The law of private nuisance following Wu: Emanation and access

Abstract

The boundaries of nuisance have traditionally been tightly guarded. However, the tort’s underlying concern for the protection of property rights has provided it with sufficient flexibility to adapt to changing social and legal circumstances. The New Zealand Court of Appeal’s decision in Body Corporate 366611 v Wu represents the extension of private nuisance to remedy gaps in the tort’s application to the relationship between body corporates and individual proprietors under the Unit Titles Act 1972. The case concerned the defendant Body Corporate’s denial of access to an individual proprietor with an interest in the common property from which the nuisance ‘emanated’. Though the Court erred in its interpretation of existing nuisance principles relating to emanation, its decision can be rationalised on the basis that the plaintiff’s lack of control and restricted access speak to the core interests protected by the tort. Given the Court’s finding that access restrictions may be reasonably imposed upon occupiers under the Body Corporate’s modified rules, the decision’s limited effect is to provide an individual proprietor with a figurative right of access. Outside of clarifying these doctrinal uncertainties, the decision does not produce lasting ramifications for private nuisance.