Ben Pontin, Nuisance Law and Environmental Protection: A Study of Nuisance Injunctions in Practice, Witney: Lawtext, 2013, 224 pp, hb £45.00.
| Date | 01 July 2014 |
| DOI | http://doi.org/10.1111/1468-2230.12084 |
| Published date | 01 July 2014 |
REVIEW
Ben Pontin,Nuisance Law and Environmental Protection: A Study of
Nuisance Injunctions in Practice, Witney: Lawtext, 2013, 224 pp, hb £45.00.
For many years, nuisance has been represented and explained as a ‘green’ tort, a
tort that gets sewage out of rivers and acid smuts out of the air. In Nuisance Law
and Environmental Protection, Pontin explores the positive environmental achieve-
ments of private nuisance, especially in respect of ‘serious pollution arising
from pioneering industrial enterprise’ (vii). The book is rich with doctrinal and
contextual detail, enormously enlightening and a joy to read. Pontin strongly
challenges the dominant, and fairly dismal, view of private nuisance’s potential to
make more than a peripheral contribution to environmental protection. Nuisance
Law and Environmental Protection persuasively argues for the importance of con-
tinued common law resilience and autonomy in the face of the regulatory state.
It is an important book for a wide audience, practitioner and academic, interested
in pollution control law or the tort of private nuisance.
Pontin ‘advocates’ a very attractive ‘view of the law’, which functions
as a positive, decentralised forum for addressing neighbourly disputes in ways that
make sense for society as a whole, but in a way that works in tandem with regulatory
law. Overall, the study promotes a specific aspect of pluralistic legal landscape in
which ‘private law’ and ‘public law’ converge, often with complementary functions,
and where tensions are welcomed (rather than suppressed in favour of a homog-
enous, monopolistic administrative regime) (17).
The book revolves around four detailed and beautifully delivered case studies:
Attorney General vBirmingham Corporation (1858–1895) (chapter 2), Tipping vSt
Helens Smelting Co Ltd (1863–1884) (chapter 3), Farnworth vManchester Corpo-
(chapter 5). In the first chapter Pontin clearly explains the choice of these four
case studies. The world has changed a lot since 1972, and some of us might have
hoped for an exploration of what happens in more recent cases. But, aside from
the need for time to pass in order to find out ‘what happens next’ (vii), the
paucity of successful recent claims for an injunction may make a similar approach
difficult.
Pontin makes a compelling case for the positive contribution of private
nuisance to pollution control. In chapter 2 (Birmingham), Pontin argues that the
common law of nuisance bore a considerable weight (greater than the weight
borne by regulation) in the development of cleaner technologies. Similarly in
chapter 3 (St Helens), regulators, due to their apprehension about the economic
effects of regulation, intervened only after common law actions (especially a
second, unreported Tipping case, (161)) had forced the development of some
technical fix. In chapter 4 (Farnworth), Pontin examines the demanding nature of
the duty placed on a defendant benefiting from a defence of statutory authority.
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(4) MLR 669–674
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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