in private nuisance “under control”.^[273] Physical proximity performs the same function. The third reason is that, as I explain in the next justification, physical proximity ascertains those harms that are relevant to the private nuisance action: harms to land.

2 Private nuisance is a tort against land

The second justification flows from the idea that private nuisance is a tort against land.^[274] I argue that it cannot be said that an interference is suffered by land unless the origin of an interference is physically proximate to the land either (a) because the interference is emanatory and physical proximity is implied^[275] or (b) otherwise by carefully examining the case. We saw this idea emerge in the distinction between Douglas and McFarlane’s non-actionable, blockaded petrol station in comparison to the physically proximate obstruction in Balfour Beatty. Justice Kenneth Martin in Shogunn explicitly acknowledged this idea in loss of access cases generally:^[276]

Physical obstructions [occurring some distance from an entryway] would typically constitute... not a direct interference with the access to the land (by means of a particular entry point) but only an obstruction to the general navigation of the roadway (ie the public right of passage). However, an obstruction in a roadway may nonetheless be said to interfere with a private right of access if the obstruction is reasonably proximate to an entryway to a property and the effect of that obstruction is to prevent or substantially impede the use of that entryway and thus to inhibit direct access to the property[.]

His Honour described the enquiry as “somewhat metaphysical” and “abstract” in character. The enquiry is whether the injury is one that the law can “fix upon” the land.^[277] The law cannot so fix an injury upon the land where the obstruction—or, more generally, the origin of the interference—is not physically proximate to the land.
A related concern is the excessive costs or liabilities that might become of the defendant. Lord Hoffman raised this point in relation to the respondents in Hunter,^[278] and McBride supposes that the physical invasion view of the tort acts appropriately to limit the number of potential claimants in relation to any potential invasion.^[279] This concern is distinct from the one in Costaki. It is not about precluding just anyone from complaining; it is about the disproportionately large impact that may proceed—that may metaphorically emanate—from the defendant’s activity, and it is also about preventing the massive coordination problem that arises in relation to these sorts of interferences.^[280] The characteristics of the three types of emanatory interferences ensure there is a limit to the defendant’s liability. However, some notion of physical proximity precludes too large a class of potential claimants from bringing claims in private nuisance against defendants without resorting to the physical invasion view of the tort.
Physical proximity may likewise permit us to locate an injury to land within what appears to be an injury to the person. In Hunter, Lord Goff disapproved of the Court of Appeal decision in Khorasandjian v Bush, a successfully pleaded, non-emanation case,^[281] where the defendant repeatedly harassed the complainant by telephoning to her mother’s house:^[282]

... the gravamen of the complaint lies in the harassment which is just as much an abuse, or indeed an invasion of [the complainant’s] privacy, whether she is pestered in this way in her mother’s or her husband’s house, or she is staying with a friend, or is at her place of work, or even in her car with a mobile phone.

In other words, the Court of Appeal confused “a tort designed to protect property with the desire to protect people.”^[283]
But Fearn illustrates that non-emanatory interferences ordinarily thought to be personal harms—in that case, an injury to privacy—may be harms to land where they occur in proximity to the land.^[284] If, in Khorasandjian, the complaint was about harasser yelling abuse from the edge of the complainant’s home, this is, to the extent it is about the invasion of sound, a simple, actionable emanation case.^[285] The same must be true if the complaint was about the harasser’s menacing presence on the edge of the complainant’s land.^[286] In both hypotheticals, that the origin of the interference is necessarily nearby implies an injury to the land itself,^[287] and it is only injuries to land which are within the purview of private nuisance.

3 Ex ante assessments of liability and modularity

The final justification builds on a policy of the physical invasion view. I will first present the justification as it applies to the physical invasion view of the tort and then extrapolate from it a principle justifying some physical proximity limit.
Private nuisance benefits “from the simplicity of a defined thing.”^[288] If emanation is a requirement, the law sends the same, easy-to-communicate and simply-understood message to potential tortfeasors as it does with trespass: “keep off”.^[289] This is relevant to Henry Smith’s explanation in terms of transaction costs, but he suggests that a physical invasion view is “also valuable for those who simply need to respect rights in order to avoid liability for violating them. And because the rules of exclusion are simple, it is easy to announce them ex ante.”^[290] The physical invasion view also organises plots of land into modules—third parties need not concern themselves with any of the particular uses being made of a plot of land nor the complex relationships thereof.^[291] They need only to avoid physically interfering with it.
But the physical invasion view does more than just organise individual plots of land into modules; it also groups nearby plots of land into modules. Potential tortfeasors can roughly determine the “neighbourhood” about themselves containing all those plots of land that may be exposed given the nature of the physical thing emanated and the intensity of the thing over which they are responsible. The potential tortfeasor can act without regard to those too physically distant. This is because, as established in Subpart A of this Part, emanatory interferences travel predictable distances.
So, if we move from demanding emanation to demanding physical proximity, we again impose some modular structure by grouping nearby plots of land together.^[292] This is a precondition for the locality rule. Courts consider the character of “the” or “a particular” locality to determine whether the interference is substantial and unreasonable,^[293] and such an assessment is not possible if physical proximity is not a precondition for liability in private nuisance. Moreover, in the context of all private nuisance disputes, information about the locality bearing on a potential tortfeasor’s liability is available. That this basic information is available, and that potential tortfeasors may make rudimentary approximations of their potential liabilities, is important not only so that their freedoms are not unduly limited,^[294] but so that they can properly navigate the restrictions on their freedoms that others’ interests impose.^[295] Provided the character of the locality within which you vend pornography precludes your immediate neighbours from complaining about your business, you can and should go about your business without concern for the character of any “extramodular” locality.^[296]

D Conclusion

We have seen in this Part that emanation implies physical proximity. Equivalently, emanation cases are physical proximity cases. The real work of physical proximity is therefore explaining and justifying the non-emanation cases.
In the non-emanation cases, physical proximity does three things: it ensures that private nuisance protects the object of rights in land; it ensures that a proprietor’s normative boundaries do not extend unduly far; and, perhaps most importantly, it permits us to act freely. In sum, it keeps the tort under control.

VI Looking Forward with Fearn

New Zealand courts may be confronted again with a non-emanatory interference and will be presented with the conflicting dicta in Hunter, Wu and Fearn.^[297] Lord Goff’s dictum in Hunter endorses the physical invasion view of the tort of private nuisance. The decision in Wu stands for the proposition that Lord Goff’s dictum is good law, and later courts have interpreted Wu as standing for as much.^[298] Lord Goff’s dictum applies to “emanations” which are interferences (a) involving invasion of the claimant’s land (b) by something physical (c) which is a necessary and sufficient condition for the interference. The view of the tort that private nuisance protects from emanations must be rejected because it lacks coherence, descriptive power, and normative value.
The categorical assertion in Fearn—that there is no conceptual limit as to what may constitute a private nuisance—must not be adopted as the alternative. Instead, courts should recognise that private nuisance is concerned with disputes within neighbourhoods. Indeed, in most cases, physical proximity will not be an issue; the “paradigmatic” case of private nuisance (that is, an emanation case) involves physically proximate parties. Notice that I have not yet cited a case lacking an element of physical proximity. But Lord Leggat JSC’s sweeping statements in Fearn have invited at least one novel claim in private nuisance in the United Kingdom concerning the failure to develop land,^[299] and it is conceivable that some novel claims may be brought here too.
One emergent line of cases identified by Hariharan might be the liability of major technology companies in private nuisance where, for example, “employees listen to conversations captured using smart speakers”^[300] or where they are complicit in broadcasting or distributing the videotaping of another’s land over the internet.^[301] Because private nuisance is about controlling others’ actions in respect of some neighbourhood, in rejecting these claims or claims like them, want of physical proximity may be proffered as a reason.

Bibliography

A Cases

1 New Zealand

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Barns v Nixon (1898) 17 NZLR 95 (SC).

Bank of New Zealand v Greenwood [1983] NZHC 150; [1984] 1 NZLR 525 (HC).

BEMA Property Investments Ltd v Body Corporate 366611 [2016] NZHC 1434.

BEMA Property Investments Ltd v Body Corporate 366611 [2017] NZCA 281, [2018] 2 NZLR 514.

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Body Corporate 366611 v Wu [2012] NZCA 614, [2013] 3 NZLR 522.

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Byrne v Judd [1908] NZLR 1106 (CA).

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French v Auckland City Corporation [1974] 1 NZLR 340 (SC).

Hamilton Cosmopolitan Club Inc v Lewis [2022] NZHC 2555.

Harbourcity Developments Ltd v Owen HC Auckland CIV-2006-404-1400, 30 March 2007.

Hawkes Bay Protein Ltd v Davidson [2003] 1 NZLR 536 (HC).

Hill v Waimea County Council HC Nelson A8/84, 12 March 1987.

Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA).

Karmarkar v Kajol Enterprises Ltd [2024] NZHC 683.

Leisure Investments NZ Ltd Partnership v Grace [2023] NZCA 89, [2023] 2 NZLR 724.

Matheson v Northcote College Board of Governors [1975] 2 NZLR 106 (SC).

Nottingham Forest Trustee Ltd v Unison Networks Ltd [2021] NZCA 227, [2021] 3 NZLR 823.

Relk Holdings Ltd v Manawatu Wanganui Regional Council HC Hamilton CP172/92, 27 April 1993.

Simunac v Lu [2024] NZHC 363.

Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134

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Wu v Body Corporate 366611 [2014] NZSC 137, [2015] 1 NZLR 215.

Young v Attorney-General [2021] NZHC 463.

Young v Attorney-General [2022] NZCA 391, [2023] 2 NZLR 24.

Young v Attorney-General [2023] NZSC 142, [2023] 1 NZLR 596.

2 Australia (All)

Cosentino v Peter Medich Properties Pty Ltd [2003] NSWSC 606.

Goldman v Hargrave [1966] UKPC 2; [1967] 1 AC 645 (PC).

Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40.

Kidman v Page [1959] Qd R 53 (SC).

Kraemers v Attorney-General [1966] TASStRp 15; [1966] Tas SR 113 (FC).

Onus v Telstra Corp Ltd [2011] NSWSC 33.

Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42.

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479.

3 Canada (All)

Antrim Truck Centre Ltd v Ontario (Transportation) 2013 SCC 13, [2013] 1 SCR 594.

Mann v Saulnier (1959) 19 DLR (2d) 130 (NBCA).

Martin v Lavigne 2011 BCCA 104, 17 BCLR (5th) 132.

Newell v Izzard [1944] 3 DLR 118 (NBSC).

Zhang v Davies 2017 BCSC 1180, [2017] BCJ No 1350.

4 England and Wales

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Anglian Water Services Ltd v Crawshaw Robbins & Co Ltd [2001] BLR 173 (EWHC).

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Bamford v Turnley (1862) 3 B & S 67, 122 ER 27 (Exch Ch).

Bernstein of Leigh (Baron) v Skyviews & General Ltd [1975] QB 479 (QB).

Birmingham Development Co Ltd v Tyler [2008] EWCA Civ 859.

Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35, [2011] 1 AC 380.

Bradford v Pickles [1895] AC 587 (HL).

Cambridge Water Co v Eastern Counties Leather plc [1993] UKHL 12; [1994] 2 AC 264 (HL).

Christie v Davey [1892] UKLawRpCh 185; [1893] 1 Ch 316 (Ch).

Colls v Home and Colonial Stores Ltd [1904] AC 179 (HL).

Deane v Clayton [1817] EngR 472; (1817) 7 Taunt 489, 129 ER 196 (Comm Pleas).

Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321.

Dennis v Head Start Day Nursery Ltd [2024] EWHC 1248 (Admin).

Esso Petroleum Co Ltd v Southport Corp [1956] 1 AC 218 (HL).

Fairhouse v Woodward CC Oxford G00MK61, 12 October 2022.

Fearn v Board of Trustees of the Tate Gallery [2019] EWHC 246 (Ch), [2019] Ch 369.

Fearn v Board of Trustees of the Tate Gallery [2020] EWCA Civ 104, [2020] Ch 621.

Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2024] 1 AC 1.

Goodtitle v Duke of Chandos [1760] EngR 733; (1760) 2 Burr 1065, 97 ER 710 (KB).

Guppys (Bridport) Ltd v Brookling (1984) 14 HLR 1 (EWCA).

Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 (QB).

High Speed Two (HS2) Ltd v Persons Unknown [2022] EWHC 2360 (KB).

Hilton v James Smith & Sons (Norwood) Ltd [1979] 2 EGLR 44 (EWCA).

Hubbard v Pitt [1976] QB 142 (CA).

Hunter v Canary Wharf Ltd [1997] 1 AC 655 (CA).

Hunter v Canary Wharf Ltd [1997] 1 AC 655 (HL).

Ineos Upstream Ltd v Persons Unknown [2017] EWHC 2945 (Ch).

Island Gas Ltd v Persons Unknown [2018] EWHC 3743 (Ch).

J Lyons & Sons v Wilkins (No 2) [1898] UKLawRpCh 178; [1899] 1 Ch 255 (CA).

Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16, [2024] AC 595.

Jelbert v Davis [1968] 1 WLR 589 (CA).

Khorasandjian v Bush [1993] EWCA Civ 18; [1993] QB 727 (CA).

Lawrence v Fen Tigers Ltd [2014] UKSC 13, [2014] AC 822.

Laws v Florinplace Ltd [1981] 1 All ER 659 (Ch).

Lippiatt v South Gloucestershire Council (1999) EWCA Civ 1151; [2000] QB 51 (CA).

Matania v The National Provincial Bank Ltd [1936] 2 All ER 633 (CA).

Midwood & Co Ltd v Manchester Corp [1905] UKLawRpKQB 136; [1905] 2 KB 597 (CA).

Miller v Jackson [1975] QB 966 (CA).

Paine & Co Ltd v St Neots Gas & Coke Co [1939] 3 All ER 812 (CA).

Partakis-Stevens v Sihan [2022] EWHC 3249 (TCC).

Pettey v Parsons [1914] UKLawRpCh 92; [1914] 2 Ch 653 (CA).

R v Rimmington [2006] UKHL 63, [2006] 1 AC 459.

Read v J Lyons & Co Ltd [1946] UKHL 2; [1947] AC 156 (HL).

Reinhardt v Mentasti [1889] UKLawRpCh 140; (1889) 42 Ch D 685 (Ch).

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Sedleigh-Denfield v O’Callaghan [1940] UKHL 2; [1940] AC 880 (HL).

Smith v Scott [1972] Ch 314 (Ch).

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Southport Corp v Esso Petroleum Co Ltd [1954] EWCA Civ 5; [1954] 2 QB 182 (CA).

St Helens Smelting Co v Tipping (1865) 11 HLC 642, 11 ER 1483 (HL).

Sturges v Bridgman [1878] Ch D 852 (CA).

Tandem Properties Ltd v Sheffield City Council [2024] EWHC 1926 (Ch).

Tapling v Jones [1865] EngR 333; (1865) 11 HLC 290, 11 ER 1344 (HL).

Thompson-Schwab v Costaki [1956] 1 WLR 335 (CA).

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Wall v Collins [2009] EWHC 2100 (Ch).

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Weston v Lawrence Weaver Ltd [1961] 1 QB 402 (QB).

Williams v Network Rail Infrastructure Ltd [2018] EWCA Civ 1514, [2019] QB 601.

5 Germany

G v City of Hamburg (1983) 88 BGHZ 344.

6 Ireland

Dublin (South) City Market Co v McCabes Ltd [1953] IR 283 (HC).

7 Scotland

Donoghue v Stevenson [1932] AC 562 (HL).

8 United States of America (All)

Burke v Smith 37 NW 838 (Mich 1888).

Fontainebleau Hotel Corp v Forty-Five Twenty-Five Inc 114 So 2d 357 (Fla Dist Ct App 1959).

Lucas v South Carolina Coastal Council [1992] USSC 111; 505 US 1003 (1992).

Mark v Department of Fish and Wildlife 974 P 2d 716 (Or App 2004).

Penn Central Transportation Co v New York City [1978] USSC 180; 438 US 104 (1977).

San Diego Gas & Electric Co v City of San Diego [1981] USSC 62; 450 US 621 (1981).

Wernke v Halas 600 NE 2d 117 (Ind App, 1992).

Wendt v Kerkhof 594 NE 2d 795 (Ind App, 1992).

B Legislation

1 New Zealand

Property Law Act 2007.

Unit Titles Act 1972 (repealed).

Unit Titles Act 2010.

2 Germany

Bürgerliches Gesetzbuch.

C Books and Chapters in Books

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Donal Nolan “‘A Tort Against Land’: Private Nuisance as a Property Tort” in Donal Nolan and Andrew Robertson (eds) Rights and Private Law (Hart Publishing, Oxford, 2012) 459.

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Robert Stevens “The Conflict of Rights” in Andrew Robertson and Tang Hang Wu (eds) The Goals of Private Law (Hart Publishing, Oxford, 2009) 139.

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Christian von Bar and Jason Grant Allen (tr) Foundations of Property Law: Things as Objects of Property Rights (Oxford University Press, Oxford, 2023).

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Jeremy Waldron The Right to Private Property (Clarendon Press, Oxford, 1988).

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Richard W Wright “Private Nuisance Law: A Window on Substantive Justice” in Donal Nolan and Andrew Robertson (eds) Rights and Private Law (Hart Publishing, Oxford, 2012) 491.

D Journal Articles

JB Ames “How Far an Act May be a Tort Because of the Wrongful Motive of the Actor” (1905) 18 Harv L Rev 411.

Roderick Bagshaw “Private Nuisance by Third Parties” (2000) 8 Tort L Rev 165.

Roderick Bagshaw “Rylands Confined” (2004) 120 LQR 388.

Roderick Bagshaw “Private Nuisance: The UK Supreme Court Take a View” (2023) 16 J Tort Law 173.

Antoinette Besier “Leaving it all to the Resource Management Act 1991: The Demise of the Tort of Private Nuisance” (2004) 35 VUWLR 563.

Lynton K Caldwell “Rights of Ownership or Rights of Use?—The Need for a New Conceptual Basis for Land Use Policy” (1974) 15 Wm & Mary L Rev 759.

Peter Cane “What a nuisance!” (1997) 113 LQR 515.

Robert S Chambers “Nuisance – Judicial Attack on Orthodoxy” [1978] NZLJ 172.

RH Coase “The Problem of Social Cost” (1960) 3 JLE 1.

Felix S Cohen “Dialogue on Private Property” (1954) 9 Rutgers L Rev 357.

Timothy Crawford “The Problems of Causation in Private Legal Remedies for Damage from Acid Rain” (1984) 17 Nat Resources Law 413.

Senara Eggleton “The Supreme Court on Visual Intrusion and Private Nuisance: Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4” (2023) 13(2) KSLR 22.

Richard A Epstein “Nuisance Law: Corrective Justice and Its Utilitarian Constraints” (1979) 8 J Legal Stud 49.

Richard A Epstein “The Harm Principle – And How it Grew” (1995) 45 UTLJ 369.

Christopher Essert “Nuisance and the Normative Boundaries of Ownership” (2016) 52 Tulsa L Rev 85.

Christopher Essert “Property and Homelessness” (2016) 44 Phil & Pub Aff 266.

John Finnis “Some Professorial Fallacies About Rights” [1972] AdelLawRw 7; (1972) 4 Adel L Rev 377.

Conor Gearty “The Place of Private Nuisance in a Modern Law of Torts” (1989) 48 CLJ 214.

Shelley Geiszler “Nuisance Most Fowl: The Problem with Chicago’s Permissive Livestock Ordinance and How to Fix it” (2020) 95 Chi-Kent L Rev 367.

PR Ghandhi “Orthodoxy Affirmed: Hunter and others v. Canary Wharf Ltd and Hunter and others v. London Docklands Development Corporation [1997] 2 All E.R. 426” (1998) 62 Conv 309.

Jeevan Hariharan “The View from the Top: Visual Intrusion as Nuisance in Fearn v Tate Gallery” (2024) 87 MLR 697.

Paul Henty “Dr Mary Fairhurst v Mr Jon Woodard: Lessons in CCTV and data protection” (2022) 11(3) Comp & Risk 8.

Wesley Newcomb Hohfeld “Faulty Analysis in Easement and License Cases” (1917) 27 Yale LJ 66.

Maria Hook “Nuisance and Rylands in need of direction” [2021] NZLJ 229.

Maria Hook “Strict liability in nuisance — a fork in the road” [2021] NZLJ 136.

Maria Hook “The Rylands Compromise” [2023] OtaLawRw 5; (2023) 18 Otago LR 65.

Stephen D Hudson and Douglas N Husak “Legal Rights: How Useful is Hohfeldian Analysis?” (1980) 37 Philos Stud 45.

GAI “Sic Utere Tuo ut Alienum Non Laedas” (1907) 5 Mich L Rev 673.

Jay L Johnson “Acid Rain: Minnesota Remedies” (1983) 1 William Mitchell Envtl LJ 82.

Gregory C Keating “Nuisance as a Strict Liability Wrong” (2012) 4(3)(2) J Tort Law 1.

Richard Kidner “Television Reception and the Tort of Nuisance” (1989) 53 Conv 279.

Richard Kidner “Nuisance and Rights of Property” (1998) 62 Conv 267.

Maria Lee “Visual Intrusion, Public Interests and Private Nuisance: Fearn v Tate” (2023) 82 CLJ 208.

Emma Lees “Fearn v Tate Galleries: Privacy and the law of nuisance” (2021) 23 Env L Rev 49.

Janet Loengard “The Assize of Nuisance: Origins of An Action at Common Law” (1978) 37 CLJ 144.

Ben McFarlane “Property: Duties, Diversity, and Limits” (2022) 33 KLJ 23.

Geoff McLay “The Once and Future Law of Nuisance?” [1997] NZLJ 222.

Francis McManus “Liability in nuisance: Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4” (2023) NILQ 643.

Thomas W Merrill “Trespass, Nuisance, and the Costs of Determining Property Rights” (1985) 14 J Legal Stud 13.

Thomas W Merrill “Property and the Right to Exclude” (1998) 77 Neb L Rev 730.

Thomas W Merrill “The Property Strategy” (2012) 160 U Pa L Rev 2061.

Thomas W Merrill and Henry E Smith “What Happened to Property in Law and Economics?” [2001] YaleLawJl 34; (2001) 111 Yale LJ 357.

Thomas W Merrill and Henry E Smith “The Morality of Property” (2007) 48 Wm & Mary L Rev 1849.

Nancy Hughes Milstone “A Common Law Solution to the Acid Rain Problem” (1986) 20 Val U L Rev 277.

Noga Morag-Levine “The Case of Proclamations (1610), Aldred’s Case (1610), and the Origins of the Sic Utere/Salus Populi Antithesis” (2022) 40 LHR 383.

John Murphy “The Merits of Rylands v Fletcher” (2004) 24 OJLS 643.

David Neild “Nuisance through emanation” [2016] NZLJ 333.

JW Neyers and Jordan Diacur “What (is) a Nuisance? Antrim Truck Centre Ltd v Ontario (Minister of Transportation)” (2011) 90 Can Bar Rev 213.

FH Newark “The Boundaries of Nuisance” (1949) 65 LQR 480.

Donal Nolan “The Distinctiveness of Rylands v Fletcher” (2005) 121 LQR 421.

Donal Nolan “Nuisance and privacy” (2021) 137 LQR 1.

Ben Ohavi “Why Metaphysics Matters: The Case of Property Law” (2024) 43 Law and Philosophy 367.

JE Penner “Nuisance and the Character of the Neighbourhood” (1993) 5 J Envtl L 1.

JE Penner “The “Bundle of Rights” Picture of Property” (1996) 43 UCLA L Rev 711.

Ben Pontin “A room with a view in English nuisance law: exploring modernisation hidden within the ‘textbook tradition’” (2018) 38 Legal Stud 627.

Richard A Posner “The Concept of Corrective Justice in Recent Theories of Tort Law” (1981) 10 JLS 187.

Margaret Jane Radin “The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings” (1988) 88 Colum L Rev 1667.

Cheng Lim Saw and Aaron Yoong “Throwing Stones in Glass Houses: Protecting Privacy under the Law of Nuisance” (2022) 28 Tort L Rev 145.

Joseph A Schremmer “Ad Coelum and the Design of Property Rights” (2023) 9 Texas A&M J of Prop L 707.

Ted Sichelman and Henry E Smith “A network model of legal relations” (2024) 382 Phil Trans R Soc.

Henry E Smith “Exclusion and Property Rules in the Law of Nuisance” (2004) 90 Va L Rev 965.

Henry E Smith “Modularity and Morality in the Law of Torts” (2011) 4(2)(5) J Tort L 1.

Henry E Smith “Property as the Law of Things” (2012) 125 Harv L Rev 1691.

Henry E Smith “The Persistence of System in Property Law” (2015) 163 U Pa L Rev 2055.

Christina Spaulding “Anti-Pornography Laws As A Claim For Equal Respect: Feminism, Liberalism & Community” (1988) 4 Berkeley Women’s LJ 128.

Brandon D Stewart “Contamination as a chemical interference with land: Where the (private nuisance) truck should stop after Antrim” (2015) 23 Tort L Rev 98.

Jeremy Waldron “Homelessness and the Issue of Freedom” (1991) 39 UCLA L Rev 295.

John Wightman “Nuisance – the Environmental Tort? Hunter v Canary Wharf in the House of Lords” (1998) 61 MLR 870.

E Unpublished Works

Michael JR Crawford “The Tort of Nuisance: From the Outside Looking In” (Melbourne University Law Review, Volume 47, No 3, 2024) (forthcoming).

Jordan Grimmer “Untangling our land-based torts: the woes of Wu v Body Corporate 366611” (LLB (Hons) Dissertation, University of Otago, 2015).

Matthew Mazenier “The law of private nuisance following Wu: emanation and access” (LLB (Hons) Dissertation, Victoria University of Wellington, 2013).

Nicholas J McBride “‘A Straightforward Case of Nuisance’: A Note on Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4” (Legal Studies Research Paper Series Paper, University of Cambridge, 2023).

Ryona Winwood “A Path to Reciprocity: Rebalancing the Tort of Private Nuisance after Fearn v Tate Gallery” (LAWS 489 Research Paper, Victoria University of Wellington, 2023).

F Internet Resources

Andy Giddings “Lawyers set out River Wye pollution claim” British Broadcasting Company (online ed, London, 9 July 2024).

“emanate, v.” (March 2024) Oxford English Dictionary <www.oed.com>.

“emanation, n.” (March 2024) Oxford English Dictionary <www.oed.com>.

James Lee and others “Nuisance in the UK Supreme Court” (3 February 2023) Obligations Discussion Group <www.stevehedley.com/odg>.

“Thousands sue PNG miner for environmental damage” Radio New Zealand (online ed, Wellington, 8 February 2020).

Marty Sharpe “Neighbours’ dispute leads to shipping containers blocking sea views” Stuff (online ed, Wellington, 26 March 2024).

Robert Stevens, Donal Nolan and Matthew Hoyle “Nuisance in the UK Supreme Court” (2 February 2023) Obligations Discussion Group <www.stevehedley.com/odg>.

G Other Resources

Christine French “Rylands v Fletcher and Nuisance” in Christine French and Stephen Todd (presenters) Update on Torts (New Zealand Law Society seminar, October 1998) 58.

Smith v Fonterra Co-operative Group Ltd [2022] NZSC Trans 19.

---

^[1] Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2024] 1 AC 1 at [13].
^[2] Parts II–III, below.
^[3] Wu v Body Corporate 366611 [2014] NZSC 137, [2015] 1 NZLR 215 at [124].
^[4] At [125].
^[5] Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134 at [134]–[135] and [165].
^[6] New Zealand courts have mentioned Fearn v Tate Gallery (SC), above n 1, but not as it relates to any emanation requirement: see, for example, Young v Attorney-General [2023] NZSC 142, [2023] 1 NZLR 596 at [90]–[94]; and Simunac v Lu [2024] NZHC 363 at [44]–[47].
^[7] Hunter v Canary Wharf Ltd [1997] 1 AC 655 (HL) at 687 per Lord Goff and 702 per Lord Hoffman and see 726 per Lord Hope; Wu v Body Corporate 366611 (SC), above n 3, at [120], n 100; FH Newark “The Boundaries of Nuisance” (1949) 65 LQR 480 at 482; and see generally Donal Nolan “‘A Tort Against Land’: Private Nuisance as a Property Tort” in Donal Nolan and Andrew Robertson (eds) Rights and Private Law (Hart Publishing, Oxford, 2012) 459.
^[8] See, for example, the formulation in Wu v Body Corporate 366611 (SC), above n 3, at [120].
^[9] See Brandon D Stewart “Contamination as a chemical interference with land: Where the (private nuisance) truck should stop after Antrim” (2015) 23 Tort L Rev 98 at 98–99 (citations omitted).
^[10] See, for example, Fearn v Tate Gallery (SC), above n 1, at [18]–[21] per Lord Leggat JSC.
^[11] St Helens Smelting Co v Tipping (1865) 11 HLC 642 at 650, 11 ER 1483 at 1486 (HL) per Lord Westbury LC.
^[12] Hawkes Bay Protein Ltd v Davidson [2003] 1 NZLR 536 (HC) at [18]; and Colls v Home and Colonial Stores Ltd [1904] AC 179 (HL) at 185 per Earl of Halsbury LC.
^[13] See Christie v Davey [1892] UKLawRpCh 185; [1893] 1 Ch 316 (Ch) at 327–328.
^[14] See Hawkes Bay Protein Ltd v Davidson, above n 12, at [3].
^[15] Hunter v Canary Wharf, above n 7, at 692 per Lord Goff.
^[16] At 707 per Lord Hoffman; and see Nolan, above n 7, at 473–475.
^[17] At 692–695 per Lord Goff.
^[18] See, for example, Sturges v Bridgman [1878] Ch D 852 (CA).
^[19] See, for example, Boatswain v Crawford [1943] NZGazLawRp 7; [1943] NZLR 109 (SC).
^[20] See, for example, Sedleigh-Denfield v O’Callaghan [1940] UKHL 2; [1940] AC 880 (HL) at 895 per Viscount Maugham.
^[21] See, for example, Matheson v Northcote College Board of Governors [1975] 2 NZLR 106 (SC) at 112.
^[22] See, for example, Harris v James (1876) 45 LJQB 545.
^[23] See further RA Buckley The Law of Nuisance (2nd ed, Butterworths, London, 1996) at 92 and following; Richard A Buckley Buckley – The Law of Negligence and Nuisance (5th ed, LexisNexis, London, 2011) at [11.40] and following; Allan Beever The Law of Private Nuisance (Hart Publishing, Oxford, 2013) at 125 and following; and James Goudkamp and Donal Nolan Winfield and Jolowicz on Tort (20th ed, Sweet & Maxwell, London, 2020) at [15-042] and following.
^[24] See, for example, Miller v Jackson [1975] QB 966 (CA) at 980 per Lord Denning MR.
^[25] See, for example, Kraemers v Attorney-General [1966] TASStRp 15; [1966] Tas SR 113 (FC) at 118 per Burbury CJ, 135 per Gibson J and 153 per Neasby J; and see Nolan, above n 7, at 475–476.
^[26] Southport Corp v Esso Petroleum Co Ltd [1953] 3 WLR 773 (QB) at 776; see Esso Petroleum Co Ltd v Southport Corp [1956] 1 AC 218 (HL) at 235 per Earl Jowitt; Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 (QB) at 700–701; but see Southport Corp v Esso Petroleum Co Ltd [1954] EWCA Civ 5; [1954] 2 QB 182 (CA) at 196 per Denning LJ; and Esso Petroleum v Southport (HL) at 241–242 per Lord Radcliffe. This must be correct to avoid anomalies: Buckley Negligence and Nuisance, above n 23, at [11.41]. Moreover, the understanding that this is incorrect flows from an improper application of Sedleigh-Denfield v O’Callaghan, above n 20: Roderick Bagshaw “Private Nuisance by Third Parties” (2000) 8 Tort L Rev 165 at 167.
^[27] See, for example, Clearlite Holdings Ltd v Auckland City Corp [1976] 2 NZLR 729 (SC) at 735–740; and see Bill Atkin “Nuisance” in Stephen Todd (ed) Todd on Torts (9th ed, Thomson Reuters, Wellington, 2023) 579 at [9.2.6(1)].
^[28] See Goudkamp and Nolan, above n 23, at [15-042]; Nicholas J McBride “‘A Straightforward Case of Nuisance’: A Note on Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4” (Legal Studies Research Paper Series Paper, University of Cambridge, 2023) at 8–9; but see Wu v Body Corporate 366611 (SC), above n 3, at [124] citing with approval Robert S Chambers “Nuisance – Judicial Attack on Orthodoxy” [1978] NZLJ 172 at 176; Fearn v Tate Gallery (SC), above n 1, at [9] per Lord Leggat JSC citing with approval Newark, above n 7, at 489 and [158] per Lord Sales JSC.
^[29] Nolan, above n 7, at 476; and Donal Nolan “Nuisance” in Andrew Grubb and Ken Oliphant (eds) The Law of Tort (2nd ed, LexisNexis Butterworths, London, 2007) 1101 at [22.11].
^[30] Wu v Body Corporate 366611 (SC), above n 3, at [122], n 101–103.
^[31] Hunter v Canary Wharf, above n 7, at 685–686 per Lord Goff and see also 700 per Lord Lloyd.
^[32] Fearn v Board of Trustees of the Tate Gallery [2019] EWHC 246 (Ch), [2019] Ch 369 at [167].
^[33] Hunter v Canary Wharf, above n 7, at 700.
^[34] Donal Nolan “Nuisance and privacy” (2021) 137 LQR 1 at 4.
^[35] Part I, Subpart C, above.
^[36] Wu v Body Corporate 366611 (SC), above n 3, at [122]–[123]; and see also Fearn v Tate Gallery (SC), above n 1, at [178] per Lord Sales JSC.
^[37] Wu v Body Corporate 366611 (SC), above n 3, at [123].
^[38] Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42 at [72] citing Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40; and Harbourcity Developments Ltd v Owen HC Auckland CIV-2006-404-1400, 30 March 2007 at [61] citing Varnier v Vector Energy Ltd [2004] NZRMA 193 (HC).
^[39] Nottingham Forest Trustee Ltd v Unison Networks Ltd [2021] NZCA 227, [2021] 3 NZLR 823 at [46]–[47]; and see Unison Networks Ltd v Nottingham Forest Trustee Ltd [2019] NZHC 2280 at [87(b)].
^[40] Matheson v Northcote College, above n 21, at 108–109; and see also Lippiatt v South Gloucestershire Council (1999) EWCA Civ 1151; [2000] QB 51 (CA) at 60 per Evans LJ.
^[41] Williams v Network Rail Infrastructure Ltd [2018] EWCA Civ 1514, [2019] QB 601 at [43] per Sir Terrence Etherton MR; and see Fearn v Tate Gallery (SC), above n 1, at [13] per Lord Leggat JSC.
^[42] But see Wu v Body Corporate 366611 (SC), above n 3, at [26], n 15; Body Corporate 366611 v Wu [2012] NZCA 614, [2013] 3 NZLR 522 at [94], n 82; and Wu v Body Corporate 366611 [2011] NZHC 561; [2011] 2 NZLR 837 (HC) at [31] and [75]. It is unclear whether access was precluded by an electronic impulse that physically invaded the claimant’s land or by reprogramming the key cards themselves.
^[43] Wu v Body Corporate 366611 (SC), above n 3, at [125].
^[44] Part III, below.
^[45] “emanation, n.” (March 2024) Oxford English Dictionary <www.oed.com>; and see “emanate, v.” (March 2024) Oxford English Dictionary <www.oed.com>.
^[46] “emanation, n.” (March 2024) Oxford English Dictionary <www.oed.com> (emphasis added).
^[47] “emanate, v.” (March 2024) Oxford English Dictionary <www.oed.com>.
^[48] Fearn v Tate Gallery (HC), above n 32, at [168(iii)]; see also Jeevan Hariharan “The View from the Top: Visual Intrusion as Nuisance in Fearn v Tate Gallery” (2024) 87 MLR 697 at 706; and Cheng Lim Saw and Aaron Yoong “Throwing Stones in Glass Houses: Protecting Privacy under the Law of Nuisance” (2022) 28 Tort L Rev 145 at 150.
^[49] See Hunter v Canary Wharf, above n 7, at 686 per Lord Goff and 720 per Lord Cooke both citing G v City of Hamburg (1983) 88 BGHZ 344 at 348. The German Civil Code currently precludes a claimant from prohibiting “the introduction of gases, steam, smells, smoke, soot, warmth, noise, vibrations and similar influences emanating from another plot of land to the extent that the influence does not impair the use of their plot of land, or impairs it only to an insignificant extent” (translated and emphasis added): § 906(1), Bürgerliches Gesetzbuch (Germany).
^[50] See Part IV, below.
^[51] The Supreme Court also cited academic commentary consistent with the idea that emanation involves physical invasion: Wu v Body Corporate 366611 (SC), above n 3, at [122], n 100 citing JW Neyers and Jordan Diacur “What (is) a Nuisance? Antrim Truck Centre Ltd v Ontario (Minister of Transportation)” (2011) 90 Can Bar Rev 213 at 219–220.
^[52] At [124] (citations omitted and emphasis added); see also Saw and Yoong, above n 48, at 150; and WVH Rogers Winfield & Jolowicz on Tort (18th ed, Sweet & Maxwell, London 2010) at [14-4], n 59.
^[53] Sedleigh-Denfield v O’Callaghan, above n 20, at 903 per Lord Wright.
^[54] The Supreme Court, in the above passage, cited Herbert Broom, Joseph Gerald Pease and Herbert Chitty A Selection of Legal Maxims, Classified and Illustrated (8th ed, Sweet and Maxwell, London, 1911) at 289. Some sources emphasise that only uses of property injuring the lawful rights of another are caught by the maxim: see, for example, Fontainebleau Hotel Corp v Forty-Five Twenty-Five Inc 114 So 2d 357 (Fla Dist Ct App 1959) at 359. But, if the maxim forms the foundation of the tort of private nuisance (which is itself a metric for lawfulness), this is a tautology: Henry E Smith “Exclusion and Property Rules in the Law of Nuisance” (2004) 90 Va L Rev 965 at 1004.
^[55] David Neild “Nuisance through emanation” [2016] NZLJ 333 at 333–334; and see, for a counterexample, Deane v Clayton [1817] EngR 472; (1817) 7 Taunt 489, 129 ER 196 (Comm Pleas).
^[56] Hunter v Canary Wharf, above n 7, at 685 (emphasis added).
^[57] See Simon Douglas and Ben McFarlane “Defining Property Rights” in James Penner and Henry Smith (eds) Philosophical Foundations of Property Law (Oxford University Press, Oxford, 2013) 219 at 231–232.
^[58] Wu v Body Corporate 366611 (HC), above n 42, at [30] (emphasis added).
^[59] See Part I, Subpart C, above.
^[60] The pre-Hunter, above n 7, cases contain various instances of the use of the word “emanation” used merely identify the origin of the interference: see, for example, Southport v Esso Petroleum (QB), above n 26, at 776; Fortesque v Te Awamutu Borough [1918] NZGazLawRp 201; [1918] NZLR 991 (SC) at 999; Relk Holdings Ltd v Manawatu Wanganui Regional Council HC Hamilton CP172/92, 27 April 1993 at 15–16; and see also Young v Attorney-General [2021] NZHC 463 at [110]. But, for an early example of a use of the word consistent with that in Hunter, see Byrne v Judd [1908] NZLR 1106 (CA) at 1116 per Denniston J: “[i]n what sense can it be said that the non-repair of the breastwork [on the appellant’s land] comes in any way within this definition [of private nuisance]? Nothing emanated from the land of the appellant”.
^[61] Body Corporate 366611 v Wu (CA), above n 42, at [94] (emphasis added).
^[62] Guppys (Bridport) Ltd v Brookling (1984) 14 HLR 1 (EWCA).
^[63] See Fearn v Tate Gallery (SC), above n 1, at [13] per Lord Leggat JSC; and Simon Douglas “The Content of a Freehold: A ‘Right to Use’ Land?” in Nicholas Hopkins (ed) Modern Studies in Property Law vol 7 (Hart Publishing, Oxford, 2013) 359 at 373.
^[64] Thompson-Schwab v Costaki [1956] 1 WLR 335 (CA); and Bank of New Zealand v Greenwood [1983] NZHC 150; [1984] 1 NZLR 525 (HC).
^[65] Fearn v Tate Gallery (SC), above n 1, at [5].
^[66] Fearn v Tate Gallery (HC), above n 32, at [168(ii)] (emphasis added).
^[67] Thompson-Schwab v Costaki, above n 64, at 339.
^[68] See, for example, Roderick Bagshaw “The Edges of Tort Law’s Rights” in Donal Nolan and Andrew Robertson (eds) Rights and Private Law (Hart Publishing, Oxford, 2012) 407 at 419.
^[69] Hunter v Canary Wharf, above n 7, at 685–686 per Lord Goff; and see Thompson-Schwab v Costaki, above n 64, at 337–338 per Lord Evershed MR and 341 per Romer LJ.
^[70] Douglas and McFarlane, above n 57, at 232 (emphasis added); and see Saw and Yoong, above n 48, at 149–150.
^[71] See Bagshaw, above n 68, at 419; and compare Ben Pontin “A room with a view in English nuisance law: exploring modernisation hidden within the ‘textbook tradition’” (2018) 38 Legal Stud 627 at 641.
^[72] Thompson-Schwab v Costaki, above n 64, at 340 (emphasis added).
^[73] At 339 (emphasis added).
^[74] BNZ v Greenwood, above n 64; see also Cosentino v Peter Medich Properties Pty Ltd [2003] NSWSC 606 at [41]; and Zhang v Davies 2017 BCSC 1180, [2017] BCJ No 1350 at [106].
^[75] Christine French “Rylands v Fletcher and Nuisance” in Christine French and Stephen Todd (presenters) Update on Torts (New Zealand Law Society seminar, October 1998) 58 at 70; Hunter v Canary Wharf, above n 7, at 700 per Lord Lloyd; and Fearn v Tate Gallery (SC), above n 1, at [178] per Lord Sales JSC citing Hunter v Canary Wharf, above n 7, per Lord Goff. However, it is not clear that Lord Goff considered BNZ v Greenwood, above n 64, a non-emanation case: see Hunter v Canary Wharf, above n 7, at 685–686; and compare Fearn v Tate Gallery (SC), above n 1, at [77] per Lord Leggat JSC.
^[76] See Karmarkar v Kajol Enterprises Ltd [2024] NZHC 683 at [27] per Robinson J.
^[77] Anglian Water Services Ltd v Crawshaw Robbins & Co Ltd [2001] BLR 173 (EWHC) at [137]; Douglas and McFarlane, above n 57, at 232, n 59; and see Thomas W Merrill “trespass and nuisance” in Peter Newman (ed) The New Palgrave Dictionary of Economics and the Law (Palgrave Macmillan, London, 2002) vol 3 617 at 619.
^[78] See Fearn v Tate Gallery (SC), above n 1, at [16] per Lord Leggat JSC.
^[79] Fearn v Tate Gallery (HC), above n 32, at [178]; see Fearn v Tate Gallery (SC), above n 1, at [12]–[17] per Lord Leggat JSC and [178]–[179] per Lord Sales JSC; and compare John P Jarecki “Privacy in the Panopticon: The Fourth Amendment Case Against Perpetual Surveillance” (2022) 48(1) U Dayton L Rev 41 at 42–43 explaining the “invisible omnipresence” within Jeremy Bentham’s panopticon penitentiary.
^[80] Compare Hunter v Canary Wharf, above n 7.
^[81] Christopher Essert “Nuisance and the Normative Boundaries of Ownership” (2016) 52 Tulsa L Rev 85 at 97; see also Donal Nolan “The Essence of Private Nuisance” in Ben McFarlane and Sinéad Agnew (eds) Modern Studies in Property Law vol 10 (Hart Publishing, Oxford, 2019) 71 at 83.
^[82] Wernke v Halas 600 NE 2d 117 (Ind App, 1992) at 122.
^[83] Compare BNZ v Greenwood, above n 64.
^[84] Wernke v Halas, above n 82, at 121. The Court provided a somewhat different formulation of the threshold test citing Wendt v Kerkhof 594 NE 2d 795 (Ind App, 1992) at 797.
^[85] See Dan B Dobbs The Law of Torts (West Group, Saint Paul (MN), 2001) vol 2 at § 466.
^[86] Hunter v Canary Wharf, above n 7, at 685 (emphasis added).
^[87] At 685 citing Thompson-Schwab v Costaki, above n 64.
^[88] Hunter v Canary Wharf, above n 7, at 686.
^[89] Anglian Water v Crawshaw Robbins, above n 77, at [137].
^[90] At [143].
^[91] Shogunn v Public Transport Authority, above n 38, at [257]–[258] and [275].
^[92] See, for example, Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 (Ch).
^[93] Onus v Telstra Corp Ltd [2011] NSWSC 33 at [148]–[150].
^[94] Harbourcity v Owen, above n 38, at [17] and [61] (emphasis added).
^[95] Wu v Body Corporate 366611 (SC), above n 3, at [122] (emphasis added).
^[96] At [122], n 103.
^[97] BEMA Property Investments Ltd v Body Corporate 366611 [2017] NZCA 281, [2018] 2 NZLR 514 at [57]. The Court made the same point in relation to Lord Goff’s use of the words “generally arise” in Hunter v Canary Wharf, above n 7, at 685. See also Fearn v Tate Gallery (HC), above n 32, at [167].
^[98] See BEMA v Body Corporate 366611, above n 97, at [55].
^[99] Wu v Body Corporate 366611 (SC), above n 3, at [125] (emphasis added).
^[100] BEMA v Body Corporate 366611, above n 97, at [59].
^[101] Compare Wu v Body Corporate 366611 (SC), above n 3, at [122], n 103.
^[102] At [115]–[118] and [132]; and BEMA v Body Corporate 366611, above n 97, at [47], [51]–[53] and [59].
^[103] See Part II, Subpart C, above.
^[104] Nottingham Forest v Unison Networks (CA), above n 39.
^[105] At [47]. By focusing on the physical characteristics of the trees, the Court confirmed that an emanation requirement is concerned with the form, not the origin, of the interference. It (briefly) addressed the question of origin after establishing that the trees were emanations: “the branches that successively fell onto Unison’s line here can be described as emanations from Nottingham Forest’s land where the trees were growing” (emphasis added).
^[106] At [46] and n 44.
^[107] Fearn v Tate Gallery (SC), above n 1, at [12] and see [13]–[17] per Lord Leggat JSC.
^[108] See Part IV, below.
^[109] Fearn v Tate Gallery (SC), above n 1, at [13].
^[110] At [178]–[179] per Lord Sales JSC; and Hunter v Canary Wharf, above n 7, at 685 per Lord Goff (emphasis added).
^[111] See generally Nolan, above n 34.
^[112] Nolan, above n 81, at 79–81.
^[113] Recall that not all cases involving physical invasions are emanation cases: Part II, Subpart D, above.
^[114] See, for example, Neyers and Diacur, above n 51, at 219.
^[115] See, for example, Richard W Wright “Private Nuisance Law: A Window on Substantive Justice” in Donal Nolan and Andrew Robertson (eds) Rights and Private Law (Hart Publishing, Oxford, 2012) 491 at 512.
^[116] McBride, above n 28, at 7.
^[117] Douglas and McFarlane, above n 57, at 223.
^[118] Waugh v Attorney-General [2006] NZHC 352; [2006] 2 NZLR 812 (HC).
^[119] Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987] 2 EGLR 173 (Ch).
^[120] SPAK (1996) Ltd v LeRoy [2022] NZCA 564, (2022) 23 NZCPR 769 at [104].
^[121] Douglas and McFarlane, above n 57, at 231–232.
^[122] Hawkes Bay Protein Ltd v Davidson, above n 12.
^[123] St Helens Smelting Co v Tipping, above n 11.
^[124] Kidman v Page [1959] Qd R 53 (SC).
^[125] Sturges v Bridgman, above n 18.
^[126] Part I, Subpart C, above.
^[127] Douglas and McFarlane, above n 57, at 227–228; Douglas, above n 63, at 370; see also Thomas W Merrill “Property and the Right to Exclude” (1998) 77 Neb L Rev 730 at 741; and Henry E Smith “Property as the Law of Things” (2012) 125 Harv L Rev 1691 at 1704–1705.
^[128] Douglas and McFarlane, above n 57, at 225 and 232; and see further JE Penner “The “Bundle of Rights” Picture of Property” (1996) 43 UCLA L Rev 711 at 743–744.
^[129] Douglas and McFarlane, above n 57, at 226–227.
^[130] At 224.
^[131] See further Wesley Newcomb Hohfeld Fundamental Legal Conceptions as Applied in Judicial Reasoning (Yale University Press, New Haven, 1919).
^[132] But see Part I, Subpart C, above. A dispute does not always arise in this manner.
^[133] That is not to say that, in the absence of emanation, a user of land can commit no wrong: see Douglas and McFarlane, above n 57, at 220–221. Indeed, in New Zealand, we might locate a personal, privacy wrong on the very facts of Fearn, above n 1, notwithstanding that the defendant would be using their land: see generally Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA); C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672; see, in particular, Faesenkloet v Jenkin [2014] NZHC 1637; and see Part V, Subpart C, Section 2, below.
^[134] Hunter v Canary Wharf, above n 7; Wu v Body Corporate 366611 (SC), above n 3; BEMA v Body Corporate 366611, above n 97; and Guppys v Brookling, above n 62.
^[135] See generally James Lee and others “Nuisance in the UK Supreme Court” (3 February 2023) Obligations Discussion Group <www.stevehedley.com/odg>; Hariharan, above n 48, at 705; and Michael JR Crawford “The Tort of Nuisance: From the Outside Looking In” (Melbourne University Law Review, Volume 47, No 3, 2024) (forthcoming) at 2.
^[136] See Crawford, above n 135, at 2.
^[137] See Douglas, above n 63, at 373 saying the same of Guppys v Brookling, above n 62.
^[138] Fearn v Tate Gallery (SC), above n 1, at [13]; compare generally Nolan, above n 81.
^[139] See Hunter v Canary Wharf, above n 7, at 685 per Lord Goff, 709–710 per Lord Hoffman and 726 per Lord Hope.
^[140] Thompson-Schwab v Costaki, above n 64; BEMA v Body Corporate 366611, above n 97; Guppys v Brookling, above n 62; Torquay Hotel v Cousins, above n 92; and see also, for example, Hubbard v Pitt [1976] QB 142 (CA).
^[141] Nolan, above n 7, at 467; see also Fearn v Tate Gallery (SC), above n 1, at [13].
^[142] Essert, above n 81, at 96–97; and see Wernke v Halas, above n 82.
^[143] Bagshaw, above n 68, at 418; see also Hariharan, above n 48, 705–706; and BEMA v Body Corporate 366611, above n 97, at [55]. Note that “energy transfers” are capable of constituting emanations: see Part II, Subparts A and D, above.
^[144] See Part II, Subpart B, above.
^[145] R Buckley “Nuisance, Rylands v Fletcher and Similar Liabilities” in Andrew Tettenborn and others (eds) Clerk & Lindsell on Torts (24th ed, Sweet & Maxwell, London, 2023) 1387 at [19-08].
^[146] Robinson v Kilvert [1889] UKLawRpCh 47; (1889) 41 Ch D 88 (CA) at 94 per Cotton LJ and 96 per Lindley LJ; Sanders-Clark v Grosvenor Mansions Co Ltd [1900] UKLawRpCh 109; [1900] 2 Ch 373 (Ch) at 374; Reinhardt v Mentasti [1889] UKLawRpCh 140; (1889) 42 Ch D 685 (Ch) at 687; and Cosentino v Peter Medich Properties, above n 74, at [41].
^[147] Dublin (South) City Market Co v McCabes Ltd [1953] IR 283 (HC) at 311.
^[148] See Hunter v Canary Wharf, above n 7, at 685–686 per Lord Goff and 700 per Lord Lloyd; and Wu v Body Corporate 366611 (SC), above n 3, at [122].
^[149] Essert, above n 81, at 96.
^[150] James Y Stern “What Is the Right to Exclude and Why Does It Matter?” in James Penner and Michael Otsuka (eds) Property Theory: Legal and Political Perspectives (Cambridge University Press, Cambridge, 2018) 38 at 46.
^[151] Richard A Epstein “Nuisance Law: Corrective Justice and Its Utilitarian Constraints” (1979) 8 J Legal Stud 49 at 53.
^[152] See Laura S Underkuffler The Idea of Property – Its Meaning and Power (Oxford University Press, Oxford, 2003) at 21–24.
^[153] Scholars have described the shape in various, informal ways: see, for example, Essert, above n 81, at 95, n 48 (“spherical sector”); Thomas W Merrill, Henry E Smith and Dennis Patterson (ed) The Oxford Introductions to US Law: Property (Oxford University Press, Oxford, 2010) at 31 (“column or carrot of space”); and Douglas, above n 63, at 368 (“vertical column”). It is best described as the space enclosed by a nappe of the conical surface defined by the centre of the Earth and the closed boundary curve: see Alphonse A Adler The Theory of Engineering Drawing (D Van Nostrand Co, New York, 1912) at 166.
^[154] We can limit the ability of each of a community of proprietors to exercise their rights against other members of the community: see Merrill, above n 127, at 750; Smith, above n 54, at 987–988; and Wu v Body Corporate 366611 (SC), above n 3, at [116]. Also, the ceiling of a proprietor’s right is effectively limited, and I therefore say that the ad coelum rule effectively distributes space to zero people beyond the lower airspace: see Bernstein of Leigh (Baron) v Skyviews & General Ltd [1975] QB 479 (QB) at 488; and Henry E Smith “The Persistence of System in Property Law” (2015) 163 U Pa L Rev 2055 at 2080.
^[155] Merrill and Smith, above n 153, at 31; see Ted Sichelman and Henry E Smith “A network model of legal relations” (2024) 382 Phil Trans R Soc at 10–11; Douglas, above n 63, at 368; and Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35, [2011] 1 AC 380 at [6] and [14].
^[156] Ellis v Loftus Iron Co [1874] UKLawRpCP 81; (1874) LR 10 CP 10 (Comm Pleas) at 12 per Lord Coleridge CJ.
^[157] See Epstein, above n 151, at 53; and Thomas W Merrill and Henry E Smith “What Happened to Property in Law and Economics?” [2001] YaleLawJl 34; (2001) 111 Yale LJ 357 at 395.
^[158] Smith, above n 127, at 1706 referring to the “things defined by” the right to exclude (emphasis added).
^[159] Christian von Bar and Jason Grant Allen (tr) Foundations of Property Law: Things as Objects of Property Rights (Oxford University Press, Oxford, 2023) at [7.8].
^[160] See generally Douglas and McFarlane, above n 57.
^[161] See Essert, above n, at 94–96 describing the “intuitive appeal” of the physical invasion view.
^[162] Epstein, above n 151, at 53.
^[163] Part I, Subpart C, above.
^[164] McBride, above n 28, at 7.
^[165] Ben Ohavi “Why Metaphysics Matters: The Case of Property Law” (2024) 43 Law and Philosophy 367 at 379 (emphasis added); and see also Sichelman and Smith, above n 155, at 11.
^[166] Essert, above n 81, at 107, n 115; see Sichelman and Smith, above n 155, at 10; and see also Hunter v Canary Wharf, above n 7, at 723 per Lord Hope.
^[167] Sturges v Bridgman, above n 18.
^[168] Thompson-Schwab v Costaki, above n 64; and see Part II, Subpart D, Secti0n 1, above.
^[169] See Part IV, Subpart A, Section 2, above.
^[170] Essert, above n 81, at 109, n 126.
^[171] See generally Merrill, above n 127.
^[172] Thomas W Merrill “Trespass, Nuisance, and the Costs of Determining Property Rights” (1985) 14 J Legal Stud 13 at 14.
^[173] Douglas and McFarlane, above n 57, at 225–226; Douglas, above n 63, at 369; see also Wright, above n 115, at 510–511; and Epstein, above n 151, at 53.
^[174] Merrill, above n 172, at 28–29.
^[175] At 14 and see 29; and see Merrill, above n 77, at 619.
^[176] Merrill, above n 172, at 34 (emphasis added). Supposedly, these low transaction cost scenarios, coupled with trespass’ simple rules, permit communities to maximise welfare themselves. Intangible invasions do not share these characteristics and so supposedly lend themselves better to a post hoc evaluation under the guise of a private nuisance enquiry: see generally Merrill, above n 172; and Merrill, above n 77.
^[177] See, for example, Neyers and Diacur, above n 51, at 235.
^[178] Douglas, above n 63, at 369.
^[179] I borrow this phrase from Smith, above n 154, at 2079.
^[180] Merrill, above n 172, at 14; Merrill, above n 77, at 617; and see also Neyers and Diacur, above n 51, at 219–220.
^[181] Atkin, above n 27, at [9.2.1].
^[182] BEMA v Body Corporate 366611, above n 97, at [59]; and see Wu v Body Corporate 366611 (SC), above n 3, at [132].
^[183] See, for example, Nolan, above n 7, at 481.
^[184] Nottingham Forest v Unison Networks (CA), above n 39, at [45].
^[185] Compare Guppys v Brookling, above n 62; and Wu v Body Corporate 366611 (SC), above n 3.
^[186] Austin v Rentrezi 2 Ltd [2021] NZHC 1027, (2021) 23 NZCPR 77 at [81]–[97].
^[187] Nolan, above n 7, at 481. Nolan’s distinction is not flawless: Nolan, above n 81, at 84–85. In particular, it is circular given it relies on lawfulness to determine the applicable standard of lawfulness. The superior metric in relation to the second principle might be the extent to which the defendant controls the thing: see Nicholas J McBride and Roderick Bagshaw Tort Law (6th ed, Pearson, Harlow (UK), 2018) at 381–383.
^[188] Hunter v Canary Wharf, above n 7, at 685.
^[189] Wright, above n 115, at 512 (emphasis added); and see also Neyers and Diacur, above n 51, at 220.
^[190] I borrow Nolan’s use of the term “neat”: see Nolan, above n 7, at 467; and see also Geoff McLay “The Once and Future Law of Nuisance?” [1997] NZLJ 222 at 225.
^[191] Epstein, above n 151, at 77–78; and see also Essert, above n 81, at 99–100.
^[192] Such a right may be the effect of the Supreme Court’s majority decision in Fearn v Tate Gallery (SC), above n 1: compare Fairhouse v Woodward CC Oxford G00MK61, 12 October 2022 at [129] following Fearn v Board of Trustees of the Tate Gallery [2020] EWCA Civ 104, [2020] Ch 621 at [74]; see Hariharan, above n 48, at 706; and Paul Henty “Dr Mary Fairhurst v Mr Jon Woodard: Lessons in CCTV and data protection” (2022) 11(3) Comp & Risk 8 at 11.
^[193] See Nolan, above n 7, at 465.
^[194] See Essert, above n 81, at 98.
^[195] Nolan, above n 7, at 466–467.
^[196] Part II, Subpart A, above.
^[197] Buckley, above n 145, at [19-08]; BEMA v Body Corporate 366611, above n 97, at [58], n 72; and Neild, above n 55, at 335–336.
^[198] Guppys v Brookling, above n 62.
^[199] Hunter v Canary Wharf, above n 7.
^[200] That is, it is more apt to ask whether an interest against any particular non-emanatory interference constitutes a “natural right”, one that can only be acquired or a “no right” such that “[i]n carrying out that ranking, the courts consider both the gravity of the threat which the type of interference in question poses to potential claimants’ security interests, and the extent to which granting protection against this type of interference would threaten the freedom of action of potential defendants”: Nolan, above n 7, at 467.
^[201] I borrow this formulation from Essert, above n 81, at 95.
^[202] Thompson-Schwab v Costaki, above n 64; Fearn v Tate Gallery (SC), above n 1; BEMA v Body Corporate 366611, above n 97; and Guppys v Brookling, above n 62.
^[203] Part III, Subpart B, above.
^[204] Fearn v Tate Gallery (SC), above n 1, at [12] per Lord Leggat JSC.
^[205] I use “neighbours” in the sense of two people who hold nearby land; compare Donoghue v Stevenson [1932] AC 562 (HL) at 580–581 per Lord Atkin; and see Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321 at [29] per Lord Cooke. If we adopt Lord Atkin’s terminology, we might nonetheless describe land and tortfeasors within a neighbourhood circumscribed by private nuisance “neighbours” for the purposes of private nuisance, but this is liable to confuse.
^[206] Essert, above n 81, at 107.
^[207] JE Penner Property Rights: A Re-Examination (Oxford University Press, Oxford, 2020) at 148–149 and following.
^[208] Nolan, above n 81, at 73–78.
^[209] Beever, above n 23, at 22–25 and see 43–45; and compare Fearn v Tate Gallery (SC), above n 1, at [24] and [35] per Lord Leggat JSC.
^[210] See Penner, above n 207, at 143–148.
^[211] Essert, above n 81, at 87–88; Penner, above n 207, at 144; see generally Nolan, above n 81; and Nolan, above n 7, at 466–467.
^[212] See further Stern, above n 150, at 59 and following.
^[213] BEMA v Body Corporate 366611, above n 97, at [54].
^[214] Bagshaw, above n 68, at 418.
^[215] At 418.
^[216] Part IV, Subpart A, Section 2, above.
^[217] Thompson-Schwab v Costaki, above n 64; Laws v Florinplace Ltd [1981] 1 All ER 659 (Ch); and see also Mark v Department of Fish and Wildlife 974 P 2d 716 (Or App 2004).
^[218] Bagshaw, above n 68, at 419; and see Part II, Subpart D, above.
^[219] See Roderick Bagshaw “Private Nuisance: The UK Supreme Court Take a View” (2023) 16 J Tort Law 173 at 176–177, n 12.
^[220] Merrill, above n 172, at 34.
^[221] See Fearn v Tate Gallery (SC), above n 1, at [212] per Lord Sales JSC; and McBride, above n 28, at 7.
^[222] See Shelley Geiszler “Nuisance Most Fowl: The Problem with Chicago’s Permissive Livestock Ordinance and How to Fix it” (2020) 95 Chi-Kent L Rev 367 at 388.
^[223] See Richard A Epstein Torts (Aspen Law & Business, New York, 1999) at § 14.5.
^[224] Nottingham Forest v Unison Networks (CA), above n 39.
^[225] Matheson v Northcote College, above n 21.
^[226] See Merrill, above n 172, at 34. He, of course, suggests that the invasions by these entities may only be trespasses: see Part IV, Subpart C, Section 1, above.
^[227] BNZ v Greenwood, above n 64; and Matheson v Northcote College, above n 21.
^[228] Matheson v Northcote College, above n 21, at 112.
^[229] In particular, the literature considers invasion by acid rain. Nancy Hughes Milstone “A Common Law Solution to the Acid Rain Problem” (1986) 20 Val U L Rev 277 at 278–279 and 288; Jay L Johnson “Acid Rain: Minnesota Remedies” (1983) 1 William Mitchell Envtl LJ 82 at 97–98; see generally Timothy Crawford “The Problems of Causation in Private Legal Remedies for Damage from Acid Rain” (1984) 17 Nat Resources Law 413; compare Smith v Fonterra, above n 5, at [153]–[167]; and see also Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16, [2024] AC 595 at [7]. Note that in Smith, the Supreme Court reinstated the appellant’s claim in public nuisance. In Jalla, the parties disagreed on whether an oil spill more than 100 km from the claimants’ land caused the accumulation of oil on the claimants’ land. Provided the claimants can establish causation, emanation implies physical proximity.
^[230] Bagshaw, above n 26, at 167; see also Lippiatt v South Gloucestershire, above n 40, at 65 per Sir Christopher Staughton; and Goudkamp and Nolan, above n 23, at [15-042].
^[231] We return to this in Part V, Subpart C, Section 3, below.
^[232] Thompson-Schwab v Costaki, above n 64.
^[233] This appears to be Bagshaw’s primary consideration: see Bagshaw, above n 68, at 419.
^[234] We return to this question in Part V, Subpart C, Section 1, below.
^[235] See Thompson-Schwab v Costaki, above n 64, at 339 per Lord Evershed MR and 342 per Romer LJ; and Laws v Florinplace, above n 217, at 665–666.
^[236] But see Newell v Izzard [1944] 3 DLR 118 (NBSC) at 124. Chief Justice Baxter issued an injunction in relation to the defendant’s business simply attracting “loose and disorderly persons”. The description ought to be in relation to those loose and disorderly things—the use of vile language and sexual misconduct, for example—occurring in proximity to the claimant’s land: see 122.
^[237] Laws v Florinplace, above n 217, at 662–663 and 667.
^[238] Richard Kidner “Nuisance and Rights of Property” (1998) 62 Conv 267 at 278. Note that Kidner characterised the conduct of the defendants in both Costaki, above n 64, and Florinplace, above n 217, as being “mere presence”, but the complaint was that the defendants were, in fact, doing something undesirable (having immoral sex or vending pornography).
^[239] Laws v Florinplace, above n 217, at 666–667.
^[240] Douglas and McFarlane, above n 57, at 236.
^[241] Cases in relation to the liability of non-servient owners are not common, but see, for example, Paine & Co Ltd v St Neots Gas & Coke Co [1939] 3 All ER 812 (CA); Balfour Beatty Group Ltd v Persons Unknown [2022] EWHC 874 (QB); High Speed Two (HS2) Ltd v Persons Unknown [2022] EWHC 2360 (KB) at [86]; Island Gas Ltd v Persons Unknown [2018] EWHC 3743 (Ch) at [3(2)] and [58]; and Ineos Upstream Ltd v Persons Unknown [2017] EWHC 2945 (Ch) at [106].
^[242] Paine v St Neots Gas, above n 241, at 823 per Luxmoore LJ.
^[243] Douglas and McFarlane, above n 57, at 236; and see Wesley Newcomb Hohfeld “Faulty Analysis in Easement and License Cases” (1917) 27 Yale LJ 66 at 71–72.
^[244] Pettey v Parsons [1914] UKLawRpCh 92; [1914] 2 Ch 653 (CA) at 662 per Lord Cozens-Hardy MR.
^[245] Douglas and McFarlane, above n 57, at 236. In New Zealand, it might be that an assessment is made of the impact of the claimant’s use of the dominant tenement, except where the easement is in gross, which precludes such an assessment: see DW McMorland McMorland on Easements, Covenants and Licences (5th ed, LexisNexis, Wellington, 2023).
^[246] See Douglas and McFarlane, above n 57, at 236, n 70; and see Part II, Subpart B, above.
^[247] In addition to the following, see Penner, above n 207, at 144, n 23; and John Baker An Introduction to English Legal History (5th ed, Oxford University Press, Oxford, 2019) at 451 and following.
^[248] Wall v Collins [2009] EWHC 2100 (Ch) at [33]; compare Guppys v Brookling, above n 62; and see Penner, above n 207, at 144.
^[249] Balfour Beatty v Persons Unknown, above n 241, at [41] and [72].
^[250] See Part II, Subpart D, Section 1, above.
^[251] See Douglas and McFarlane, above n 57, at 236; and Part V, Subpart C, Section 2, below.
^[252] Guppys v Brookling, above n 62; and see Part III, Subpart A, above.
^[253] Waterman v Boyle [2009] EWCA Civ 115, [2009] 2 EGLR 7 at [20].
^[254] See Part V, Subpart A, above.
^[255] Wu v Body Corporate 366611 (SC), above n 3.
^[256] BEMA v Body Corporate 366611, above n 97, at [57].
^[257] Body Corporate 366611 v Wu (CA), above n 42, at [94].
^[258] Note that this raises the issue of whether the interference originated from the claimant’s land, being the common property. The Court of Appeal’s analysis on this point is persuasive, concluding that the defendant’s “interest in the common property is quite distinct from that of Mr Wu in his individual unit”: Body Corporate 366611 v Wu (CA), above n 42, at [97(a)].
^[259] Wu v Body Corporate 366611 (HC), above n 42, at [31]. The same issue referred to, above n 258, arises.
^[260] Fearn v Tate Gallery (SC), above n 1, at [212].
^[261] At [2].
^[262] At [158] per Lord Sales JSC; and see Part I, Subpart C, above.
^[263] For example, if the defendant flew “hot air balloons from the street outside the Tate Modern” (emphasis added): McBride, above n 28, at 8. See further Jalla v Shell, above n 229, at [2] and [47]–[49] per Lord Burrows JSC with whom Lord Sales JSC, amongst the unanimous panel, agreed. That a private nuisance may be committed from the sea was assumed true, but it was not addressed due to procedural defects.
^[264] Essert, above n 81, at 102.
^[265] See Jeremy Waldron “Homelessness and the Issue of Freedom” (1991) 39 UCLA L Rev 295 at 305; and RH Coase “The Problem of Social Cost” (1960) 3 JLE 1 at 2.
^[266] Thompson-Schwab v Costaki, above n 64.
^[267] Waldron, above n 265, at 296 and see 302; see Essert, above n 81, at 102; and Christopher Essert “Property and Homelessness” (2016) 44 Phil & Pub Aff 266 at 275.
^[268] Part V, Subpart A, above.
^[269] See Part V, Subpart B, above.
^[270] Coase, above n 265, at 2; and see Essert, above n 81, at 104.
^[271] Coase, above n 265, at 22 and following.
^[272] Part I, Subpart C, above.
^[273] Cambridge Water Co v Eastern Counties Leather plc [1993] UKHL 12; [1994] 2 AC 264 (HL) at 299 per Lord Goff; Lawrence v Fen Tigers Ltd [2014] UKSC 13, [2014] AC 822. at [5] per Lord Neuberger PSC; and Fearn v Tate Gallery (SC), above n 1, at [211] per Lord Sales JSC.
^[274] Part I, Subpart C, above.
^[275] See Part V, Subpart A, above.
^[276] Shogunn v Public Transport Authority, above n 38, at [261(10)] (emphasis added) and see also [271].
^[277] At [261(11)].
^[278] Hunter v Canary Wharf, above n 7, at 710.
^[279] McBride, above n 28, at 7.
^[280] See Merrill, above n 172, at 22.
^[281] See Nolan, above n 7, at 467, n 49, asking “[i]s a phone call an ‘emanation’?” The answer is ‘no’, because the physical thing transmitted through the boundary cannot be a private nuisance by itself: see Part II, Subpart D, Section 2, above.
^[282] Hunter v Canary Wharf, above n 7, at 691 citing Khorasandjian v Bush [1993] EWCA Civ 18; [1993] QB 727 (CA).
^[283] McLay, above n 190, at 224.
^[284] See Fearn v Tate Gallery (SC), above n 1, at [112] per Lord Leggat JSC and [204] per Lord Sales JSC; and, in relation to emanation cases, see Newark, above n 7, at 488–489.
^[285] Compare Christie v Davey, above n 13. Note that the claimant in Christie was similarly “targeted” because the defendant acted with malice.
^[286] Compare Christie v Davey, above n 13; and Thompson-Schwab v Costaki, above n 64.
^[287] Where, as in Christie v Davey, above n 13, or Khorasandjian v Bush, above n 282, the claimant themselves is “targeted”, the targeting may form some relationship that sets the scene for harms to the claimant in their capacity as a person: see, for example, Wright, above n 115, at 514 on malicious injury. But it is the existence of physical proximity to the affected land which implies that an injury caused by an interference is one against the claimant in their capacity as, perhaps amongst others, a proprietor.
^[288] Henry E Smith “Modularity and Morality in the Law of Torts” (2011) 4(2)(5) J Tort L 1 at 30; and see further von Bar, above n 159, at [7.1]–[7.10].
^[289] See Smith, above n 288, at 1; and Smith, above n 54, at 978 and 984.
^[290] Smith, above n 54, at 984.
^[291] See generally Smith, above n 127; and Douglas and McFarlane, above n 57, at 239.
^[292] See further Sichelman and Smith, above n 155, at 10–11.
^[293] Fearn v Tate Gallery (SC), above n 1, at [38] and following per Lord Leggat JSC (but note that his Lordship preferred to not use the language of reasonableness: see [18]–[21]) and Lord Sales JSC at [165] and following; Hawkes Bay Protein Ltd v Davidson, above n 12, at [3] and [16]–[23]; see BEMA v Body Corporate 366611, above n 97, at [47]; Sturges v Bridgman, above n 18, at 865; and see also Beever, above n 23, at 29–33.
^[294] See Part V, Subpart C, Section 1, above.
^[295] See Thomas W Merrill and Henry E Smith “The Morality of Property” (2007) 48 Wm & Mary L Rev 1849 at 1853–1857. However, they make this point in relation to rights to exclude. The general theme of this Part is that notions of physical proximity extrapolate the benefits of the physical invasion view.
^[296] But see Christina Spaulding “Anti-Pornography Laws As A Claim For Equal Respect: Feminism, Liberalism & Community” (1988) 4 Berkeley Women’s LJ 128; and compare Laws v Florinplace, above n 217. The general treatment of pornography is distinct from its treatment by the law of private nuisance.
^[297] Hunter v Canary Wharf, above n 7; Fearn v Tate Gallery (SC), above n 1; and Wu v Body Corporate 366611 (SC), above n 3.
^[298] Part III, Subpart B, above.
^[299] Tandem Properties Ltd v Sheffield City Council [2024] EWHC 1926 (Ch) at [86]–[90].
^[300] Hariharan, above n 48, at 713.
^[301] This is a variation of the facts of Fairhouse v Woodward, above n 192.