Aerial view of yellow canola fields with a road in the middle and single red car on the road

The prevention and resolution of land use conflict is a prime objective of town planning and environmental law. Long before these areas of public law developed as discreet disciplines in the twentieth century, the common law had evolved a sophisticated system for resolving private land use conflicts.

The recent Western Australian Supreme Court case of Marsh v Baxter [1] bears witness to this tradition and the common law’s enduring relevance to contemporary social issues. I have commented previously on the use of the common law in the settling of planning and environmental disputes. [2]

A claim was brought against a farmer (Baxter) for the financial loss suffered by neighbouring farmers (the Marshes), when genetically modified (GM) canola was blown by the wind, during harvesting, across a buffer onto the Marshes’ land, thereby allegedly compromising a contract with an organic certifying body.

The Marshes’ claim was unsuccessful. The damage was caused not by the GM nature of the canola, but the method of harvesting[3], which involved cropping in swathes and stacking in windrows.  An alternative method, ‘direct heading’ or ‘direct harvesting’ should have been employed, it was claimed. The Court was not convinced, for several reasons. First, the growing of the GM canola in this case was not illegal[4]. Secondly, the cropping method was a legitimate farming practice. Thirdly, the cropping had been carried out competently. Fourthly, the effect on the Marshes’ contract was not reasonably foreseeable.

Unsurprisingly the Marshes’ claim was brought in nuisance and negligence. These are the obvious common law causes of action in a land use conflict case. Negligence is a body of law that is an expression of the biblical injunction to love your neighbour.  Legally, that means you will not injure neighbour, subject to certain qualifications[5].

Nuisance is an area of tort law with a longer pedigree. The central principle is that you will not interfere unreasonably with the enjoyment of another’s land. This central principle is less qualified in its application than the underlying principles in negligence. In other words, it is stricter. The Court expressed surprise in Marsh v Baxter that the plaintiff’s case concentrated on negligence and not nuisance[6].

There were several findings of legal principle in the judgment of Kenneth Martin J in Marsh v Baxter, which should be noted. One was the affirmation of the principle that it is only in exceptional negligence cases that damages will be awarded to compensate for financial, that is economic, loss[7]. This is a limitation that is not supported by strong logic but rather practical concerns about a perceived need to limit the extent to which economic loss can be litigated. Generally, in negligence, recovery is only possible for physical damage to persons or property[8]. Nuisance, on the other hand, is not constrained by that limitation.

Recently in Western Australia, statute law, in the form of the Civil Liability Act 2002 (WA) has to some extent made it more difficult for plaintiffs in negligence cases, among other things, to prove causation. The Court in Marsh v. Baxter said that Act does not apply to nuisance.[9]

In conclusion, Marsh v Baxter applies well-established common law principles to an unusual set of facts, having at its core the growing of a GM crop. The common law is lightly touched by the Civil Liability Act 2002 (WA) but is not substantially affected. The case confirms the rule that damages are not available in negligence for pure economic loss. The case also shows that the foundation principles of the law of nuisance, which in England have remained unchanged for 100 years and were affirmed in Barr v Biffa Waste Services Limited[10], as described in my earlier article,[11] continue to apply in Western Australia. These cases affirm my experience over many years that land use conflict matters lie at the confluence of town planning and environmental law.

[1] [2014] WASC 187

[2] See in this Blog ‘Buffers Setbacks and Development’, October 24 2012

[3] [2014]WASC 187, [316]

[4] Under the Genetically Modified Crop Free Areas Act 2003 (WA); exemption order published in the Government Gazette, 25 January 2010

[5] Famously, this principle was enunciated by Lord Atkin in the ‘snail in the bottle’ case, Donohue v. Stevenson [1932] AC 562, quoted with approval by Kenneth Martin J at [1]

[6] [2014] WASC 187, [307]

[7] [2014] WASC 187, [336]

[8] Ibid and at [338]

[9]  [2014] WASC 187,  [676]

[10] [2012] EWCA Civ 312

[11] See in this Blog ‘Buffers Setbacks and Development’, October 24 2012