Category Archives: Land use and Environment

Greg Bowley, ‘Diminishing Strictness: The Growing Gap In Ontario’s Private Law Environmental Liability Regime’

ABSTRACT The Ontario Court of Appeal’s decision in Smith v Inco Ltd illustrates the degree to which private nuisance liability has evolved over the last 150 years from a tort of relatively strict liability into an increasingly fault-based source of liability. Inco also offers an opportunity to consider whether this evolution has left some wronged […]

Lubna Hasan, ‘Fifty Years of Debate on the Hardin’s Tragedy of the Commons – A Reflection’

ABSTRACT This paper critically reviews Garrett Hardin’s ‘The Tragedy of the Commons’. Hardin’s thesis about the impossibility of collective action for achieving mutually beneficial outcomes in a group setting has divided scholarly community ever since its publication in 1968, while its most perennial object being the communal management of resources, which was banned on account […]

Burgers and Staal, ‘Climate Action as Positive Human Rights Obligation: The Appeals Judgment in Urgenda v The Netherlands

ABSTRACT On 9 October 2018, the Hague Court of Appeal confirmed the first instance judgement rendered in the world-famous Urgenda case: the Dutch State commits a tort by setting a goal for greenhouse gasses emissions reduction of only 20% by the end of 2020, compared to 1990 levels. The State is ordered to raise this […]

Regency Villas v Diamond Resorts [2018] UKSC 57: Easements in the Supreme Court: a few thoughts’

“Now, where were we? Sporting and recreational easements, some weird assumptions about general familiarity with golf courses … Not one of its more earth-shattering judgments, and no more dodgy golf-focused worldviews in evidence, but the Supreme Court has now brought this long-running case to an end, to the delight of Land Law text book writers […]

‘Rumbling In Robes Round 2 – Civil Court Orders Dutch State To Accelerate Climate Change Mitigation’

“On 9 October 2018, the Civil Division of the The Hague Court of Appeal in the Netherlands has delivered its judgment on the appeal of the ‘Urgenda case’. The Court imposed an order to act on the Dutch government to adjust its policy from 20% to achieve a 25% emission reduction by 2020, compared to […]

Matthew Russo, ‘Productive Public Nuisance’

ABSTRACT From removing foul smelling pigsties from urban areas to preventing the dumping of toxic waste into local water supplies, the law has long been used to address environmental issues of all kinds. Threats to public health and the environment remain some of the most urgent challenges facing society today and far outweigh the resources […]

Bronwen O’Herin, ‘The Costs of Clean Water in Hoosick Falls: Private Civil Litigation and the Regulation of Drinking Water Quality’

Abstract Despite extensive statutory law and regulations governing drinking water quality in the United States, water-contamination crises have been a regular feature of the American news cycle in recent years, perhaps most notably in Flint, Michigan, but also in a disturbing number of localities across the United States, including the upstate New York town of […]

Alexander Lemann, ‘Assumption of Flood Risk’

Abstract … Drawing on tort doctrine, and particularly the defense of assumption of risk, I argue that there is instead a set of deeply moral instincts underlying our response to flood risk. The doctrine of assumption of risk assigns responsibility for the realization of risks not when our decisions to confront them are objectively rational, […]

‘Savagery, civilization, and property IV: The aboriginal property rights debate’

“In the last post in this series we saw how modern commons theory tracked many of the features of stadial theory. In this post I begin trying to uncover the routes by which the early modern theory reached modern thinkers on property. The modern commons theorists discussed in the last post did not explicitly refer […]

Smith and Lane, ‘Re-Evaluating the Demise of the Average, Ordinary, Reasonable Person: Unintended Consequences in the Law of Nuisance’

Abstract This Article advocates for a wider pleading use of the tort of nuisance – this, because of the unresolved complexities in the doctrine of causation which continue to plague an effective use of negligence. The confusing awkwardness or, perhaps, the actual demise, of the notion of an average, ordinary, reasonable person so essential to […]