230	Simon Douglas and Ben McFarlane

ii. Land

Turning to land, there is again a small number of cases that may be used to support the view that A, a freeholder, is owed a legal duty by B, C, D . . . not to impair A’s ability to use his land. The early economic tort case of Keeble v Hickeringill is such a case. The claimant, who had freehold title to land, set up nets and decoys around a pond on his land in order to catch wildfowl. The defendant, a neighbour, disrupted this by setting off a gun on his own land to scare the birds away. No physical interference with the claimant’s land was pleaded and Holt CJ characterized the claim as one of impairment of use: ‘The plaintiff in this case brings his action for the apparent injury done him in the use of that employment of his freehold, his art, and skill, that he uses thereby.’48 The claim, brought in an action on the case, succeeded. Because the defendant could not have breached his duty not to physically interfere with the claimant’s land, his liability in this action suggests that he was under a further duty to the claimant not to impair the claimant’s ability to use his land. It is not clear if Keeble v Hickeringill survived the economic torts case, discussed in Section 2.1(b), of Allen v Flood, where it was stated that Keeble was no more than a straightforward nuisance claim.49

Of course, re-characterizing Keeble as a nuisance claim does not answer the problem, but merely pushes it within the tort of nuisance: if it is a typical nuisance claim, then does this demonstrate that the tort of nuisance recognizes that a freeholder, A, is owed a legal duty by B, C, D . . . not to impair A’s ability to use his land? There is some evidence for this. To give one recent example, in the case of

Birmingham Development Company Ltd v Tyler the claimant, a freeholder, was in the process of erecting new buildings on its land when it had to stop works due to the presence of a poorly constructed building on the defendant’s neighbouring land which the claimant thought was in danger of collapsing. The claim did not succeed on the facts, as it was found that the claimant’s fears were unfounded. However, the Court of Appeal held that if there had been a real danger of collapse, then that danger in itself could constitute a nuisance. This is important in the present context because the presence of such a danger does not (until it materializes) involve any form of physical interference with the claimant’s land. The only effect it would have had is that the claimant would have been unable to build on his land, i.e. it would have deprived the claimant of a liberty to use his land. Rimer LJ held that such an impairment of use could form the basis of a claim in nuisance, saying: ‘to live in the shadow of such a danger will obviously be to interfere with his enjoyment of his property. It may prevent him from using part of it for fear of what will happen if there is a collapse.’50 This may be read as the recognition of a duty on the defendant not to impair the claimant’s ability to use his land.

Nonetheless, each of Keeble and Birmingham Development can be interpreted as consistent with the absence of duty not to interfere with the use of another’s land. As for the former case, it is clear that noise can constitute a nuisance, and this is

48Keeble v Hickeringill 1707, 1129.

49See the comments of Lord Herschell: Allen v Flood 1898, 133.

50Birmingham Development Company Ltd v Tyler 2008, [52].

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consistent with the model of nuisance set out above, as the passing of sound waves onto or over the claimant’s land constitutes a form of physical interference. As to the latter case, it should be no surprise that the threat of physical interference, in the form of debris from a collapsing building entering the claimant’s land, will suffice for the grant of a quia timet injunction, as such an injunction may be available where the ‘earlier actions of the defendant may lead to future causes of action’.51

Moreover, as was the case with chattels, there is much evidence for the contrary view that there is no general duty not to interfere with the use of another’s land. Nuisance cases such as Birmingham Development Company Ltd v Tyler have been described as ‘exceptional’52 because in the standard nuisance case there is something, such as smoke, fumes, or noise, emanating onto the claimant’s land. It was explained above that a physical interference with land typically consists of some form of ‘boundary crossing’, and in the normal nuisance case this is satisfied by the smoke, fumes, noise, etc., moving across the claimant’s boundary. There are a number of nuisance claims that have been rejected because they did not involve this form of physical interference.53 For example, in Bryant v Lefever,54 the defendants, by building a taller house and using the roof to store timber, prevented smoke from escaping from the claimant’s neighbouring chimneys. In the absence of any easement held by the claimant to the flow of air, the defendant’s conduct was found not to be a nuisance: as nothing produced by the defendant had crossed onto the claimant’s land, the defendant could not be held responsible for difficulties caused to the claimant by the smoke. Coase, in his seminal discussion of nuisance, applied the reciprocal causation approach to his analysis of the case and argued that the judges failed to take proper account of the costs imposed on the claimant by the defendant’s activities. The court’s approach is, however, consistent with the model proposed in this chapter as it focused not on the uses to which the claimant wished to put his land but rather on whether the defendant could be said to have physically interfered with that land.55

The best recent example of such an approach comes from the leading case of Hunter v Canary Wharf where the defendant, by erecting the Canary Wharf tower, had prevented television signals from reaching the claimant’s land. Although this had deprived the affected freeholders of a liberty, as they were no longer able to watch television in their homes, the claim was rejected because the defendant had in no way physically interfered with their land. Lord Goff said:

51See per Lord Upjohn in Redland Bricks v Morris 1970, 665. Note too the valuable discussion of Bagshaw 2012, 416–21.

52Anglian Water Services v Crawshaw Robbins & Co. Ltd 2001, [54].

53E.g. D Pride & Partners (a firm) v Institute for Animal Health 2009, Anglian Water Services v Crawshaw Robbins & Co. Ltd 2001, Perre v Apand Pty Ltd 1999, and Tapling v Jones 1865; cf. Thompson-Schwab v Costaki 1956 and Laws v Florinplace Ltd 1981.

541879. See Smith 2004, 1004–5 for a useful discussion of the decision.

55See Coase 1960.