The Locality Principle in Private Nuisance
[2017] 76 Cambridge Law Journal 145
20 Pages Posted: 1 May 2023
Date Written: January 17, 2017
Abstract
In determining whether a remedy should be granted in private law in respect of an interference with land, a number of legal systems consider the nature of the locality in which the interference occurs. In German law, a person may have to tolerate a substantial interference with their land, if the interference is typical to the place (ortsüblich). In the tort of private nuisance, one must put up with greater interference with the amenity of one’s land in some localities than in others. This is a consequence of the ‘locality principle’. This principle states that whether an interference with the amenity of land is wrongful in private nuisance depends upon the character of the locality in which the interference occurs. A person may have to tolerate a greater level of noise or smell in industrial areas than in sparsely populated rural areas.
This article considers whether English law’s locality principle can be justified. Two main arguments are made. First, I argue that considerations of locality are relevant to whether an interference is unreasonable in virtue of the fact that the cost (or difficulty) of avoiding certain interferences is partly dependent upon the nature of one’s surroundings, and what claimants can reasonably expect depends, in part, on such costs. Second, it will also be shown that this argument from cost does not explain the locality principle in its entirety. Other explanations will be considered and, in the main, rejected. It is concluded that to the extent the locality principle requires individuals to bear significant burdens, without compensation, beyond those they would have to bear were a direct comparison made between their use of land and the defendant’s, it cannot be justified.
Keywords: Private Nuisance, Tort, Locality Principle, Unreasonable Interference, Liability, Remedies
Suggested Citation: Suggested Citation