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requirement, the fundamental cautiousness returned in the House of Lords decision in Hunter v. Canary Wharf. The House returned the law of private nuisance to its original position of protecting only property rights holders. In the words of Lord Hoffman :

  • "… the development of the common law should be rational and coherent. It should not distort its principles and create anomalies as an expedient to fill a gap."

The basic point, of course, is that any loosening of the strict requirement for standing is within the margin of judicial dis- cretion. Reconfiguration of the way in which that discretion is exercised may be prof- itably undertaken, for instance, in relation to private suits for public nuisances. The well-known rule, derived from Boyce v. Paddington Borough Council is that an indi- vidual can only bring suit without the fiat of the Attorney General in two circumstances. First where the interference with the public right is such that some private right of that person is at the same time interfered with. Secondly, where no private right is inter- fered with, but the person, in respect of his pubic right, suffers special damage peculiar to himself from the interference with the public right.

This requirement to show special damage was interpreted in an interesting way in Chandat v. Reynolds Guyana Mines Ltd. where farmers claimed remedies in respect of damage to their crops caused by polluting emissions from the defendant’s bauxite works. The court found that the pol- lution constituted a public nuisance because it affected a large number of per- sons and was widespread in its range and indiscriminate in its effects. However, these characteristics warranted action by the community at large rather than individuals, none of whom could claim to have suffered any damage, loss, or inconvenience greater in quality than the others. Happily, the more recent decision in Broderick v.



Alcoa Minerals of Jamaica appears to have allowed a representative action in nuisance in respect of polluting emissions from a bauxite plant. Admittedly, however, nothing in the tenure of the judgments in Broderick supports the hope that standing would have been allowed to individuals whose roof had not been corroded by the sulphates from the plant but who simply wished to halt the pol- luting emissions in order to protect the atmosphere.


Conflict Between Private And Public Law

Another context in which the exer-

cise of judicial discretion has import for the environment is in the circumstance where there is a conflict between private law and public regulation, in the sense that an activ- ity is lawful under one regime but not the other.

Private law rights can clash with many regulatory controls, as for example, in the case of the award of waste manage- ment licenses. Budden and Albery-Speyer v. BP Oil involved a claim in negligence for alleged injury to children by ingestion of petrol fumes. The claim was defended by the two oil companies sued on the basis that they had complied with the regulations prescribing the lead content in petrol. This defense was upheld since to decide for the children would be to replace the permissi- ble standard established by Parliament, in favor of a lower, judicially determined stan- dard, by way of litigation under the adver- sary procedure.

Selection of this consideration for deciding this case on atmospheric pollution may be compared with decisions on water pollution. With regard to pollution of water- courses, it has always been accepted that the grant of a license to discharge polluting matter, in no way alters the common law rights of a riparian owner to sue the dis- charger.

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