The Licensee Called - He Wants His Peace Back!

Abstract

English jurisprudence has long established that only those with a legal interest in land may bring an action for nuisance. Although thought to have been challenged by the Court of Appeal in Khorasandjian v Bush, the House of Lords in Hunter v Canary Wharf Ltd affirmed the original position, noting the importance of nuisance as a tort against land. With the highest Court in the nation in Fearn v Tate Gallery reframing nuisance as a tort against land, it appears that Courts have conclusively closed the prospects of relief under nuisance for those whose rights fall short of a legal interest in land such a licensees. Yet the policy imperatives advocating for the converse are not insignificant. Licences are important not only in both the domestic and commercial context. This paper seeks to examine the principles on standing to sue for nuisance to consider whether there is anything to gain from extending its protection to licensees. It argues that there is sufficient reason to afford some protection for licensees, albeit it might best be done not by expanding the tort of nuisance, but through the development of a new tort following Manchester v Dutton as identified by Professor Adam Baker.