In adopting this reasoning, the courts are following similar logic to that used by the European Court in the long-running litigation about night flights to and from Heathrow (in particular, in respect to the noise quota introduced in 1993). That 1993 quota was key to the decision, with the court taking the view that a ‘fair balance had to be struck between competing interests of the individual and the community as a whole’, even though such notions have no foundation within our traditional law of nuisance.

Indeed, an example of how the approach taken by the EC differs from those of the UK courts is that the EC considers it reasonable to take into account the fact that an affected homeowner is free to move away from his home without financial loss; that, of course, contrasts with the traditional approach under the law of nuisance (ie that the homeowner should get an injunction rather than damages; that it is no defence that a polluter has used ‘best practice’; or that the unhappy homeowner moved into the area after the pollution started).

A parallel can also be drawn with the case of Dennis [2003] in which a homeowner got compensation for the noise caused by Harrier jump jets from an adjoining military airfield. Whilst this was generally seen as a victory for the law of nuisance, it is worth noting that the homeowner actually only got compensation – he did not get the declaration or injunction that he sought. Once again, that is contrary to the traditional approach which was that once a nuisance had been proved then an injunction would ordinarily follow (unless the defendant could show that the damage sustained by the claimant was small and it would be oppressive to grant the order).

An article in the SJ argues that the combined effect of these decisions is to seriously undermine the traditional law of private nuisance as it relates to pollution. Indeed, several recent claimants who thought they would be obtaining protection under the Human Rights Convention, have found instead that the Convention has actually made it it easier for polluters to resist environmental claims – because traditionally common law nuisance would have stopped the polluting activities, but now the courts seem more inclined to balance the interests of the individual against those of the public as a whole. Indeed, as more undertakings are subject to specific regulatory criteria, so we can expect private law nuisance to become less relevant. Since regulatory schemes often allow polluters a generous measure of discretion in deciding how much it is reasonable to spend in order to reduce environmental impact, it is difficult to see how those decisions are going to be policed in the future. Indeed, as the SJ points out, the next step may well be for polluters to argue that if their activities benefit the public good, then, if they are subject to regimes policed by the EA or LAs,n it should follow that individuals should not have a private right to circumvent the regulatory process by a right to an action in nuisance. Alternatively, it will be suggested that pollution should always be tolerated by individuals, as long as their complaints are compensated by the undertaking concerned. See excellent article in [2004] SJ 83. © Practical Lawyer