The value of the common law

The common law was most commonly used to protect against environmental harm during the Victorian period; where the idea of laissez faire permeated the law. [36] However, after changes in the perception of the appropriate method of protecting the environment and subsequent inadequacies in the common law it became uncommon to use common law in this way. Despite this change in attitude the common law has the potential to make a valuable contribution to the protection of the environment.

While Barr has not substantially varied the value of the common law in environmental cases the extension of protection via permits has diminished its value, continuing in the same vein as previous cases. One of the potential uses of the common law is to represent individual interests within the regulatory framework, usually via granting compensation or interdicts. This ability to challenge decisions gives individuals the opportunity to obtain remedies greater than those available than that under judicial review; the usual method of challenging regulatory decisions, which can result in no change to the applicants situation.

The importance of allowing individuals to participate in environmental planning is recognised to be important in supplementing and challenging the regulatory body[38] as it encourages greater awareness of the environment, provides another incentive for regulators to carefully consider the factors surrounding a decision and creates an avenue of appeal against decisions which might have no appeal mechanism. The common law can also provide a method to challenge accepted science and risk assessment procedures.

Within society there are many standards of scientific evidence and risk assessment procedures, and while regulatory bodies choose the standards that they judge against it must be in accordance with public opinion in order for the body to act in the public interest. By being able to challenge these preconceptions individuals have a greater role in protecting the environment, something that is necessary for a unified environmental strategy. It also helps improve and refine the standards used by the regulatory bodies, which in turn improves the quality of their decisions and its reflection of public opinion.

While the common law is able to provide such benefits to both individuals and the regulatory body the ideology underlying the common law substantially differs from that under modern environmental protection. The modern method of environmental protection is to act collectively,[40] which is difficult to reconcile with the individualistic viewpoint of the common law. Numerous cases, including Barr, have shown that the interests of private individuals tend to oppose that of the general public.

This is intrinsic to the common law; it only concerns itself with private rights so cannot take into account the wider problems of the situation, such as the environmental damage’s detrimental effect to the overall ecosystem. [42]. This individualistic approach can also be seen in the criteria for starting an action, as only those who have a proprietary interest can do so. [43] This fails to take into account the wider picture, as it excludes individuals and environmental groups who would take cases beyond private commercial interest.

While it is recognised that courts should not ignore private rights for the public benefit[44] it is difficult to give adequate weight to individual interests when it fails to acknowledge these other concerns. There are additional problems with using the common law as the main method of environmental protection. The subjectivity of principles such as reasonableness and foreseeability in nuisance prevents certainty within cases, which can dissuade individuals from asserting their rights.

It also results in the ability of nuisance to change longstanding problems to be negligible. [45] Another major problem with the common law is that it merely reactive, providing remedies for damages that have already occurred. [46] This is inadequate, given the importance of preventing environmental damage from further harming the environment. The main issue in utilising the common law in environmental cases is the individualistic view it prescribes, which is in conflict with the modern view of the requirement to act collectively on environmental issues.

It is for this reason and problems with the procedure under the common law that it cannot be used as the main protection from environmental damage. However, as a supplement to the regulatory process, and occasionally a method of challenge, the common law can shape environmental law through the representation of differing views and assertions of rights. This allows individuals to participate in environmental protection, and in turn this improves the protection granted by regulatory bodies.