Common Law nuisance/negligence

Environmental law is often regarded as statute-based, but it isn’t always.  Where statute provides no remedy, or an inadequate one, litigants should consider the common law.  If damage is sustained to land, then the law of nuisance may apply, although it differs as between Scotland and England. In England a private nuisance is some unlawful interference with a person’s use or enjoyment of land or some right over or in connection with it, and the measure of damages is the reduction in land value.  In Scotland, the liable party must be at (legal) fault, and the behaviour more than can be reasonably tolerated.

Consider also the delict/tort of negligence.  If there is a breach of a duty of care, there is probably liability in negligence.

If the circumstances fit, common law remedies can be very useful and should always be borne in mind in assessing options for challenge or litigation.

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