By Sara Joy - Law Student @ Downing College, Cambridge
The locality principle means that whether an interference with the amenity of a claimant’s land amounts to a nuisance depends on the character of the locality the land is in. For example, in an industrial area, lawful noise from heavy machinery may be expected and therefore not constitute nuisance. However, the same noise from the same type of machinery may constitute nuisance in a residential area.
Helen’s Smelting v Tipping Lord Westbury LC suggested that where there is an interference with personal sensibilities (e.g. noise or smell), the question of the extent of reasonableness should be judged by taking into account the nature of the locality. This was then defined by Lord Neuberger in Lawrence v Fen Tigers Ltd as the “established patterns of use [of land] in the locality”. Furthermore, it was established that planning permissions can change the character of the locality but only if it the permission marked a fundamentally strategic transition towards a different locality.
This principle is a controversial one and must be evaluated. Joanna Conaghan and Wade Mansell view it as a class-based device which requires the working class to tolerate a greater extent of nuisance simply because house prices may be higher in middle-class neighbourhoods. However, McBride and Bagshaw view this as an importation of reality rather than a consequence of principle. This seems valid given that the principle has also protected the working class from industrial noise within their residential areas and so is arguably not totally classist in theory. However, are the inevitable practical consequences of such a principle justified?
McBride and Bagshaw argue it is still justified. They state that “different social rules of ‘give and take’… are likely to have evolved in different places”. Social rules only exist to the extent they are practiced, and therefore courts focus on actual practices in a given area rather than future practices reflected through planning permissions. However, Steel questions whether there is such a role for external customary standards to begin with. He argues that stability and autonomy regarding knowledge that one person won’t normally be able to disrupt the predominant land uses in the locality needs to be balanced with the autonomy-diminishing effect of locality principle of individual uses of land. Additionally, the consent of individual to experiencing interference by ‘coming to an area’ is an insufficient argument as it fails to consider that some individuals don’t have adequate opportunities or freedom to locate in specific areas.
Ultimately, although the principle is pragmatic as it allows for the functioning of useful industrial sectors with minimal disruption if they are in an area where it is ‘to be expected’. Additionally, it serves to minimise harm by having these practices concentrated in small areas, in order that a smaller proportion of people are affected by the noise pollution. However, the fact overall harm is minimised by this principle cannot legitimately strike down arguments of allowing compensation for such interference. In fact, the majority in Fen Tigers argue that “the general public interest may have led to a particular private interest being overlooked or overridden. If it is to be acceptable to permit this, then it should at least be permitted on a basis that affords compensation”.
In conclusion, whilst the locality principle appears to be a consequence of pragmatism, a necessary balance must be struck with the need for autonomy over individual uses of land in order to justify its existence. This balance may be struck by granting compensation for nuisance where the interference can be expected due to its locality but refusing to grant an injunction, which may frustrate and undermine the economic benefit of land usage causing the interference.
Further reading:
Cases: Helen’s Smelting v Tipping Lord Westbury LC [1865] UKHL J81; Lawrence v Fen Tigers Ltd [2014] UKSC 13
Video Summary of the Locality Principle (University of London): https://lawsblog.london.ac.uk/2018/04/18/the-tort-of-nuisance-the-locality-principle/
The Locality Principle in Private Nuisance (S. Steel): https://www.cambridge.org/core/journals/cambridge-law-journal/article/locality-principle-in-private-nuisance/2BC51B7B0F1D08D9DA95E1887EC093DC
Textbook pages on the locality principle p. 378-81 (McBride and Bagshaw): https://books.google.co.uk/books?id=vnVVMQl-9xgC&pg=PA380&lpg=PA380&dq=mcbrides+bagshaw+locality+principle&source=bl&ots=2qWi992XQx&sig=ACfU3U01zhkw1uOrUO6xOn5SksKhqaeLGA&hl=en&sa=X&ved=2ahUKEwjrjrLb5bT1AhWCh_0HHSifBtUQ6AF6BAgMEAM#v=onepage&q=mcbrides%20bagshaw%20locality%20principle&f=false