Regulation and tort
By Maria Lee, on 13 November 2012
Professor Maria Lee is working on the relationship between tort and regulation. Environmental protection is a public interest dominated by a complex and more or less comprehensive system of state and supranational regulation. But this is also the realm of private law, since individual rights or interests (eg property, physical integrity, amenity) may be affected by the regulation itself or by a regulated activity. What happens when these areas of law meet is unclear, particularly how the regulatory decision should feed into the determination and protection of rights and interests in private law.
Topical examples with the potential for private and public interests and law to meet include windfarms and airports (as well as many more mundane cases), where regulatory decisions about location and operation are taken in what the regulator or government has determined to be the public interest. Individuals who find their health, amenity or property adversely affected may turn to the private law of tort for protection. Regulatory norms and processes at their best strike a reasoned balance between various, sometimes conflicting, public or collective interests, and at their best will also have considered the impact of desirable activities on private rights and interests. The operation of private law may disrupt these careful regulatory arrangements; but without private law, individual rights and interests may be inadequately protected