for an action in private nuisance to lie in respect of interference with the plaintiff’s enjoyment of his land, it will generally arise from something emanating from the defendant’s land. Such an emanation may take many forms—noise, dirt, fumes, a noxious smell, vibrations, and suchlike.56

Lord Goff is here clearly asserting that, generally, a defendant will be liable only if he is responsible for something crossing the boundary of the claimant’s land. Without this form of physical interference there is, generally, no liability in nuisance. Lord Goff went on to point out that, in ‘relatively rare’ cases, activities carried out on the defendant’s land may be ‘in themselves so offensive to neighbours as to constitute an actionable nuisance’.57 The example given by his Lordship was of Thompson-Schwab v Costaki,58 in which the nuisance consisted of the use of land for prostitution. Interestingly, Lord Goff described the nuisance as consisting of the ‘sight of prostitutes and their clients entering and leaving neighbouring premises’: this focus on sight, which necessarily requires the passing of light rays over the claimant’s land, means even that rare case can in fact be reconciled to the general model of nuisance, in which a defendant will only be liable if he is responsible for something crossing the boundary of the claimant’s land.59 Whatever one’s view as to whether conduct that is offensive in this sense ought to constitute a nuisance, it is important to note that the courts approach that question without conducting an examination of the particular uses that A may wish to make of his land.

It thus seems that A, a freeholder of land, is owed no legal duty by B, C, D . . . not to impair A’s ability to use his land. Rather, A is merely owed a duty by B, C, D . . . not to physically interfere with his land. This conclusion mirrors that drawn in respect of chattels. The purpose of this section has been to determine the status of an owner’s so-called ‘right to use’ his thing. What we have seen is that whilst this means that he has a ‘liberty to use’ his thing, in the sense that his use is permitted, it does not denote a legal duty upon others not to impair his ability to use it. A ‘right to use’, therefore, is a mere liberty, not a claim-right.

c) Conclusion

Proponents of the ‘bundle of rights’ view typically describe an owner of a thing as having both a ‘right to use’ the thing and a ‘right to exclude’ others from the thing. Whilst this is not entirely inaccurate, we have seen in this section that they are very different types of right. An owner’s ‘right to exclude’ is a ‘claim-right’ because it denotes a legal duty upon others not to physically interfere with the thing. A ‘right to use’, on the other hand, does not denote a legal duty, but merely expresses the owner’s liberty to use his thing.

581956.

59See too Bank of New Zealand v Greenwood 1984 (discussed by Lord Goff in Hunter v Canary Wharf 1997, 686) in which the prima facie nuisance consisted of the reflection of dazzling light from the glass roof of the defendant’s veranda onto the claimant’s land.