Common law actions
Torts - nuisance, negligence, trepass
Land law
Background
We looked at the idea that the common law is like concrete floor of the building. Statutes are an overlay on that. Sometimes it completely replaces the common law while the statute is in existence eg the common law right to sue for personal injury is removed by ACC legislation. In the case of environmental law - in particular the RMA 1991 - the common law co-exists with the RMA.
Land law
Key aspects are:
- real property versus moveable property
- doctrine of tenure - which arises from feudal system put in place by William the Conqueror. All land is ultimately held by the Crown.
- Owners dont own the land itself but a bundle of rights (ownership of the land itself is known as allodial ownership).
- We have a Torrens system for recording land ownership on a central computer register - more info here:
http://www.linz.govt.nz/survey-titles/land-registration/overview-land-registration
http://www.landonline.govt.nz/
- had a brief look at easements (eg rights of
way) and covenants (eg positive requirements to use land in certain ways, not to
cut indigenous bush on the land, no pets, house must be a certain value etc).
Common law does not protect views - although it will protect light.
Trees? Special regime for them. See this section of Property Law Act
333Court may order removal or trimming of trees or removal or alteration of structures
- (1)A court may, on an application under section 334, order an owner or occupier of land on which a structure is erected or a tree is growing or standing—
- (a)to remove, repair, or alter the structure; or
- (b)to remove or trim the tree.
(2)An order may be made under subsection (1) whether or not the risk, obstruction, or interference that the structure or tree is causing—- (a)constitutes a legal nuisance; and
- (b)could be the subject of a proceeding otherwise than under this section.
Common law
tort actions and the environment
While common law can develop to meet new environmental
challenges, a key advantage of statutes is that they can require people to act
well before possible damage occurs.
We examined the torts of negligence and nuisance in
some detail
Negligence -
requirements being duty of care, foreseeability and damage. How Donoghue v
Stevenson extended negligence through the extension of the duty of care.
Examples of a council officer wrongly advising a person about whether they need
to get a resource consent. Land Informaition Memoranda - how they now come with
extensive disclaimers - to avoid negligence claims.
Nuisance
The requirements are 1) an interest in land and 2)
interference in quiet enjoyment of that land.
We discussed the Canary Wharf case of interference in
TV signals, THose who were not allowed to sue because they had no interest in
land.
Rylands and
Fletcher case seemed to say that for some cases of nuisance
forseeability was not required. Cambridge
water case changes that. Foreseeabiliity is a requirement of all nuisance
actions.
Reverse
sensitivity discussed eg houses built near a cricket pitch. eg
new apartments near ports of Auckland. New houses near airports. Nuisance law
says that coming to a nuisance does not excuse the nuisance. The incoming
person has to accept the general environment ie cant insist on rural quietness
in a city - but can still complain about obvious noisy activities eg bands in
bars late at night. Planning law under the RMA has to accommodate the
reuqirements of nuisance law ie plans cant allow activities that would otherwise
be nuisances. So airports and ports cant prevent new housing near them, but
planning rules can require houses to at least fit sound proof glass.
Trespass
Can be useful as a way of suing for things like spray
drift ie objects intruding on your land - not just people.
Background to our current environmental law
The term
“environment” in the sense of the biophysical environment is surprisingly
recent.
Etymology of
environment
See this useful
timeline of events:
A key moment was
the release of Limits to Growth - using the World3 computer model:
1972 Stockholm
conference on the Human environment
At that conference
was laid the groundwork for the developing / developed split that continues
today into instruments such as the Kyoto protocol.
1987 Brundtland
report - Our Common Future
1992 - Agenda 21
Note that a key
focus of Agenda 21 is the promotion of free trade as the means to boost
economic growth in developing countries, so that they may undergo demographic
transition and reduce birth rates and their impact on the environment. This
transition is meant to happen utilising technologies of developed countries so
that the types of pollution of the old industrial revolution do not occur.
A brilliant site
to explore the idea of demographic transaction and the stunning speed of
transition in some countries. It raises the question, is the idea of developed
and developing countries not irrelevant?
20 minute talk by
Hans Rosling.
1992 United
Nations Framework Agreement on Climate Change.
http://unfccc.int/essential_background/convention/background/items/1353.php
Note how it preserves the developed/
developing principle
1992 United
Nations Framework Agreement on Climate Change.
ARTICLE 2:
OBJECTIVE
“The ultimate
objective of this Convention and any related legal instruments that the
Conference of the Parties may adopt is to achieve, … stabilization of
greenhouse gas concentrations in the atmosphere at a level that would prevent
dangerous anthropogenic interference with the climate system. Such a level
should be achieved within a time-frame sufficient to allow ecosystems to adapt
naturally to climate change, to ensure that food production is not threatened
and to enable economic development to proceed in a sustainable manner.”
http://unfccc.int/essential_background/convention/background/items/1353.php
Text of Kyoto
protocol
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