1. For discussion of the likely usefulness of private law in this context, see for example McLaren ‘The Common Law Nuisance Actions and the Environmental Battle-Well- Tempered Swords or Broken Reeds?’ (1972) 10 Osgoode Hall Law Journal 505; for an assessment of nuisance as a form of prospective pollution control, see Ogus and Richardson ‘Economics and the Environment: A Study in Private Nuisance’ (1977) 36 Camb LJ.

2. Pugh and Day (eds) Toxic Torts (London: Cameron May, 1992).

3. This article is centrally concerned with private, rather than public, nuisance, and references to ‘nuisance’ should be understood accordingly. However, the action in RyZunds v Fletcher must now, for the reasons explained below, be seen as closely related to nuisance, at least in English law; and there is some overlap between public and private nuisance, in that a public nuisance can be constituted by an accumulation of private nuisances: A-G v PYA Quarries Ltd [1957] 2 QB 169.

4. There is a developing tendency to propose that environmental problems should be met with deregulatory solutions; and it is often assumed that private common law will play a part where such a deregulatory emphasis is carried through. This kind of suggestion is, however, often accompanied by a further assumption, that common law can be understood as providing a ‘market mechanism’, with economic aims. This is of course a controversial assumption, particularly in relation to tort law. For an example of such deregulatory and market ambitions for private law, see the UK's Response to the Communicationfrom the Commission of the European Communities (COM(93)47final) Green Paper on Remedying Environmental Damage (14 December 1993).

5. Consideration of these aspects of liability at common law in the context of regulatory activity is a main theme of the discussions in Parts 3 and 4 below.

6. The role of common law tort actions in this regard is raised by Neil Hawke ‘Law and the Regulatory Environment of Waste Management’ (1991) 18 Journal of Law and Society 81.

7. It should be remembered that apart from the prominent reported cases discussed immediately below, there are also problems associated with the funding and organisation of such actions, which may lead to the foundering of claims at an early stage. In general, the scope for positive development of the law through the activities of legally aided plaintiffs has been prejudiced by defendants who challenge the grant of legal aid in cases raising substantive legal questions: see Pugh and Day, n 2 above, pp 17-19.

8. Allen v Gulfoil [I9811 AC 1001.

9. Gillingham v Medway (Chatham) Dock Co Ltd [1993] QB 343.

10. Despite the individualised form of the tort action, this may in fact be the very thing that the litigants would like to challenge.

11. Cambridge Water v Eastern Counties Leatherplc [1994] 2 WLR 53.

12. A contrast must be made with cases where actions in tort (or in other branches of the law) are brought against individuals and groups who are participating in environmental and other protests. In such cases, there seems to have been little hesitation in protecting the interests of the persons or groups which are being interfered with. See for example Thomas v National Union ofkfineworkers ([ 19861 Ch 20). Tort law proved to be eminently flexible here, where the protected interest was regarded as proper. Little consideration was given to whether the allegedly tortious activity was also of social or political importance. Powers which threaten to affect environmental campaigners (including antiroad campaigners) directly have of course recently been enacted in the Criminal Justice and Public Order Act 1994.

13. See Cotterrell ‘Law's Community: Legal Theory and the Image of Legality’ (1992) 19 Journal of Law and Society 405, for a discussion of contrasting approaches to these issues in contemporary legal theories. What these approaches have in common is that they see the continuation of law as dependent on its achieving some degree of closure. In this connection, the writings of Ernest Weinrib are especially noteworthy for their attempt to explain tort law as a wholly autonomous normative scheme, based on transactions between formally equal individuals (Weinrib ‘Legal Formalism: On the Immanent Rationality of Law’, 97 (1988) Yale Law Journal 949). However, the autonomy of this model, and its closure to all external considerations, are so complete that on the author's own account, tort law premised upon it ‘cannot be established as superior to an alternative legal theory’ (‘The Special Morality of Tort Law’ (1989) 34 McGill Law Journal 403,412).

14. Macrory ‘Environmental Law - Shifting Discretions and the New Formalism’ in Lomas (ed) Frontiers of Environmental Law (London: Chancery 1991).

15. This applies especially in prospective forms of control such as planning. See for example McAuslan The Ideologies of Planning Law (Oxford: Pergamon, 1980). The participatory approach allows for contributions by ‘interest groups’, which may purport to put issues of general community benefit (as opposed to private interest) before planning inquiries: see the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, on environmental impact assessment.

16. A distinction between rights-based ‘liberal’ approaches, and ‘republican’ approaches based on notions of popular sovereignty and democratic self-governance, have been identified on a number of occasions, and may correspond to the different models of citizen access which are described here. See for example Habermas ‘Human Rights and Popular Sovereignty: The Liberal and Republican Versions’ (1994) Ratio Juris 1. Through the eyes of liberalism in this sense, collective decisions tend to be seen as the product of ‘will-bargaining’, and therefore as belonging to the political, rather than the legal, sphere. From a republican perspective so defined, rights are suspect in that they are typically over-individualised, and produce constraints on democratic self-governance. A similar philosophical distinction has been identified as relevant to differing approaches to constitutional interpretation, particularly in relation to public interest litigation: see Feldman ‘Public Interest Litigation and Constitutional Theory in Comparative Perspective’ (1992) 55 MLR 44.

17. It has been pointed out that ‘interest group litigation is not synonymous with public interest litigation. Interest group litigation is typically a medium for arbitrating between competing claims in a pluralist system, a legal extension of the politics of faction’ (Feldman, op cit). This may be extended to the representation of groups in the course of decision-making.

18. [I9811 AC 75; applied in Twyford Parish Council v Secretary of State for the Environment and Secretary of State for Transport (1992) 4 Journal of Environmental Law 273.

19. The familiar problems with such an approach are also present: the development proposal had originated in the decision-maker's own department.

20. Macrory, n 14, p 20.

21. See n 16 above and Craig Public Law and Democracy in the United Kingdom and the United States ofArnericu (Oxford: Clarendon, 1990). The treatment of interest groups under the standing rules for judicial review provides an illustration. Judicial approaches to standing have not always provided access to groups purporting to represent public interests, unless they are statutory consultees (see R w Secretary of State for the Environment, exp Rose Theatre Trust [ 19901 2 WLR 186). There may, however, be some movement in this respect in the environmental context in particular: see the judgment of Otton J in R v Her Majesty's Inspectorate of Pollution ex p Greenpeace (1993) 5 Environmental Law and Management 183.

22. See Honvitz The Transformation ofAmerican Law, 1870-1960 (New York: Oxford University Press 1992), pp 152-3, for the thesis that Hohfeld's conceptions of right were of vital importance to developing progressive legal thought for just this reason - that his approach provided conceptual tools for analysing property into a bundle of rights, rather than a single indivisible right of ownership.

23. According to Honvitz op cit, chapter 7, the perceived contradiction between rights and democracy seems to have led to a preference for restraint, and (amongst scholars) for a theoretical realism which doubted the very legitimacy of judicial review. Honvitz notes that this tended to lead scholars to ignore substantive arguments for and against the value of particular rights, and thus the example of property rights and their antiwelfarist character appears to have led reformist scholars to oppose the development even of more progressive rights such as the right to equal treatment on the grounds of race: see pp 258-268 for the hostile reception which was accorded by Realist thinkers to the historic case of Brown v Board ofEducution 347 US 483 (1954).

24. See for example Ogus and Richardson, above n 1.

25. Article 130R (1) of the EC Treaty .

26. An indication of this capacity for nuisance to develop to cover other elements of land use can be seen outside the environmental context in the case of Khorusandjian v Bush [ 19931 QB 727 (Court of Appeal). Here, a person who had no right of occupation but who dwelt lawfully on the premises in question was considered to have sufficient connection with the land to obtain a remedy in private nuisance: see further Bridgeman and Jones ‘Harassing Conduct and Outrageous Acts: A Cause of Action for Intentionally Inflicted Mental Distress?’ (1994) 14 Legal Studies 180.

27. The term ‘public interest’ is possibly not broad enough, since it suggests a humanist starting point: some environmentalists may in fact be less anthropocentric in their motivations. Opposition to the motorway extension through Twyford Down, for example, might have been variously motivated by a wish to protect the natural world for its own sake; to preserve the natural world for recreational purposes; to prevent the peace of local communities from being shattered; to preserve the value of property; or to effect a change in transport policy away from the polluting and life-threatening emphasis on privately owned cars. The difficulties with assimilating such a non-anthropocentric outlook to the common law should be obvious, given what is said here about public and private interests.

28. Reported together with the House of Lords’ judgment at [1994] 2 WLR 53. See especially p 65.

29. Article 130R(2) EC Treaty: inserted by Article 25 of the Single European Act 1986 (Cmnd 9758). The Court of Appeal merely said that this was something for ‘others’ to decide, but it seems probable, given the surprising nature of their decision, that they saw some merit in the argument.

30. The decision was said to have been compelled by the authority of BaZZurd v Tomlinson (1885)29ChD 115. 31. See Epstein, ‘A Theory of Strict Liability’ (1973) 2 Journal of Legal Studies 151; Epstein, ‘Nuisance Law: Corrective Justice and its Utilitarian Constraints’ (1979) 8 Journal of Legal Studies 48. N Simmonds ‘Epstein's Theory of Strict Tort Liability’, (1992)51 CambLJ 113.

32. Cambridge Water, p 64 F-H: explaining that there was no need to consider Rylands v Fletcher, which ‘makes a person liable for the event of an escape rather than for his actions. This case is one where liability attached by reason of actions of the respondent in spilling PCE’ (Mann W). See also the following emphasis on actions (at p 64D): ‘The actor acts at his peril in that if his actions result by the operation of ordinary natural processes in an interference with the right then he is liable …’ .

33. See Epstein ‘Nuisance Law: Corrective Justice and Its Utilitarian Constraints’, above, n 31: the reason for liability in tort cases is always invasion of ownership rights - even personal injury is compensable because of ownership of our bodies. So, ‘If the body of an individual is unowned, then what A wants to describe as an assault and battery is simply a sequence of physical events initiated by B, but indistinguishable legally from B's kicking a clod of unclaimed dirt.’ (p 50).

34. There may in fact be a trend towards strict liability for environmental damage within various European countries: see the discussion on this point in the EC Commission's Green Paper on Remedying Environmental Damage (COM(93)47 final). The ‘Lugano Convention’ adopted by the Council of Europe (Convention on Civil Liability for Damage Resultingfrom Activities Dangerous to the Environment) is illustrative of the same trend, although the UK has expressed an intention not to sign it.

35. Howarth “‘Poisonous, Noxious or Polluting” Contrasting Approaches to Environmental Regulation’ (1993) 56 MLR 171.

36. Damage-based torts, such as negligence, should be distinguished from rights-based actions, such as those arising from the invasion of riparian rights. Contamination which infringes the rights of riparian owners is actionable without proof of actual damage, and contamination in this sense refers to any alteration in the quality of the water, provided it is not merely trifling. See Wisdom's Law of Watercourses by William Howarth (5th edn, Shaw & Sons 1992) pp 90.91. And see Jones v Llunnvst UDC [1911] 1 Ch 393; Crossley & Sons v Lightowler (1 867) LT 438; John Young & Co v Bankier Distillery Co [1893] AC691.

37. In response to EC Directive 80/778 on the Quality of Water Intended for Human Consumption, the UK's first statutory standards for wholesomeness in drinking water were effected by the Water Supply (Water Quality) Regulations 1989 (SI 1989 1147). Water for domestic use must, under s 67 of the Water Industry Act 1991, be ‘wholesome’ as defined in these regulations. The initial response to the Directive was to ‘implement’ it by Department of Environment Circular (20/82). This approach to implementation has not been favourably regarded by the Commission. In general terms, the setting of precise standards at a central level defining what is wholesome is a new departure for UK domestic pollution law.

38. In Cambridge Water itself, Lord Goff pointed out that although there is a right, protected in tort, to abstract percolating water, ‘There is no natural right to percolating water, as there may be to water running in a defined channel’ (p 72A). Water not flowing in a defined channel has been said to be ‘not the subject of property or capable of being the subject of a grant’: Wisdom's Law of Watercourses, above, pp 122-123. The best view seems to be that the water is not owned until it is abstracted; and so it is only ever owned by the plaintiff in its contaminated state.

39. So, for example, Lord Goff explains that the Water Authority instigated ‘a prolonged and exhaustive programme of investigation’ to discover the source of PCE in the borehole, and to determine its behaviour. This investigation yielded several published papers which have become the major UK source material on the subject: [ 19941 2 WLR 53 at p 68. No group of ordinary affected individuals, no matter how well advised, is likely to be able to pursue scientific enquiry of this order into the causes of pollution.

40. In principle, a failure to implement EC Directive SOD78 might have given rise to an individual right of action similar to that in Francovich v Italy (Case C-6/90 and C-9/90); that right of action however lies against the State, in respect of its failure to comply with its obligations by implementing Community obligations into national law. Should water be supplied which does not comply with the wholesomeness standards, remedies against the Water Company may be available for breach of statutory duty. In AB v South West Water [ 1931 QB 507, the plaintiffs added a claim for breach of the Directive itself, perhaps on the basis that implementation was incomplete. Liability was admitted on unspecified grounds in the latter case.

41. Separate provisions on dangerous substances in drinking water are contained in EC Framework Directive 761464 on Dangerous Substances in Water, and the related ‘daughter’ Directives on particular dangerous substances.

42. Wisdom's Law of Watercourses, above, p 91.

43. See the reference at p 72 C to ‘interference with the plaintiff's use and enjoyment of land, including his right to extract water percolating beneath his land’. It is less easy to see how the facts of Cambridge Wafer could be thought to give rise to relevant damage for the purpose of Rylands v Fletcher, with which the appeal was centrally concerned, since the latter is occupied with ‘dangerous things’, and with damage.

44. [ 19901 3 WLR 383. The case was brought under the strict liability provisions of the Nuclear Installations Act 1965.

45. Overseas Tankship (UK) Ltd v Mom Dock Engineering Co Ltd [ 19671 1 AC 617.

46. Thus ‘… knowledge, or at least foreseeability of the risk, is a prerequisite of the recovery of damages under the principle; but, … the principle is one of strict liability in the sense that the defendant may be held liable notwithstanding that he has exercised all due care to prevent the escape from occurring’: p 77A-B.

47. The potential impact of this in dissolving current distinctions between negligence and riparian-rights actions, is illustrated by the case of Scott- Whitehead v NCB (1987) 53 P & CR 263. Here, the actual polluter of water was found to have contaminated the water supply received by the plaintiff downstream; the plaintiff also suffered physical damage to crops. The polluters’ rights-based defences to the claim based on riparian rights were unsuccessful. By way of contrast, in a negligence claim which was also brought against the polluters and against the relevant Water Authority, the polluters were able to rely on the defence that the damage was not foreseeable to them, since they could not be expected to know that the discharge would, in the conditions, be dangerous to crops. The Water Authority, on the other hand, could foresee the damage, and was therefore liable for failure to warn. This is a further illustration of the propensity of negligence to divert attention away from the actual polluter.

48. It might have been sufficient simply to have noted that Ryfands liability requires foreseeability as part of the form of liability which it embodies: ie the escaping substance must be something ‘likely to do mischief if it escapes’ (Lord Goff, Cambridge Water, at pp 7677; Blackbum J, Rylands v Fletcher (1866) LR 1 Ex 265, pp 279-280).

49. This question was not strictly in issue in the case, which had been decided on the basis of foreseeability. An idea based on some form of limited reciprocity (not extending to all activities which are of broad ‘community benefit’) seem to have been intended.

50. Far from adopting the simple objective model of causation which Epstein seeks, this comes closer to adopting Coase's view of causation, in which the plaintiff (by having his or her land use disrupted) is being as disruptive as the defendant, by virtue of threatening to fetter the competing use of land RH Coase ‘The Problem of Social Cost’, 3 Journal of Law and Economics 1 (1962); discussed by Epstein in ‘A Theory of Strict Liability’, above.

51. This may be associated with the tendency to ignore nuisance, and to apply negligence standards, when the two potentially overlap: see further Conor Gearty ‘The Place of Private Nuisance in a Modem Law of Torts’ (1989) 48 Camb LJ 214.

52. Ogus and Richardson ‘Economics and the Environment’, above, n 1, p 297. Cane ‘Justice and Justification for Tort Liability’ (1982) 2 OJLS 30, pp 55-56, suggests that ‘physical-damage’ nuisances, because they do not depend on reasonableness of user, have become conduct-based and closely resemble negligence.

53. St Helens Smelting v Tipping (1865) 1 1 HLC 642. The distinction actually drawn in this case was between damage to the value of property, and mere interferences with comfort and enjoyment. The distinction is therefore not easy to specify with certainty, still less to justify completely.

54. See Winfield and Jolowicz, 14th edn, pp 406407: ‘if, after balancing the competing interests of the parties, the court considers that the interference is excessive by any standards then the fact that the defendant has taken all reasonable care and reduced it to a minimum provides no defence - the irreducible minimum is itself the nuisance’.

55. There are cases categorised as nuisance cases where a degree of fault on the part of the defendant is required, and these have caused a certain amount of confusion. However, these cases tend to be those where the nuisance does not originate in the course of the defendant's activities, and to impose liability amounts to the recognition of an affirmative duty of action. It is therefore not surprising that in cases such as Sedleigh-Denfield v O’Cullughan [ 19401 AC 880 the focus shifts to particular conduct, rather than general activity, on the part of the defendant, and I would suggest that such focus should not be taken to extend to all cases of nuisance which cause damage. (For the contrary view, see P Cane ‘Justice and Justification for Tort Liability’, above, p 56).

56. Bolron v Stone [ 195 11 AC 850. Difficult questions arise in respect of the availability of injunctions where what is sought is prospective control of a risk. One advantage of claims associated with rights over land is that it is often easier to identify prospectively the specific party who is at risk in land-use cases.

57. See for example Albety and Budden v BP Oil and Shell Oil [ 19801 Journal of Planning Law 586. Actions in negligence against two oil companies for injuries caused by toxic emissions in air failed on the basis that the companies were not falling below prescribed emission standards.

58. Above. n 44.

59. Ibid, p 130.

60. Whilst the existence of planning law necessarily implies the existence of limitations on the freedom to use and exploit property, the converse is also true in that decisions of planning authorities could be interpreted as carrying an element of ‘authorisation’. Whilst the parallels with statutory authority are clearly not so close that courts would wish to apply an authorisation ‘defence’, the temptation will be for judges to regard the results which flow naturally from planned developments as ‘reasonable’. This in turn has not happened directly, but see Gillingham v Medway (Chatham) Dock Co (above, n 9). A claim for amenity nuisance was defeated because the grant of planning permission was regarded as having changed the ‘character of the neighbourhood‘, such that interference by noise was rendered ‘reasonable’. Some of the difficulties with this conclusion and approach are pursued by Steele and Jewell ‘Nuisance and Planning’ (1993) 56 MLR 568.

61. During the 1980s for example, a major emphasis was placed on development, and the interests of developers. This is evidenced through influential policy guidance issued at a central level. So, a general presumption in favour of development was propounded by Department of the Environment Circular 14/85; whilst Circular 1/85 emphasis4 that conditions should be attached to pennissions only if they could be justified on clear grounds.

62. A Brudner ‘Hegel and the Crisis of Private Law’, in Cornell, Rosenfeld and Carlson (eds) Hegel and Legal Theory (London: Routledge, 1991), p 129.

63. The malleability of negligence should not be underestimated, and it is certainly capable of producing wider liability than is suggested here. Given the difficulties of proving carelessness associated with product liability cases for example, the line of authority flowing directly from Donoghue v Stevenson itself can be seen as having incorporated elements of strict liability from an early stage.

64. This statement does of course require qualification. It has sometimes been assumed that personal injury can be compensated in private nuisance; and in Khorasandjian v Bush (above, n 26), harrassing telephone calls which were actionable in nuisance were also likely to cause psychiatric or physical harm to the plaintiff. However, Markesinis and Deakin report that ‘There seems to be no English case that has allowed recovery for personal injuries in an action ofprivate nuisance’ (Markesinis and Deakin, Tort (3rd edn, Oxford, 1994); p 436.

65. Lord Goff, Cambridge Water, ibid, p 83G: ‘It may well be that, now that it is recognised that foreseeability of harm of the relevant type is a prerequisite of liability in damages under the rule, the courts may feel less pressure to extend the concept of natural use to circumstances such as those in the present case’. Again, the reasons why there may be ‘less pressure’ in this respect are not stated.

66. For example, Article 130R of the EC Treaty includes the protection of human health and protection and improvement of the environment, as objectives of the EC's environmental activities. The development of European environmental policy may, however, owe much to the realisation that such provisions are essential for long-term economic development, and may reflect no more than a changed perception of what is needed to achieve the goals of economic cooperation. In the context of domestic law, concepts such as ‘BATNEEC’ (Best Available Techniques Not Entailing Excessive Cost: Part I Environmental Protection Act 1990) clearly imply a qualified approach to the importance of the protection of health and the environment.