I. Introduction
The place of public interests is at the core of some of the most central divisions in the way we understand tort law.Footnote 1 It is also an enormous topic, conceptually and descriptively, engaging both a potentially vast reservoir of tort law, and a considerable literature on the meaning and status of the “collective” and the “public”. In this paper, I focus on private nuisance. Not only does this create a manageable set of cases, but, as indicated by the Supreme Court decision in Coventry v Lawrence,Footnote 2 private nuisance raises keenly and explicitly the relationship between the collective (or public) and the individual (or private), as well as the relative place of courts and other public authorities in the development of this relationship.Footnote 3
The next section introduces the debate around public interests in tort, which is intense. But, whilst there is considerable scholarly interest in the place of public interests and public institutions in private law, there has been relatively little detailed exploration of how we might identify, in any particular context, a defensible vision of public interest for the purposes of tort. This article attempts to begin to fill that gap. The collective and public interests at issue in tort are contested and plural, and not easily separated from private or individual interests. The private nuisance cases discussed in section III suggest both that the public interest is ubiquitous in private nuisance, and that the courts do not define clearly how they identify those elements of the public interest that merit their consideration. After this introduction to the case law, I then turn to some of the broader literature on public and collective interests, reaching the conclusion that the approaches and definitions that are favoured in other areas of scholarship are not easily transferable to tort. Indeed, this discussion tends if anything to confirm the absence of any single, context-free distinction between “public” and “private”.Footnote 4 This absence of any stable or widely accepted approach to defining public interests, or to distinguishing between public and private, creates difficulties for understanding private nuisance. Collective interests are both pervasive and influential, and yet are not easily or predictably identified or evaluated.
This suggests a need to reflect on how we might assess public interests in private nuisance. The courts frequently turn to administrative decision-making for evidence of where the public interest lies in particular circumstances. Normatively, this may be an effort to sidestep the courts' relative (to regulators) constitutional and institutional limitations; and pragmatically, regulation can provide important evidence of where the public interest lies. But this turn to external norms is not straightforward. Whilst they cannot easily ignore the authority of external markers of where the public interest lies, private law courts should not simply defer across the board to regulatory pronouncements. The fifth and sixth sections of this paper assess the role that regulation does and could play in the identification of public interests in private nuisance. A careful consideration in private law of the process by which collective interests have been assessed by regulators might contribute to a more nuanced understanding of collective interests in private nuisance, whilst also maintaining the distinctive authority of private nuisance in a heavily regulated world.
This paper begins to articulate a methodology for critically exploring collective and public interests in tort, advocating a more open and reflective consideration of the problems. For the avoidance of doubt, my argument is not that a more or less reliably identified “public interest” should be relentlessly pursued by the courts, or should be decisive in private nuisance. My argument is rather that the courts currently take public interests into account and, this being so, it is necessary to reflect on how we can be more confident in our identification of the public interest, when a range of plausible and sometimes competing public interests is at stake. Given the perennial conceptual and practical difficulties involved in efforts to reconcile or understand public and private, there are bound to be challenges associated with any effort to pin this down. Without any claim to finality, the penultimate section of this article attempts to respond to two more obvious concerns.
II. Private and Public in Tort
It is a necessary starting point for this article that there are such categories as “public” and “private”, and that these categories can be helpful.Footnote 5 But they are rarely decisive, and are contested, dynamic, and context-specific, as well as overlapping and difficult to separate. The ambition here is to enhance our ability to talk about public and collective interests, notwithstanding this complexity. As discussed further in the next two sections, one of the challenges addressed in this article is the difficulty (even impossibility) of defining public or collective interests in the abstract, or of distinguishing public from private, collective from individual, in any neutral or universal way.Footnote 6 Rather than a vain attempt to identify an all-purpose definition of the public interest, this article begins to work out a methodology for identifying and evaluating the public interests claimed in tort, acknowledging (even embracing) the fluidity implicit in “the” public/private divide. An attempt to provide a sharp definition would be unhelpful, but it is worth clarifying that the language of public (or collective) interests is used here, broadly, to refer to interests that transcend any individual or narrow group (“narrow” being itself context-specific) and, importantly for current purposes, that are formally external to the parties or the dispute. Fine distinctions could be drawn between “collective” and “public” interests,Footnote 7 but the terms are used inter-changeably here. Not only does that have benefits of inclusiveness, but it also signals the resonance of these ideas beyond the debate on the public/private divide, and whatever they are called by the courts.
The place of public or collective interests in tort is, as suggested in the introduction, at the heart of apparently insurmountable divides in tort law scholarship. What follows is only a brief outline of a sophisticated debate, but identifying broad themes might help in the discussion that follows.Footnote 8 So, on one side, influential voices assert that private law really is “private”, and that the consideration of collective interests in tort is simply illegitimate.Footnote 9 Allan Beever has made perhaps the most detailed and insistent argument along these “fundamentalist”Footnote 10 lines in respect of private nuisance.Footnote 11 He argues that nuisance cases should be decided by placing competing property rights in a hierarchy, without reference to external concerns. This is to be achieved by determining “how fundamental to the conception of property the parties' uses are, not how socially valuable they are”.Footnote 12 This is not the place to go back to first principles on the role of tort, but it should be clear that Beever's understanding of private nuisance is incompatible with the approach taken here. Whilst the idea that we might identify uses that are “fundamental” to our conception of property is not unattractive, and to say that the courts lay down rules over time is unobjectionable, when we work through criteria to identify more “fundamental” land uses, some of those criteria are likely to be “external” to the parties and the law of tort.Footnote 13 Beever argues that the correct conception of property is not “found in the heads of laymen, political philosophers, economists or the like”, but is “held by those experienced in law, in particular, of course, in the laws of tort and property”.Footnote 14 Unless we identify these “experienced” individuals very narrowly, it is difficult to see how this really avoids engaging with the physical and social complexity of “land”,Footnote 15 as well as with contested and diverse approaches to property as dynamically composed of more or less public and private aspects.Footnote 16
This intensely “private” private law scholarship is at least in part a responseFootnote 17 to an equally single-minded set of scholarship, largely confined to the US, which sees the sole purpose of tort as the pursuit of efficiency.Footnote 18 The extreme manifestations of this approach attribute no independent internal normative values to tort, and the rights and interests of the parties are secondary to the pursuit of “public welfare”. One of the attractions of taking “economic efficiency” as the overall goal is its attempt to remain neutral between competing interests, rather than prioritising any particular aspect of public welfare. But tort certainly pursues social ends on this approach, by contrast with those for whom “the purpose of private law is to be private law”.Footnote 19 The divide over public interests in tort also plays out in terms of the legitimacy of “policy” in tort, with our first group of scholars urging resistance to the “contemporary reflex to appeal to public policy concerns”.Footnote 20
A further, valuable body of scholarship examines the role of tort in the instrumental pursuit of a whole range of social ends.Footnote 21 Questions of compensation and deterrence figure significantly in negligence, and environmental protection is an important example in the case of private nuisance.Footnote 22 The relative priority of different claimed public interests is contested and, even if the legitimacy of a single goal such as environmental protection is accepted, that does not provide any easy answers as to where the public interest lies in any particular case. This loose third category of literature is significantly composed of scholarship that, broadly, seeks to reconcile the internal demands of tort, including its correlative structure and the centrality of justice between the parties, with broader collective considerations. The relative emphasis on public or private varies in this immense and diverse literature, as does the normative support for the presence of collective interests.
There is of course an extensive literature, and much internal subtlety and variation, within all three of these approaches. Whilst each offers valuable insights, neither of the extreme visions is a particularly accurate representation of (English) tort law as it is, and their normative desirability is controversial. The scholarship that I have placed in my third category is messy and diverse, and suggests that tort may not be amenable to any single overarching theoretical framework. For current purposes, the cases certainly suggest that whilst tort focuses on the rights and interests of the two parties before the court, “tort law rightly does not treat individuals as ‘islands unto themselves', but as social creatures”.Footnote 23 The resolution of tort cases will have impacts beyond the parties to litigation, extending beyond precedent setting effects. Courts often speculate on these broader impacts, and sometimes clearly take them into account.Footnote 24 And not surprisingly, in the cases, as discussed in the next section, parties claim a whole range of “public interests” to assist them.
Even if disagreement between scholars about the proper role of public or collective interests in tort is intractable, it is important to consider how the courts set about determining the content of collective interests, and how that might be improved. This article attempts to explore how we might identify and characterise collective interests in any particular private law situation. This is a surprisingly neglected issue, lost in the gap between apparently self-evident broad values, and the absolute denial of the significance of public interests. It is possible to discipline the unruliness of public interests, to provide a better (if still imperfect) way of evaluating the claims made in tort. To repeat, this does not mean that public interests should be the dominant concern of tort. Indeed, just as a more confident articulation of those interests may mean that they can bear more weight, so a more critical engagement may mean that what are otherwise claimed as weighty collective concerns, can be more confidently dismissed in tort.
III. The Public Interest in Private Nuisance
Other areas of tort law could fruitfully be examined for the place of public interests: the open criteria for the identification of a duty of care in negligence allow public interest questions to be raisedFootnote 25; broader interests often feature in the assessment of faultFootnote 26; Tomlinson emphasises the relevance of public interests under statuteFootnote 27; and defamation has historically organised certain defences around questions of public interest.Footnote 28 Nor is the public interest question unique to tort law. Property scholarship, for example, is also concerned with the blurred and shifting lines between public and private, and the ways in which the public and the collective, constitute or constrain “private” rights.Footnote 29 No doubt public interests manifest differently in different areas and, whilst I hope that lessons from private nuisance are helpful elsewhere, there may not be a simple read across.
This section is built around four House of Lords/Supreme Court decisions that have contributed a great deal to the shape of private nuisance during its renaissance over the past quarter of a century: Cambridge Water v Eastern Counties Leather Footnote 30; Hunter v Canary Wharf Footnote 31; Marcic v Thames Water Utilities Footnote 32; and Coventry v Lawrence.Footnote 33 The claims in Hunter, Cambridge Water, and Marcic were described as seeking novel extensions of the existing law; for current purposes, the most important novelty of Coventry was the defendant's argument that its planning permission precluded liability. My intention is to use these cases (touching on others) to explore the ways in which the courts talk, or do not talk, about collective interests. I am not suggesting that we can dredge a “definition” of the public interest from these cases; on the contrary, they demonstrate how elusive such a definition is. The cases do however confirm the significance of the public interest to private nuisance. The ubiquity of the public interest, along with its opaque meaning, in turn suggests that we may need to look somewhere other than the case law for criteria by which to evaluate the assertion of public interests in tort. I return to that below.
Collective interests are easily glimpsed on all sides of tort disputes, but are most often raised in private nuisance cases by defendants; there is little sign of collective interests (such as environmental protection) being used to justify enhanced protection of claimants (or local environments). For obvious reasons, the cases in which the courts or the parties explicitly raise collective or public interests provide most meat for current purposes. Many cases, probably the majority in purely quantitative terms, however, contain little or no reference to broader interests. Sometimes, the issue may simply not arise, but the courts may sometimes take account of community interests “even where those interests stand passively in the background”.Footnote 34
A. The Cases in Brief
Our four cases raise a good range of the sorts of public interests that we might expect to see in nuisance, including relatively banal local recreational and commercial interests (Coventry), high profile national economic policy (Hunter), employment opportunities provided by industry (Cambridge Water), and distribution of the burdens of supporting public infrastructure (Marcic).
Taking the cases in reverse chronological order, the defendants in Coventry had planning permission for the use of their land in motor sports, subject to a slightly complicated history of temporary permissions, changes in the extent of the activity, and certificates of lawful use. The claimants were local residents who complained in nuisance about the noise of the motor racing, and were successful in their appeal on liability to the Supreme Court.
The phrase “public interest” saturates the speeches, but there is no real discussion of the nature of the public interests at stake, beyond an assumption that the public interest is articulated through the planning system. Lord Neuberger, giving the leading judgment, indirectly (although not explicitly) suggested that “political and economic” questions are irrelevant to “the assessment of whether a particular activity constitutes a nuisance”,Footnote 35 in the course of an insistence that “the mere fact that the activity which is said to give rise to the nuisance has the benefit of a planning permission is normally of no assistance to the defendant”.Footnote 36 Lord Carnwath took a more nuanced approach to the relevance of planning permission than the majority, highlighting the diversity of administrative decision-making, and suggesting that an across the board approach to the role of planning permission in private nuisance may not be sustainable.Footnote 37 Consistently with the flexibility offered by the language of “mere fact” and “normally”, Lord Neuberger explicitly acknowledged the possibility of the “exceptional case” in which planning permission will be a consideration in assessing liability.Footnote 38 He also agreed that “the terms of a planning permission could be of some relevance in a nuisance case”, when very detailed terms (for example as to the appropriate times of day for a particular activity) are used as a “starting point” in the analysis of reasonable use.Footnote 39 Some flexibility for the relevance of planning permission (and impliedly the public interest) to liability in nuisance survives Coventry. By contrast with a certain irresolution on the relevance of public interest to liability, the Supreme Court enthusiastically and unanimously grasped the opportunity to endorse the relevance of the public interest to remedies: “As for the … problem … of public interest, I find it hard to see how there could be any circumstances in which it arose and could not, as a matter of law, be a relevant factor” in deciding whether to award a successful claimant damages or an injunction.Footnote 40 In turn, “the grant of planning permission … may provide strong support for the contention that the activity is of benefit to the public”.Footnote 41 The Supreme Court in Coventry did not attempt to explore the public interests that it undoubtedly thought were at stake in the case. Contenders include employment, benefits for those “using or enjoying the stadium”, and “the benefits of motor sports to young people whose skills were mechanical rather than academic or who needed to ‘blow off’ their energies away from public roads”.Footnote 42 But, to reiterate the point raised above, we cannot look to this decision for a definition of the “public interest”. We may, however, note that the public interest, in this case as expressed and determined through the planning system, is potentially significant in private nuisance litigation.
The claimant in Marcic suffered “repeated and extreme” external flooding from the defendant's sewerage system over a number of years.Footnote 43 The House of Lords held that the statutory arrangements for sewerage providers left “no room in this case for a common law cause of action in nuisance”.Footnote 44 The interpretation of the Water Industry Act 1991, and its provision of an alternative (although in this case ineffective) remedy through a statutory complaints process, was important in this decision, but Marcic also teaches us a great deal about the place of public interests in private nuisance.Footnote 45 Concern about broader interests was central to the restrictive approach taken by the House of Lords. The relatively few customers who suffer flooding were set against “all the other customers of the company”,Footnote 46 who would have to meet the cost of additional infrastructure: the “expenditure can be met only by charges paid by consumers. Is it in the public interest that they should have to pay more?”Footnote 47 The private property interests of the claimant (and others in his position) are seen as in conflict with a very plausible public interest in low-cost water and drainage services. Under the statutory scheme, the regulator “will look at the position of an individual householder but in the context of the wider considerations spelled out in the statute”.Footnote 48
The dispute in Marcic could just as easily be conceptualised in terms of contested understandings of the public interest, and competing approaches to public policy, as in terms of public versus private interest. Increased investment in sewerage infrastructure protects the environment and amenity, as well as private property, and there are competing public interests in low-cost sewerage services and freedom from flooding and pollution. Moreover, the public interest in water and drainage services is very tightly entwined with the profit-making activities of the plc defendant. In this respect, the approach of the House of Lords, which described the defendant as “no ordinary occupier of land”,Footnote 49 can be contrasted with the Court of Appeal, which saw the defendant's sewers as “part of a system which Thames are operating as a commercial venture in order to make profits for their shareholders”.Footnote 50
The litigation in Hunter arose in the context of the wholesale physical, economic, and social transformation of London Docklands, in a process of regeneration supported by central Government, but which revolved around private property development.Footnote 51 Two key legal issues were before the House of Lords: whether loss of television signals can amount to a private nuisance; and whether an interest in property is necessary to bring a claim in private nuisance. The loss of television signals in this case did not constitute a private nuisance (although the possibility that it may in other cases was left open), since the mere presence of a building was held to be a reasonable use of land. Secondly, overturning the approach of the Court of Appeal, private nuisance was held to be a tort against property, such that a proprietary interest in land is necessary to bring an action.
The House of Lords in Hunter said relatively little explicitly about public interests, other than in Lord Hoffmann's representation of the planning system as a conveyor of the public interest. But competing visions of community and competing value judgments as to what constitutes a successful economy were central to the contested development process at the heart of the litigation.Footnote 52 Regeneration was explicitly carried out in the national rather than the local economic interest.Footnote 53 Resistance at the local level was coupled with the quite deliberate and explicit exclusion from decision-making of local communities and representatives, who were officially characterised as “somewhat parochial”, and as looking “too much to the past and too exclusively to the aspirations of the existing population”.Footnote 54 We might understand Hunter, at least in part, as a contribution to an effort to assert local community interests against national economic interests pursued through the development process. Private nuisance was unable to explore the nature of these spatially divided public interests. The Court also rejected the opportunity to address the broader interests that might be captured by conceptualising nuisance in terms of more expansive relationships with land than the purely proprietary.Footnote 55
Factories were once the paradigmatic nuisance defendant, but are now relatively rare in the law reports. Cambridge Water is perhaps the most high profile relatively recent nuisance action against an industrial activity.Footnote 56 The defendant, located in Sawston, Cambridgeshire, used organic chemicals in its leather treatment process. Over many years, it spilled a large volume of those chemicals, in small amounts, onto the concrete floor of the tannery. The chemicals percolated through the floor, entered the aquifer under the defendant's land, and travelled the 1.3 miles to the claimant's borehole. Regulatory changes in the early 1980s meant that the presence of the chemical rendered the claimant's water “unwholesome”, and no longer suitable for supply as drinking water. Cambridge Water sought the costs of relocating its water supply. Lord Goff defined the rule in Rylands v Fletcher as part of the tort of private nuisance; an absence of reasonable foreseeability meant that the defendants were not liable.
Perhaps prefiguring the disinclination to discuss competing public interests in Hunter, Lord Goff attempted to draw lines around the relevance, under the rule in Rylands v Fletcher,Footnote 57 of any “public benefit” associated with the defendant's activity. The Privy Council in Rickards v Lothian had said that “such a use as is proper for the general benefit of the community” would not raise Rylands strict liability, since such a use would necessarily fall outside the “non-natural user” test.Footnote 58 This formulation was used in many cases to exclude industrial operations from the scope of Rylands, including at first instance in Cambridge Water: Ian Kennedy J. held that “Sawston is properly described as an industrial village, and the creation of employment is clearly for the benefit of that community”, such that “this storage in this place is a natural use of land”.Footnote 59 Whilst accepting that the “general benefit of the community” criterion could be workable if limited to the “local community”, and “such matters as, for example, the provision of services”, Lord Goff was concerned that “if the words are extended to embrace the wider interests of the local community, or the general benefit of the community at large, it is difficult to see how the exception can be kept within reasonable bounds”.Footnote 60 He concluded that “the creation of employment as such” cannot allow an activity to be categorised as a natural or ordinary use of land.Footnote 61
B. Interests in Nuisance: Preliminary Thoughts
The nature of collective and public interests varies, and there are no simple conclusions to be drawn from the cases. Two particular elements of “public interest” stand out in these cases: economic development (and the tension between economic development and environmental protection) and “public service” infrastructure. The significance of a polluting industry's contribution to general economic welfare is a long-standing debate in private nuisance. In the nineteenth-century cases, economic development was pitted against “the interest in conserving the land and preserving time-honoured uses”.Footnote 62 The key compromise between industrial and agrarian interests was wrought in private nuisance by distinguishing between physical harm and amenity harm, and by the application to the latter of the locality doctrine, said in St. Helens Smelting Co. v Tipping to be “for the benefit of the inhabitants of the town and of the public at large”.Footnote 63 The interests competing with economic development might now be more readily conceptualised as environmental and, even in the mid-nineteenth century, urban air and water quality were public health concerns. Environmental protection, which would tend in most (not allFootnote 64) cases to emphasise the claimant's interests over the defendant's, receives little attention in our cases. Lord Goff, for example, described Cambridge Water as being “concerned with environmental pollution”,Footnote 65 but expressed confidence that this could be left to the legislature: “given that much well-informed and carefully structured legislation is now being put in place for this purpose, there is less need for the courts to develop a common law principle to achieve the same end.”Footnote 66 This deference to the (silent) legislator is not unusual, albeit far from consistent.Footnote 67
The contribution of Cambridge Water to the debate about the priority of economic development was to reject the possibility that “the creation of employment as such” is adequate to categorise an activity as a natural or ordinary use of land, such as to take the defendant beyond the reach of Rylands v Fletcher strict liability.Footnote 68 Employment is now a common way of expressing collective interests in economic development, of trying to speak across political and ideological divides about the economy. And, whilst GDP is increasingly challenged as a single measure of “success”,Footnote 69 economic growth is a public interest that is largely taken for granted in political discourse. Lord Goff did not say that employment is always irrelevant in private nuisance, simply that it does not in itself take an activity outside Rylands v Fletcher. This debate, implicitly or explicitly, is likely to remain a central area of contention.Footnote 70
Moving on to the question of public service infrastructure, by contrast with what he said about employment, Lord Goff did apparently leave open the possibility of excluding local service providers from Rylands strict liability on the basis that benefit to the “local community” takes the activity out of the scope of “non-natural use”.Footnote 71 Lord Goff's emphasis on the “local” avoids questions about the spatial scope of the community, such as arise in respect of the competing communities in the background of Hunter. In fact, a community hosting infrastructure is generally unlikely to reap the whole (or even any) of the benefit associated with that infrastructure. Many of the environmental and social costs of infrastructure development are spatially concentrated (sometimes balanced by benefits such as employment), whilst social, economic, and environmental benefits are often diffuse, and financial profits in private hands may leave the area. This unevenness is a common feature of private nuisance claims, and is of course at the centre of Marcic. Similarly, in Barr v Biffa Waste Services, an action by 152 households in respect of odour from a landfill site,Footnote 72 the local community (in Ware) bore considerable burdens. But, apparently, the site received large quantities of London's wasteFootnote 73 and the “pre-treatment” of waste, which was what created the particularly noxious odours, was supposed to increase the possibility of recycling, in the more diffuse interests of resource conservation. Other infrastructure, such as electricity generation, raises similar issues of benefit and burden, further complicated by the shift of environmental burdens from town to countryFootnote 74 as urban services are electrified (historically lighting and heating, but the electrification of activities such as transport in the interests of climate change mitigation is likely to increase demand for generating capacity). The environmental benefits of generating electricity from renewable resources such as wind are largely global and postponed, adding a further dimension. We might conclude that categorising public service infrastructure as simply in “the public interest” or for “the general benefit of the community” (which it may well be) sidesteps a much more complex picture, even the very conflict at stake in the litigation.
Finally, Marcic was the only one of our four decisions in which resource distribution issues were explicitly thought to be significant. Lord Hoffmann conceptualised the case as one about “the capital expenditure of a statutory undertaking providing public utilities on a large scale. The matter is no longer confined to the parties to the action”.Footnote 75 The courts are not universally opposed to interfering with resource decisions,Footnote 76 and there are almost always financial consequences to litigation. The reference to resources emphasises the questions of constitutional competence and institutional competence discussed below: who is best placed to distribute these resources.
The contested nature of the public interest is unlikely to have been lost on the courts, and is one good reason for a certain reluctance to engage with public interests. And, indeed, the cases and textbooks often rehearse the basic proposition that “public benefit” is no defence to the tort of private nuisance. But that is far from saying that collective interests play no role in defining the parties' rights. Similarly, the recurring assertion that administrative permits cannot appropriate individual rights does not tell us what those rights look like when land uses are incompatible. Nor is it clear how a judicial reluctance to engage with collective interests would play out: in Marcic, by subjugating nuisance to the statutory account of the public interest; in Cambridge Water, on the contrary, by attempting to assert the independence of Rylands v Fletcher from presumed collective interests.
Most importantly, the question of public interest pervades the cases. Trying to ignore the collective interests in the background of private nuisance litigation, or ruling their consideration out of bounds to judges, is probably unsustainable. Even Coventry, which suggests that the compromise between public interest and private right will most often be sought in remedies rather than liability, leaves space for collective judgments as to reasonable use of land (so liability), not to mention that strong role for the public interest when deciding between an award of injunction or damages.Footnote 77 The absence of any clear definition of the public interest in the case law suggests, however, that we need to look elsewhere for a considered approach to their identification.
IV. Collective Interests beyond Tort
Collective and public interests are virtually always contestable if not contested, in their detail if not in broad outline. An activity might create jobs and taxes, as well as air pollution and associated amenity, environmental and health burdens. Simply calling on a high-level shared value, such as environmental protection, is not a particularly helpful way to identify collective interests in tort. That value competes with other collective interests, for example economic development, and is internally contested (as indeed is economic development), given competing and incompatible environmental objectives and priorities. Even clean air, often discussed in the literature below as a self-evident example of a collective or public interest, is not straightforward.Footnote 78 Everyone in principle has an interest, albeit of varying weight, in unpolluted air. Some, however (using “interest” in the everyday sense in which it is used by the courts), have a competing and possibly greater interest in polluting the air. The divide created by this competing interest is starkly apparent in a private nuisance dispute. Polluting defendants generally pollute the air breathed by other people (although the division between victim and perpetrator may not be clean cut). In any event, the meaning of “clean” air is not self-evident, and the level of pollution that is reasonable or acceptable is likely to be precisely the point of contention in tort.
Literature on rights has engaged a little more than tort scholarship with the identification of collective interests. The discussion of collective or public interests appears in various contexts, including as the thing against which rights are assertedFootnote 79 and the necessary constituting background to autonomy,Footnote 80 as well as in discussion of the feasibility and nature of “group” or collective rights.Footnote 81 My intention is not to contribute to the debate on the moral or legal reality of collective rights and interests, but simply to explore any insights provided by the rich literature into the nature of public and collective interests. Two main approaches present themselves: collective interests as the interests held by groups, rather than individuals, and the “collective goods” themselves.Footnote 82
Claimants in private nuisance are sometimes collective agents of sorts. Local authorities may be understood as standing for certain community interests, although private nuisance limits them to the assertion of their property rights, and the scope to use nuisance to pursue regulatory objectives directly is probably limited in English law.Footnote 83 Less formally, Ben Pontin notes the “fuzzy boundaries” between the private rights of the claimant (Sir Charles Bowyer Adderley) in Attorney General v Birmingham, and his representation of 27,000 tenants “within a residual feudal framework”, and of the local community as Member of Parliament.Footnote 84 Public interest groups such as nature conservation organisations may also be promising carriers of a particular aspect of the public interest. There are few signs of conservation groups pursuing private nuisance through the courts to assert environmental interests, although the proud history of the angling societies is often cited, and their current activities remind us of the importance of unreported settlements.Footnote 85 Group litigation in private nuisance may also be tentatively conceptualised as bringing a collective agent to court. Formally, group litigation is simply a way to allow for the management of common issues of fact or law in a collection of individual claims.Footnote 86 But it is plausible that the group might also represent something greater than, or distinct from, the sum of its parts, some version of the local or community interest. Any claim to such representation is likely to be contested, as indicated for example by the witness statements for the defence from local residents in Anslow v Norton Aluminium Footnote 87 (a claim for odour, noise, and smoke nuisances against an aluminium foundry), and by the dynamic and divided nature of “the” local community in Hunter. Footnote 88 Nevertheless, Hunter is especially suggestive. Whilst it could not form the basis of a private nuisance claim, if we understand Hunter as a form of protest, the litigation gave a public voice to a community that may have considered itself to be under grave threat.
Purported collective agents in private nuisance are most frequently external to the litigation, generally as amorphous, poorly defined groups: “other customers” in Marcic, the local community in the background of Hunter and also present in Cambridge Water, employees in Cambridge Water and in Coventry, along with spectators of and participants in motor sports in the latter case. Whilst they might provide some insight into the ways in which collective interests find their way into tort cases, collective agents tell us relatively little about how to identify and discriminate between contested public interests.
When we turn to the substantive content of collective goods (rather than collective agents), the language of “public goods” is often used. In a strict economic sense, public goods are both non-rival (one person's consumption does not reduce the good's availability) and non-excludable (no one can realistically be excluded from the enjoyment of the good). Leaving to one side the possible public goods provided by the maintenance of a legal system and property rights, national security in Dennis v Ministry of Defence is probably the only genuinely public good that plays a strong role in recent private nuisance cases. The public interest in the training of Ministry of Defence pilots formed an important and explicit backdrop to the decision, and Buckley J. saw “no objection in principle to taking that public interest into account, in one way or another, in deciding what is best to be done”.Footnote 89 True public goods are so few and far betweenFootnote 90 that they are not likely to be of much assistance in discriminating between the sorts of collective interests at stake in tort. “Impure” public goods, which are either non-excludable or non-rival,Footnote 91 are more common, and in private nuisance those goods are likely to be public to a particular community, rather than to the world. The language of public goods becomes very loose, and does not provide much support for our analysis of collective and public interests in tort.
The issue of collective production is another way of thinking about collective interests.Footnote 92 A focus on production, however, is not likely to capture a sufficient range of the public interest, since even genuinely public (let alone impure public) goods are not always collectively produced.Footnote 93 Moreover, although complicated by important sources of communal support, the collective interests discussed in each of our four key cases are in the final instance privately produced for profit. But, even if not apparently especially discriminating for tort, this idea of goods that depend upon some sort of common endeavour for their production does resonate with the heavy burden being borne by regulatory decisions or legislation in the cases, discussed below.
The collective interest in tort will often amount to an aggregation of individual interests, although not necessarily in the sense that “the” collective interest equates with the majority view; the often disputed identity of the relevant community may make majorities difficult to define in any case. Most things are probably ultimately capable of expression in individualised terms, but an aggregation of individual interests may fail to capture comfortably everything that is of collective concern.Footnote 94 For example, in the case of clean air, we may be concerned about harm to the non-human environment, the resources available to future generations, and distributive questions associated with the disproportionate impact of air pollution on the young, the old, and the sick. The line drawn between public and private nuisance seems to acknowledge the possible coexistence of aggregative and distinctive collective interests. Public nuisance can be identified by a “sufficiently large collection of private nuisances”.Footnote 95 But the individual nuisances need to have been suffered in some sense “in common” rather than individually: for example, racially offensive material sent through the post and received by even large numbers of individuals, as individuals, does not have the requisite public element.Footnote 96 The classic cases of public nuisance that affect “the community, members of the public as a whole, rather than merely individuals” are the obstruction of the public highway and of publicly navigable rivers.Footnote 97 Lord Rodger in Rimmington described the statement in PYA Quarries that a public nuisance is one “so widespread in its range or so indiscriminate in its effect” that action should be “the responsibility of the community at large”,Footnote 98 as being about “the effect of the public nuisance on the community, rather than the other way round”.Footnote 99
The earlier discussion of the cases suggests that the courts have not defined their approach to the public interest clearly. The work discussed in this section underlines how diverse the approach might be. None of the approaches discussed here would be self-evidently inappropriate in tort, but choosing between them may have quite different effects. This suggests that insisting on any single abstract understanding or definition of the public interest is unlikely to be very helpful, at least in tort. But the courts continue to refer to and to consider the public interest in their judgments. Perhaps the answer to the conundrum might be found in a case-by-case analysis of the substantive content of the public interest. But, whilst what is in the public interest is ultimately a substantive matter, I doubt that the courts generally have the capacity to assess diverse and competing claims of public interest in substantive terms: most would agree that a public sewerage system is a good thing, for example, but precisely how effective it needs to be, who should pay, and how much, raises competing, equally plausible public interest claims and high economic stakes. The social, political, and economic complexity of judgments on the public interest is behind much of the scholarly and judicial suspicion of the public interest.
In the absence of abstract definitions or substantive methodologies, we must look elsewhere for a defensible vision of the public interest. The courts often turn to external actors who are tasked with identifying and pursuing the public interest, including especially regulators.
V. Regulation and Collective Interests
The assumption that collective interests can be found in the voice of the legislature and/or regulator is casually perennial in the literature, reinforced by the approach to regulatory contexts in some of the cases discussed above. Given the elusiveness of top-down definitions of the public interest, and the challenges courts face in deciding for themselves where the public interest lies, this is a sensible step, pragmatically and normatively. To assert that the role of regulation is to pursue “the” collective or public interest would be strongly debated in regulatory scholarship, where the wealth of possible public and private purposes and capabilities is as diverse as in tort.Footnote 100 Nevertheless, it is relatively orthodox to propose that one of the roles of the state is to pursue collective ends and, with appropriate caution, it does seem to be a reasonably coherent starting point for current purposes. Not only does this approach meet with the assumptions of the courts that regulation “[denotes] a standard of what is acceptable in the community”Footnote 101 or “may provide strong support for the contention that the activity is of benefit to the public”,Footnote 102 but a regulatory process of some sort will almost always have been applied to any activity challenged in private nuisance.Footnote 103 I am not suggesting, as will be clear below, that regulators provide some single, correct, and universally applicable vision of the public interest. In particular, this turn to regulation should certainly not imply an automatic deference to administrative decisions in tort cases. But regulation may be an expression of collective values (including substantive values, for example of safety or environmental protection) arrived at and expressed through democratic processes, including public deliberation as well as representation; or the regulatory decisions may have been taken on the basis of knowledge and expertise, in such a way as to make a defensible case for having identified a version of the “best” overall result. Both the constitutional and the institutional competence of the court, relative to external authorities, may thus be at stake.
The public interest, as expressed in regulatory decisions, most often enters private nuisance via an argument that since the defendant's activity has been authorised by the state, imposing liability, or awarding an injunction, would be contrary to the public interest as identified in that process. Private property rights can look like a “feeble justification” for the neglect of important common endeavours.Footnote 104 But this is far from straightforward, since, on the other hand, tort law defines and asserts the rights and interests of individuals and, even if regulators have made the very best determination of what the public interest requires, individual rights and interests may need to be protected. The long tradition of protecting the rights of individuals in the face of the powerful state, which is not always either benign or effective,Footnote 105 remains urgent. Where we stand on this will depend in part on ideology, as well as on the ideologies that we perceive to dominate administrative and judicial decision-making.Footnote 106 But even crudely ideological or instrumental positions, disregarding all of tort's internal values, could not allow for generalisations in this area: judicial intervention through the protection of private rights in property may disrupt the prior allocation of burdens and benefits in a way that improves or worsens our own preferred approach to the public interest. Some ambivalence about whether the individual should be protected from the collective, or vice versa, is inevitable.
In part, this ambivalence is a recognition that regulation can fall short in its efforts to discover and promote collective and public values. We glimpse ad hoc regulatory problems in the background of many of the cases. The trial judge in Anslow v Norton Aluminium rehearsed over many pages the long-running efforts of the Environment Agency to bring the defendant into compliance.Footnote 107 The trial judge in Barr v Biffa criticised the Environment Agency for its “rather pusillanimous attitude”, and simultaneously the defendants for placing “intolerable pressure” on inspectors, taking “an unnecessarily aggressive attitude to anyone who threatens their commercial interests” and being “quite prepared to adopt a bullying attitude in order to get what they want”.Footnote 108 That Barr was the case in which the High Court saw fit to introduce what amounted to a defence of compliance with a permit (thankfully overturned by the Court of Appeal) is striking. Whilst there is something counterintuitive about leaving private individuals to face up to aggressive commercial defendants without the help of the state, when public authorities are unable or unwilling to set or enforce adequate standards, the ability of private law to re-open regulatory judgments can make a positive contribution to the collective, as well as to the individual, interest.Footnote 109
Whilst a little less clear than Anslow and Barr, members of the House of Lords in both Hunter and Marcic commented that the system had in some way let the claimants down. In Marcic, “matters plainly went awry”; it “cannot be acceptable that … there was still no prospect of the necessary work being carried out for the foreseeable future. At times Thames Water handled Mr. Marcic's complaint in a tardy and insensitive fashion”.Footnote 110 In Hunter, Lord Hoffmann observed that “the plaintiffs may well feel that their personal convenience was temporarily sacrificed to the national interest” and also that local views “were liable to be overridden” in the planning process.Footnote 111 In both cases, the House of Lords nonetheless asserted its confidence in the ability of the regulators to determine the public interest. Close examination of Marcic and Hunter reveal questionable representations of the relevant regulatory scheme, and a certain over-confidence in the ability of regulators to identify a more or less consensual, or at least defensible, version of the public interest. Similarly, in Coventry, Lord Neuberger's assertion that “no doubt all planning applications take into account the public interest” is at one level true, but also a little undiscriminating.Footnote 112
In Marcic, identifying a “fair system of priorities” and “balancing many intangible factors” seemed to Lord Nicholls to be a “matter inherently more suited for a decision by the independent regulator than by a Court”.Footnote 113 But we might at least be concerned about the paucity of the information with which Ofwat (the regulator) and the water companies were working.Footnote 114 Sewerage flooding of the outside of properties (like the claimant's garden) was not a priority for Ofwat at the relevant time. That may turn out to have been a perfectly sensible policy choice, but neither Ofwat nor the defendant was gathering the data that could provide any confidence on that. There are real questions about whether the interests of those in the position of the claimant (suffering frequent external foul water flooding) had been part of the “public interest” assessment by the regulator or the defendant. In Hunter, similarly, the House of Lords placed its faith in planning law and “the expert forum” of the planning inquiry as a way to assess and assert the public interest. But, importantly, the Canary Wharf development was excluded from normal planning law in order to encourage property-led regeneration. Local people and their local representatives were, as mentioned above, characterised as inimical to development in the national interest, and deliberately sidelined in decision-making. The Court was clearly aware of this context, but seemed to prefer to discuss a planning process in which “people living in the vicinity of a development” are protected, the “issues” are “debated”, and experts are engaged.Footnote 115
A turn to regulation to identify the collective interests that should have a voice in tort claims is both visible in the cases and defensible. Nevertheless, the discussion in this section suggests that the courts have good reason to be cautious about any automatic adoption of administrative standards. Some additional criteria, allowing for discrimination between external norms on something other than an ad hoc basis, are needed.
VI. Scrutinising Regulation and Evaluating Collective Interests
In any particular case, public and collective interests are contested and plural, and difficult to isolate from individual interests. The courts' heavy reliance in this respect on the role of regulation and/or statute in identifying collective interests is both pragmatic, and borne out of concerns for institutional competence and constitutional propriety. But regulation is extraordinarily diverse, in its design and its execution, and it cannot be the case that any regulatory statement always identifies the public interest with sufficient authority to carry normative weight in tort. Importantly, moreover, it is perfectly plausible that non-state processes, for example the participatory elaboration of collective interests by developers or public interest groups, might effectively indicate the identity of certain collective interests, without a formal stamp of approval from the state. Not all regulation is “public”. Nor does “public” regulation easily disaggregate the public from the private, the collective from the individual. Without any suggestion of regulatory failure, the regulated industry is deeply involved in setting the norms according to which it is regulated, at all levels (local, national, EU, international), for some very good reasons (especially information asymmetry), but with varying levels of protection for other interests.Footnote 116 Similarly, the planning system routinely relies heavily on high levels of private sector involvement, in a market-led, resource-constrained system.Footnote 117
Especially given the courts' occasional haste on the matter, it might be useful to explore in a little more detail what it is about regulation (or other external forums) that speaks to collective interests, and why the normative authority of regulation in tort might vary. In this respect, questions of process come to the fore, again in part because of the difficulty of drawing substantive distinctions between different ideas of the public interest, raised above. That is not to say that process and substance are easily separated, and it may not always be clear whether a particular approach or rule is substantive or procedural. Some sense of our substantive ends may tell us a great deal about what constitutes “good” process, and some important areas of regulation rest implicitly on the assumption that process (for example an obligation to consider, consult, and explain) affects substantive outcomes.Footnote 118 But, nevertheless, when the courts seek to assess the public interest, they are most adept with process rather than substance.
The statutory authority defence in nuisance is the clearest and most absolute approach to “public benefit” in private nuisance. It is often rationalised on the basis of the constitutional and democratic authority of Parliament to abrogate individual property rights, alongside questions of institutional competence, the assumption that “the legislature balanced the evils and inconveniences”.Footnote 119 Turning back to the more general discussion here, the influence of collective interests in tort might properly vary according to two similar factors: whether they have been assessed by a good collective process (constitutional competence), and whether they have been assessed in an expert-informed process in possession of the data and knowledge relevant to the issues before the court (institutional competence). Essentially, whilst no single criterion can be decisive, the quality of the process by which the public interest has been determined may influence the identification and definition of public interests in tort.
If account is taken of collective interests because they have been assessed in a process deserving of consideration on constitutional grounds, or a process that approximates a robust reflection of collective values, we might reasonably expect some examination of who was involved in that decision, and whose interests were taken into account. Much regulation provides rights to local people and others to be (at least) consulted in advance of decisions. These were the rights conspicuously downgraded in Hunter and the Court might have asked whether that should affect its confidence in the ability of the planning system to reach the best decision. Even if intact, what these rights to “public participation” mean in practice can vary enormously. An active process, involving a range of affected individuals and organisations, as well as experts and those concerned with particular interests such as environmental protection, may deliberate in such a way that a fairly robust picture of collective interests as understood by the relevant (spatial and/or interest) community emerges. But there are all sorts of reasons (including the high costs of participation for individuals, a debate conducted in highly technical terms, a lack of appreciation of how individual interests might be affectedFootnote 120), for a relative absence of “ordinary” publics in regulation. This is not necessarily problematic in its own terms, but may affect what can be claimed for the process. Similarly, if the courts take into account the public interest because it has been determined by an expert process, we might expect them to consider the expertise and information available to and used by the decision-maker, and what the decision itself purported to do. It will often be true that the court will not make a “better” decision than the expert regulator did (although of course regulators are no better than the courts at determining property rights or allocation, if that is what we decide is at stake).Footnote 121 But, if the argument, as in Marcic, turns in part on the regulator's superior ability to carry out a cost–benefit analysis,Footnote 122 we might enquire whether a cost–benefit analysis (or in other cases, a general weighing of pros and cons) was in fact carried out, and whether the decision-maker engaged reasonably with the interests of most relevance to the litigation. Some of the issues at the heart of the private nuisance claim may not have been adequately before the decision-maker.Footnote 123
This sort of examination, of who has articulated a claimed collective interest, and on what grounds, could help to provide a legitimate place for the consideration of collective interests in nuisance, without requiring private law necessarily to defer to normative claims made elsewhere. Moreover, the courts' approach in a number of cases suggests that relying on process as a way of distinguishing between claims would not be an extraordinary move. Whilst he does not explicitly explore questions of process, Lord Neuberger in Coventry does suggest that the award of planning permission would “have real force” in the decision as to whether to award an injunction or damages “in cases where it was clear that the planning activity had been reasonably and fairly influenced by the public benefit of the activity”.Footnote 124 In Wheeler v Saunders, the claimants challenged foul smells from a pig farm in private nuisance; the defendants argued that because they had obtained planning permission for the pig sheds, any smell from the pigs living in them could not amount to a nuisance. In the words of Peter Gibson L.J.: “If the justification for [deferring to planning permission] is that the local planning authority would already have balanced the relevant competing interests, that justification would not appear to apply in the present case.”Footnote 125 In Coventry, Lord Carnwath doubted whether the planning decisions at stake in Wheeler and Watson v Croft Promo-Sport (another case about noise from motor sports)Footnote 126 “could be regarded as reflecting a considered assessment by the authorities concerned of the appropriate balance between public and private interests”.Footnote 127 Both Hunter and Marcic raised the question of superior regulatory processes, although the courts might usefully have explored the limits of the actual regulatory process as a source of authority.
To be clear, there is no need to go so far as establishing “regulatory failure” to reject the proposition that the public interest in the defendant's activity should be a relevant factor in private nuisance. Moreover, a regulatory process may work exactly as intended, and still fall short in certain respects (as was arguably the case in Hunter).Footnote 128 Nor should demands for perfect regulation be made, if only because there is no such thing as a perfect process. The question is whether we have a sufficiently robust picture of the collective or public interest for that interest to be confidently taken into account in private nuisance.
VII. Some Challenges
This article is a modest effort to think harder about how we might improve the call on interests that are formally external to the parties to a tort dispute. But the deep divisions in tort law, outlined in section II above, mean that any such discussion is likely to be controversial. Notwithstanding the difficulty of actually bridging the divide, two particular concerns should be addressed.
First, we cannot expect too much in the way of analysis of regulatory theory and practice in a tort claim, and demands on counsel and courts are legitimate concerns. Detailed empirical work will always be sensibly constrained by the need for proportionality in adjudication. Public and private law cannot, however, be neatly separated, and we should at least be able to explain why a particular conceptualisation of the public interest does or does not deserve attention in private law. This is in part a simple demand that litigants' public interest claims be substantiated. And we should certainly hope to see some attention paid to the empirical reality of a regulatory scheme when weight is being placed on that scheme, or indeed when that scheme is to be disrupted, by tort. Nor, as suggested in the previous section, is this alien territory for private nuisance. Indeed, the amount we learn about the planning process from the three levels of judicial decision in Coventry v Lawrence indicates the role that regulatory records can already play in tort.
A second concern, which needs to be taken seriously, is that the propositions in this article risk leading to the expropriation or taking of property. As an aside, this question may be less urgent if the public interest is taken into account at the remedies rather than the liability stage of private nuisance, given that compensation would then be available. This may be where much of the action, after Coventry v Lawrence, takes place. But, even in respect of liability, more substantive comments can be made.
First, importantly, the argument here is not that regulation is a “defence” to private nuisance.Footnote 129 On the contrary, the argument is that public interests are already taken into account, and that a more robust (if imperfect) way of evaluating them is both necessary and available. At the risk of stating the obvious, public interests will not be decisive if that leads to an uncompensated taking that would be problematic in common law or human rights law. But, in any event, whilst more careful scrutiny of a claimed “public interest” may allow defendants to assert those interests with greater confidence, equally, closer examination of the limitations of regulation should help to avoid questionable calls on the public interest. Open and critical engagement with regulatory determinations of public interests enables those public interests to be challenged as readily as they are currently asserted.
Secondly, this is something of a re-run of the discussion in section II above of the place of public interests in private law. The closer one stands to the end of the spectrum at which private law is purely private, the more aloof property is from social welfare,Footnote 130 whilst others see property as to a greater or lesser degree socially and collectively defined.Footnote 131 That property rights are not absolute, or completely isolated from public interests, is apparent even in the long-standing state power to “take” property in the public interest with compensation, especially given inevitable disagreements on the amount of compensation awarded.Footnote 132 Property rights are also clearly shaped by collective interests through regulation.Footnote 133 The point at which the shaping of property by the public interest amounts to “expropriation” is complicated, but regulators have considerable flexibility, and only extreme cases amount to expropriation.Footnote 134 Regulatory interference with property that falls short of expropriation does not in principle demand compensation.Footnote 135
Simply taking collective interests into account in private nuisance in no way implies expropriation. However, the fact that statutory compensation is made available for “physical factors” (including noise, smells, vibration) when certain “public works”Footnote 136 or “nationally significant infrastructure projects”Footnote 137 enjoy immunity from nuisance suggests a broader concern with property interferences.Footnote 138 The limits on compensation under these provisions may again however emphasise the absence of any absolute approach to compensation. In particular,Footnote 139 compensation for nuisances arising during the operation of an activity is only available where the value of an interest in land is depreciated.Footnote 140 This suggests that only major interferences are considered, and indeed a reduction in the value of property would indicate severity in any private nuisance claim, whether or not collective interests are also at stake. The entitlement under Article 1 of Protocol 1 to the European Convention on Human Rights “to the peaceful enjoyment of property” is similarly not about “peaceful enjoyment in a pleasant environment”, but generally implies (at least) reduction in the value of property.Footnote 141 Again, rather than suggesting that property is absolutely protected, these provisions indicate a flexible and dynamic approach to the relationship between private property and public interests.
Thirdly, the property rights protected in private nuisance are not clearly pre-defined; as well as protecting property rights, private nuisance (with regulation) shapes, or “constitutes”, those rights.Footnote 142 Whether interference is capable of amounting to a private nuisance in the circumstances is a central question, and taking into account the public interest does not lessen the need to pay attention to the claimant's position. Finding space for this flexible shaping of property is relatively straightforward in respect of “amenity” harms. The degree of freedom from smell or noise to which our property entitles us (and how much smell or noise we are entitled to impose on our neighbours) is determined by private nuisance, by public interests, and by the interaction of private nuisance and public regulation. But, as mentioned above, the approach to physical damage to property is, at least, more absolute in the current law.Footnote 143 There is, however, little in even the recent cases to suggest that much attention has been paid to the prioritisation between types of harm that this implies. Whether possibly trivial physical damage to property should be prioritised over possibly very serious amenity harm (not to mention personal injury) has long been questioned,Footnote 144 and some argue that physical damage to property should be completely removed from private nuisance, and left to negligence.Footnote 145 The practical dilemma is that physical damage to property, even chattels, provides a bright line for the identification of harm that attracts the attention of private nuisance. Such a marker is not available in respect of inherently relative noise and smells. But the clothes damaged on the washing line (like coughing and spluttering in the gardenFootnote 146) may simply indicate an interference with the use and enjoyment of property. Whilst there may be benefits to bright lines in this area, there is no obvious reason why the public interest should never be taken into account in these cases. The question is whether this is sufficiently serious an interference with property to constitute a private nuisance and, again, the answer might be shaped in part by public interests.Footnote 147
Taking public interests into account in private nuisance is not straightforward, and this article does not claim the final word. But the ubiquity of public interests in tort already shapes our rights and duties, including in respect of property, and the argument here is that we need to think hard about how we identify and evaluate public interests in private law. The discussion in this section underlines some of the issues that will need also to be kept in mind (in particular about the degree of interference with the claimant's property) when the public interest is taken into account. It also reiterates the close and dynamic connections between property and the public interest, and the absence of any isolated or absolute approach to property.
VIII. Conclusions
The apparently disorderly nature of the call on the collective in tort is sometimes thought to justify an effort to silence this line of thought, to say that collective interests are an illegitimate consideration in private nuisance. But the courts do take public interests into account in the definition and the protection of the neighbourly property rights at the heart of private nuisance. Collective interests will not disappear, and suppressing their open discussion will mean that tort cannot be properly scrutinised and ultimately challenged.Footnote 148 So we need to articulate a way of identifying and assessing those interests. This paper argues that a methodology might be found in a critical consideration of administrative decision-making. Caution is to be expected: these interests are plural, contested, and ambiguous, and the public cannot be neatly separated from the private, nor the collective from the individual. But this paper argues that an approach, relatively familiar to the courts, is available for development.
