Open Access Te Herenga Waka-Victoria University of Wellington
Browse
thesis_access.pdf (278.66 kB)

The law of private nuisance following Wu: Emanation and access

Download (278.66 kB)
thesis
posted on 2021-11-14, 04:48 authored by Mazenier, Matthew

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.

History

Copyright Date

2013-01-01

Date of Award

2013-01-01

Publisher

Te Herenga Waka—Victoria University of Wellington

Rights License

Author Retains Copyright

Degree Grantor

Te Herenga Waka—Victoria University of Wellington

Degree Name

LL.B. (Honours)

ANZSRC Type Of Activity code

970118 Expanding Knowledge in Law and Legal Studies

Victoria University of Wellington Item Type

Research Paper or Project

Language

en_NZ

Victoria University of Wellington School

School of Law

Advisors

Atkin, Bill

Usage metrics

    Theses

    Categories

    Exports

    RefWorks
    BibTeX
    Ref. manager
    Endnote
    DataCite
    NLM
    DC