Nuisance and the rule in Rylands v Fletcher - Private nuisance

Learning Outcomes

This article explores the tort of private nuisance and the related rule in Rylands v Fletcher. It details the elements required to establish liability for unreasonable interference with land use and enjoyment, and the distinct requirements for liability following an escape of dangerous things from land. After reading this article, you should be able to identify the core principles of private nuisance, distinguish it from other torts like public nuisance and trespass, understand the specific conditions for applying the rule in Rylands v Fletcher, and recognise the available defences and remedies for both.

SQE1 Syllabus

This article covers key aspects of the SQE1 syllabus concerning private nuisance and the rule in Rylands v Fletcher. For the SQE1 assessment, you need a practical understanding of these torts to apply the law correctly to given scenarios.

Pay particular attention in your revision to:

• The elements required to establish a claim in private nuisance, including unreasonable interference and who has standing to sue.
• Factors determining 'unreasonable use' of land, such as locality, duration, sensitivity, and malice.
• Available defences to private nuisance, such as prescription and statutory authority.
• Remedies for private nuisance, primarily damages and injunctions.
• The specific elements required for liability under the rule in Rylands v Fletcher, including accumulation, non-natural use, escape, and foreseeable damage.
• Defences applicable to a claim under Rylands v Fletcher.
• Distinguishing private nuisance and Rylands v Fletcher from public nuisance and trespass to land.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following claimants is most likely to have standing to sue in private nuisance?
   1. A guest staying overnight at a property affected by noise.
   2. A tenant leasing the property affected by smells.
   3. A child living with their parents in the affected property.
   4. A contractor working temporarily at the affected property.

2. True or False: Physical damage to the claimant's property is always required to establish private nuisance.

3. What is the key requirement added by the House of Lords in Cambridge Water Co v Eastern Counties Leather plc to the rule in Rylands v Fletcher?
   1. Malice on the part of the defendant.
   2. That the escape must be continuous.
   3. That the damage caused by the escape must be reasonably foreseeable.
   4. That the claimant must have 'come to the nuisance'.
4. Which defence is available for private nuisance but generally not for public nuisance?
   1. Statutory authority.
   2. Prescription.
   3. Consent.
   4. Act of God.

Introduction

The law of tort protects various interests, including the use and enjoyment of land. Private nuisance and the rule in Rylands v Fletcher are two specific torts focused on this area. Private nuisance deals with indirect and unreasonable interferences, while the rule in Rylands v Fletcher imposes strict liability for the escape of dangerous things brought onto land. Understanding these torts, their elements, defences, and remedies is essential for advising clients whose property rights are affected or who face potential liability for their land use. This article will focus on these two related areas, distinguishing them from public nuisance and trespass to land.

Private Nuisance

Private nuisance is concerned with protecting a person's right to use and enjoy their land, free from unlawful interference by neighbours or others. It is distinct from trespass, which involves direct physical entry onto land, and public nuisance, which affects a class of people rather than an individual landowner.

Key Term: Private Nuisance
An unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.

An interference must be both substantial and unreasonable to be actionable.

Who Can Sue?

Historically, only those with a legal interest in the land (e.g., owners, tenants in exclusive possession) could sue in private nuisance. This principle was affirmed in Hunter v Canary Wharf Ltd [1997] AC 655, which held that individuals without a proprietary interest, such as licensees (e.g., family members, lodgers, guests), could not bring a claim. The tort protects the utility of the land, not the personal comfort of individuals separate from their interest in the land.

Who Can Be Sued?

Liability can fall upon:

1. The Creator: The person who originally creates the nuisance, even if they no longer occupy the land from which it emanates.
2. The Occupier: The current occupier of the land from which the nuisance originates is typically liable. This includes liability for nuisances created by employees (vicarious liability) or independent contractors where the work carries special danger. An occupier can also be liable for nuisances created by trespassers or natural causes if they 'adopt' or 'continue' the nuisance (Sedleigh-Denfield v O'Callaghan [1940] AC 880). Adopting involves making use of the thing causing the nuisance, while continuing involves failing to take reasonable steps to abate it once aware (or ought to have been aware) of its existence.
3. The Landlord: A landlord may be liable if they expressly or impliedly authorised the nuisance by letting the property for a purpose that inevitably causes nuisance, or if they knew or ought to have known of the nuisance before letting, or if they covenanted to repair but failed to do so.

Unlawful Interference

For an interference to be actionable, it must be deemed unlawful, meaning it is both substantial and unreasonable. Trivial interferences are not sufficient. The law seeks to balance the right of an occupier to use their land as they wish against the right of their neighbour to enjoy their land without interference.

Key Term: Unlawful Interference
An interference that is substantial (more than trivial) and unreasonable in all the circumstances.

The concept of reasonableness is central. It is judged objectively, considering what is normal and acceptable in the particular context. Factors influencing reasonableness include:

1. Nature of the Locality: The character of the neighbourhood is relevant, especially for amenity nuisances (noise, smell, dust). What constitutes a nuisance in a quiet residential area might be acceptable in an industrial zone (Sturges v Bridgman (1879) 11 Ch D 852). However, locality is generally irrelevant if the nuisance causes physical damage to property (St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642). Planning permission does not automatically change the character of a locality but can be a factor (Coventry v Lawrence [2014] UKSC 13).

2. Duration and Frequency: Continuous or frequently recurring interferences are more likely to be considered unreasonable than temporary or isolated incidents. However, even temporary interference can be a nuisance if it is substantial (e.g., construction noise at night).

3. Utility of the Defendant's Conduct: The social value or public benefit of the defendant's activity is generally not a defence but might influence the choice of remedy (e.g., awarding damages instead of an injunction).

4. Abnormal Sensitivity: If the claimant's use of land is abnormally sensitive, the interference might not be unreasonable if it wouldn't affect an ordinary user (Robinson v Kilvert (1889) 41 Ch D 88). However, if the interference would affect an ordinary user, the defendant is liable for the full extent of the claimant's loss, even if exacerbated by sensitivity (the 'egg-shell skull' rule applied to land use).

5. Malice: If the defendant acts with malice or spite towards the claimant, an otherwise reasonable activity may become unreasonable and actionable (Christie v Davey [1893] 1 Ch 316; Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468).

Key Term: Reasonable User
The principle that the law balances the defendant's right to use their land against the claimant's right to enjoy their land without undue interference, based on what is considered reasonable in society.

Worked Example 1.1

Amelia operates a small bakery from her home in a quiet village. Her neighbour, Ben, recently started keeping several cockerels which crow loudly from 4 am every morning, significantly disrupting Amelia's sleep and affecting her ability to concentrate on her baking.

Is Ben's activity likely to constitute an unreasonable interference?

Answer: Yes, this is likely to be an unreasonable interference. Factors include the nature of the locality (quiet village), the time and frequency of the noise (early morning, daily), and the impact on Amelia's enjoyment of her property and her business. Keeping cockerels might be normal in a rural setting, but the noise level and timing could render it unreasonable here. The utility of keeping cockerels is unlikely to outweigh the substantial interference.

Defences to Private Nuisance

Several defences may be available:

1. Prescription: If the nuisance has been actionable by the claimant (or their predecessors) for a continuous period of 20 years without complaint, the defendant may acquire a prescriptive right to continue the activity. The time runs from when the activity becomes a nuisance to the claimant, not from when the activity started (Sturges v Bridgman).
2. Statutory Authority: If an activity is authorised by statute, and the nuisance is an inevitable consequence of that activity carried out without negligence, this provides a complete defence (Allen v Gulf Oil Refining Ltd [1981] AC 1001). Planning permission alone is not statutory authority.
3. Consent (Volenti non fit injuria): If the claimant expressly or impliedly consented to the nuisance.
4. Contributory Negligence: If the claimant contributed to the damage suffered, damages may be reduced.
5. Act of God/Nature: An occupier is generally not liable for nuisances caused by natural events unless they adopt or continue the nuisance by failing to take reasonable steps.
6. Act of a Third Party/Trespasser: An occupier is not liable for a nuisance created by a third party (like a trespasser) unless they adopt or continue it.

Note: It is not a defence that the claimant 'came to the nuisance' (i.e., moved to the area knowing the activity was ongoing). It is also generally not a defence that the defendant's activity provides a public benefit, although this may influence the remedy.

Remedies for Private Nuisance

The primary remedies are:

1. Injunction: An order requiring the defendant to stop (prohibitory) or take steps to reduce (mandatory) the nuisance. This is an equitable remedy granted at the court's discretion, usually where damages are inadequate. The court balances the interests of the parties and may consider public interest (Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287; refined in Coventry v Lawrence).
2. Damages: Monetary compensation for physical damage to property or diminution in its value, and for loss of amenity (interference with enjoyment). Damages can cover past interference and, in lieu of an injunction, future interference.
3. Abatement: Self-help remedy where the claimant takes steps to stop the nuisance (e.g., cutting overhanging branches). Notice to the defendant may be required if entry onto their land is necessary.

Exam Warning

Remember that private nuisance protects interests in land. Claims for personal injury are generally not recoverable in private nuisance; negligence is the appropriate tort. Focus on interference with use/enjoyment or physical damage to the land itself.

The Rule in Rylands v Fletcher

This rule imposes strict liability (liability without proof of fault) in specific circumstances involving the escape of dangerous things from land. It originated from the case Rylands v Fletcher [1868] LR 3 HL 330.

Key Term: Rylands v Fletcher
A rule imposing strict liability on an occupier who brings onto their land and accumulates something likely to do mischief if it escapes, provided the use of land is non-natural and the escape causes foreseeable damage of the relevant type.

Elements of the Rule

To establish liability under Rylands v Fletcher, the claimant must prove:

1. Accumulation: The defendant must voluntarily bring onto their land and accumulate (collect and keep) something likely to do mischief if it escapes. Things that occur naturally on the land are generally excluded.
2. Non-Natural Use: The defendant's use of the land must be considered 'non-natural'. This means it must be some special use bringing with it increased danger to others, beyond the ordinary use of land (Rickards v Lothian [1913] AC 263). What constitutes non-natural use depends on the circumstances, time, and location. Storage of large quantities of chemicals or water might qualify, but domestic water supply might not (Transco plc v Stockport MBC [2003] UKHL 61). The use must involve an exceptionally high risk.
3. Likely to Do Mischief if it Escapes: The accumulated substance need not be inherently dangerous, but must be likely to cause damage if it escapes (e.g., large volumes of water, chemicals, gas, fire (but see Stannard)).
4. Escape: The substance must escape from the defendant's land (over which they have control) to land outside their control. An incident confined entirely to the defendant's land is not covered (Read v J Lyons & Co Ltd [1947] AC 156).
5. Foreseeable Damage: The damage caused by the escape must be of a type that was reasonably foreseeable (Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264). This aligns the rule more closely with nuisance and negligence regarding remoteness.

Key Term: Non-Natural Use
A use of land that is extraordinary, unusual, or involves increased danger, going beyond the ordinary and common use of land in the locality.

Key Term: Escape
Movement of the accumulated substance from a place the defendant controls to a place outside their control.

Worked Example 1.2

A factory stores large drums of industrial solvent on its site, which is located near a river. Due to negligent maintenance by an independent contractor hired by the factory, one drum leaks, and the solvent seeps into the ground, eventually contaminating the river and killing fish downstream belonging to a fish farm.

Can the fish farm owner bring a claim under Rylands v Fletcher against the factory?

Answer: Yes, potentially.

1. Accumulation: The factory brought and accumulated industrial solvent (likely to do mischief) onto its land.
2. Non-Natural Use: Storing large quantities of industrial solvent may well be considered a non-natural use of land.
3. Escape: The solvent escaped from the factory's land into the river (outside their control).
4. Foreseeable Damage: Damage to aquatic life from escaped solvent seems reasonably foreseeable.
   Strict liability applies, so the contractor's negligence is irrelevant to the factory's liability under this rule (though it might be relevant in negligence). Defences would need consideration.

Defences to Rylands v Fletcher

Defences are similar to those in nuisance, but prescription does not apply:

1. Consent: The claimant expressly or impliedly consented to the accumulation.
2. Act of God: The escape was caused by natural forces so exceptional that they could not have been foreseen or guarded against.
3. Act of a Stranger: The escape was caused by the unforeseeable act of a third party over whom the defendant had no control (Perry v Kendricks Transport Ltd [1956] 1 WLR 85).
4. Statutory Authority: The accumulation was required or authorised by statute.
5. Contributory Negligence: The claimant’s fault contributed to the damage.
6. Common Benefit: If the accumulation was maintained for the common benefit of the claimant and defendant.

Remedies under Rylands v Fletcher

The primary remedy is damages for the foreseeable damage caused to property. As with private nuisance, damages for personal injury are not recoverable under this rule (Cambridge Water; Transco). An injunction might be sought in quia timet actions (to prevent a threatened escape) but is less common once an escape has occurred.

Revision Tip

Although Rylands v Fletcher imposes strict liability, the requirement for non-natural use and foreseeable damage significantly limits its scope. Consider whether a claim might be better pursued in negligence or private nuisance, depending on the facts, particularly whether the interference was ongoing or an isolated escape, and the type of damage caused.

Key Point Checklist

This article has covered the following key knowledge points:

• Private nuisance protects against unlawful (substantial and unreasonable) interference with the use or enjoyment of land.
• Only claimants with a proprietary interest in land can sue in private nuisance.
• Liability can fall on the creator, occupier, or sometimes the landlord.
• Unreasonableness depends on factors like locality, duration, frequency, sensitivity, and malice.
• Defences include prescription (20 years), statutory authority, consent, act of God/stranger. Coming to the nuisance is not a defence.
• Remedies are damages (for property damage/loss of amenity) and injunctions.
• The rule in Rylands v Fletcher imposes strict liability for damage caused by the escape of something dangerous accumulated for a non-natural use of land.
• Key elements are accumulation, non-natural use, escape, and foreseeable damage.
• Personal injury is not recoverable under Rylands v Fletcher.
• Defences include consent, common benefit, act of God, act of stranger, and statutory authority.

Key Terms and Concepts

• Private Nuisance
• Unlawful Interference
• Reasonable User
• Rylands v Fletcher
• Non-Natural Use
• Escape