Core principles of tort - Nuisance and the rule in Rylands v...

Learning Outcomes

This article explains the core principles of nuisance and the rule in Rylands v Fletcher, including:

• Distinguish and define private and public nuisance, including the essential elements (nature of interference, rights affected, and the proprietary interest requirement)
• Assess when interference is substantial and unreasonable, considering duration, frequency, locality, sensitivity, malice, and foreseeability, with reference to key authorities
• Identify who may sue or be sued in nuisance, addressing exclusive possession and liability for creation, adoption, or continuation, and the roles of landlords, occupiers, licensees, and agents
• Explain strict liability under Rylands v Fletcher, including non-natural use, escape, foreseeability of damage, and the boundaries of the tort
• Analyse and apply defences in nuisance and Rylands v Fletcher, distinguishing effective (e.g., prescription, statutory authority) from ineffective arguments (e.g., coming to the nuisance)
• Evaluate and recommend appropriate remedies, including damages, prohibitory and mandatory injunctions, and abatement, with practical considerations for relief
• Differentiate nuisance from negligence and trespass, and apply the actionable threshold to realistic problem scenarios and multiple-choice questions
• Suggest practical legal steps for clients facing or alleged to have caused actionable nuisance, and apply these doctrines in structured advice

SQE2 Syllabus

For SQE2, you are required to understand nuisance and the rule in Rylands v Fletcher from both a practical and procedural standpoint, with a focus on the following syllabus points:

• understanding the essential elements of private and public nuisance (including who can claim, types of actionable damage, and necessary unreasonable interference)
• advising on whether conduct constitutes a nuisance or falls under Rylands v Fletcher, including the strict liability basis and what counts as a "non-natural" use of land
• identifying appropriate remedies and defences
• recognizing and applying the distinct requirements for who can claim, the types of loss recoverable, and the differences from trespass and negligence
• analyzing scenario-based and multiple-choice questions involving land, interference, and strict liability

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 best describes when private nuisance is actionable?
   a) Any minor inconvenience, regardless of duration.
   b) Only with unreasonable and substantial interference with land.
   c) Only where personal injury occurs.
   d) Where the interference was deliberate.
2. Who is the most appropriate defendant in an action under the rule in Rylands v Fletcher?
   a) The occupier of land from which a dangerous substance accumulated and escaped.
   b) Any neighbouring tenant, regardless of control.
   c) The occupier's family.
   d) The local planning authority.
3. In nuisance, can a lawful visitor claim for noise disturbance if they do not have a proprietary interest in the land?
   a) Yes
   b) No

Introduction

Nuisance and the rule in Rylands v Fletcher concern unlawful interferences with a person's use or enjoyment of land, as well as strict liability for certain escapes of dangerous materials. A solid understanding of these areas is key for anyone handling disputes around interference with land, property rights, or the impact of dangerous activities nearby.

Key Term: private nuisance
Private nuisance is an unreasonable and substantial interference with a person’s use or enjoyment of land, or with rights connected to it.

Key Term: public nuisance
Public nuisance is conduct that unreasonably affects the comfort, convenience, or health of a class of the public, requiring particular harm or damage to claim.

Key Term: unreasonable interference
Unreasonable interference is a use of land that goes above and beyond what is normal or expected, taking into account duration, intensity, character of the locality, sensitivity of the claimant, and in some cases, the motive of the defendant.

Key Term: the rule in Rylands v Fletcher
The rule in Rylands v Fletcher imposes strict liability when something dangerous, accumulated on land for a non-natural use, escapes and causes foreseeable damage to property.

Private Nuisance

Private nuisance protects an individual's rights to use and enjoy their land without substantial and unreasonable interference. It is a tort against land, not the person, and the scope is broader than trespass (which requires direct physical entry) but is limited by the requirement for the harm to be more than trivial.

Who can sue and be sued

An action in private nuisance may only be brought by a person with a proprietary interest, namely the owner, tenant, or another who possesses exclusive possession of the affected land. This rule was confirmed in Hunter v Canary Wharf, where individuals such as family members, guests, and licensees without a proprietary interest could not sue.

The defendant can be any person who creates, adopts, or continues the nuisance, or is in control of the land from which the nuisance emanates. Liability can extend to:

• Occupiers of land who permit or fail to abate a nuisance, even if not the creator
• Landlords, but only if they have expressly or impliedly authorised the nuisance, or if the nuisance is a result of the terms of the letting

Where a nuisance is created by tenants, visitors, strangers, or even natural events, the occupier may become liable if they know or should have known about the nuisance and fail to take reasonable steps to remedy it—such as failing to repair or remove a risk.

Types of actionable nuisance

The three main categories are:

• Encroachment onto land (e.g. tree roots, overhanging branches, Japanese knotweed)
• Physical damage to land or to items forming part of the land (e.g. buildings, crops, growing plants)
• Loss of amenity (such as noise, odour, smoke or dust, where this goes beyond what is tolerable in the circumstances)

Physical damage is always actionable regardless of the character of the area. Loss of amenity or use may be influenced by the environment (what is tolerable in an industrial zone may not be in a residential one), but physical damage removes the need to prove unreasonableness in context.

Assessing unlawfulness

Not all interferences are actionable in nuisance: the law only protects from substantial and unreasonable interference. The threshold is met where, in all the circumstances, the defendant’s activity goes beyond tolerable neighbourly behaviour. In determining this, several factors are considered:

• Duration and frequency: Persistent and ongoing interference (such as daily noise, continuous dust, or repeated vibrations) is more likely to be actionable than brief or one-off incidents. However, even a short-term event may be actionable if particularly severe or causes significant harm (e.g. loud pile-driving at night).
• Character of locality: The expectation of use and enjoyment varies by location. An activity reasonable in a heavy industrial district may be unreasonable in a quiet rural or residential area. However, if physical damage to property results, the locality is irrelevant—the interference will almost always be classed as unreasonable.
• Sensitivity: The law’s standard is the ‘ordinary user’—only damage or inconvenience to a person using the land in an ordinary way is actionable. Unusual or abnormal sensitivity (e.g. damage to especially delicate equipment, crops, or processes) will defeat a claim if the same level of interference would not harm ordinary use.
• Motive/malice: If the defendant acts with the predominant motive of causing annoyance, or otherwise in bad faith, conduct which would otherwise be reasonable may become unreasonable due to malicious intent.
• Reasonableness of user: If the defendant takes all practical precautions to avoid causing harm, and the activity is one that society tolerates, the court may find in their favour.

Worked Example 1.1

A bakery operates machinery emitting occasional vibrations and noise. A pianist next door, whose grand piano goes out of tune from the vibrations, brings a claim. Is nuisance established?

Answer:
Nuisance is not established unless the interference is unreasonable to the average occupant. Because the pianist is particularly sensitive and the interference is not substantial or typically damaging to ordinary users, the claim is likely to fail.

Remember, if the interference would affect any normal user of the land, the claimant can recover for the full loss, even if their use is unusually sensitive (McKinnon Industries principle), but the threshold question is whether the interference is unreasonable to a typical occupier.

Defining actionable loss

Actionable loss is not restricted to physical damage. Noxious fumes or odours, vibrations, smoke, dust, excessive light, or any persistent condition that materially reduces the comfort or utility of using land in a reasonable way can constitute actionable loss. It is not necessary to show a health risk—loss of sleep, inability to use part of the garden, persistent loss of television signal (where the emanation originates from land), or inability to do ordinary household tasks may all suffice, if unreasonable in the context.

Public Nuisance

Public nuisance exists where an act or omission materially affects the reasonable comfort and convenience of a class of the public. It is both a tort and a crime. In public nuisance actions:

• There must be an unreasonable interference with a public right, such as obstruction of a highway, pollution, or large-scale disturbance.
• To claim in tort, the claimant must show they suffered special or particular damage beyond that suffered by the general public—such as personal injury or property damage, not just inconvenience common to all affected people.
• There is no requirement for the claimant to have a proprietary interest (contrast with private nuisance).

The affected class must be more than a handful of individuals; case law has found “a cross-section of the public” or a definable group affected by the activity to suffice (e.g. residents near a landfill, highway users exposed to repeated danger).

Examples of public nuisance include widespread exposure to hazardous emissions, major obstructions to roads or access, or circumstances where a nuisance impacts broader public health or safety more broadly than typical neighbour disputes.

Remedies in Nuisance

Remedies aim to balance the rights and interests of neighbouring land users. The main remedies are:

• Damages: Monetary compensation for physical loss, consequential financial loss, or discomfort lost. General damages can be awarded for loss of amenity even without physical injury. Damages are subject to normal principles of causation and remoteness, and all consequential loss reasonably foreseeable from the nuisance may be recoverable.
• Injunction: A discretionary court order prohibiting, restricting, or mandating certain conduct to prevent or control ongoing or anticipated nuisance. The court may issue a prohibitory injunction (restricting the activity), or a mandatory injunction (requiring action to correct or abate the nuisance). In some modern cases, damages may be awarded instead of or in addition to an injunction, particularly if the public benefit outweighs the private harm (see Coventry v Lawrence [2014]).
• Abatement: In limited cases, a claimant may take reasonable self-help measures to abate the nuisance, such as lopping overhanging branches encroaching onto their land (having given reasonable notice). The abatement must be performed without causing unnecessary damage or trespass.

Where physical damage results, damages will usually be preferred, but an injunction may be awarded where ongoing or repeated interference is likely. The choice of remedy depends on the facts, weighing up the severity, frequency, and wider effects of the activity.

Exam Warning

In nuisance, claimants must have a proprietary interest in the affected land. Family members and licensees (without exclusive possession) cannot sue, even if they suffer discomfort.

Worked Example 1.2

Simon moves next to a long-operating night club and complains of noise disrupting his sleep. Can the club raise "coming to the nuisance" as a defence?

Answer:
No. "Coming to the nuisance" is not a defence. The club cannot avoid liability simply because Simon moved near it knowing its activities.

Defences to Nuisance

Effective defences, if established, bar or limit liability in nuisance. These include:

• Prescription: Where the interference has been actionable and continuous for at least 20 years with no interruption or legal challenge, the defendant may acquire a prescriptive right to continue. This is rare, and the clock runs from when the activity first became an actionable nuisance for the current claimant.
• Statutory authority: If a statute expressly or by necessary implication authorises the activity, any resulting nuisance, if unavoidable, may be excused. The defendant must demonstrate the nuisance is the inevitable consequence of the authorised activity.
• Consent: Where the claimant has agreed, expressly or by clear conduct, to tolerate the activity, claims may fail. The threshold is high—mere tolerance or passive acquiescence is not enough.
• Act of God: Extraordinary natural events, so unforeseeable and uncontrollable that no reasonable precautions would suffice, will bar liability if the defendant had no opportunity to prevent the harm.
• Act of a stranger: If the nuisance is directly and solely caused by a third party over whom the defendant has no control and whose actions could not reasonably be foreseen or prevented.

Ineffective defences commonly (and often wrongly) argued include:

• The claimant “came to the nuisance”—relocating near an existing toxic or noisy activity is not a bar to recovery, unless there is clear evidence the claimant changed the use of the land to create the problem (e.g., building a new structure to facilitate the complaint).
• Public utility or social benefit—the fact that the defendant’s activity benefits the wider community does not absolve liability, but may be considered when deciding on whether to award damages instead of an injunction.
• Claimant’s hypersensitivity—nuisance is assessed by the impact on reasonable land users, not their unique sensibilities, but abnormal sensitivity is only fatal if the activity would not affect an ordinary user.

The Rule in Rylands v Fletcher

Rylands v Fletcher establishes an instance of strict (no-fault) liability. The elements for a claim are:

1. Accumulation: The defendant brings onto their land, or collects and keeps, a dangerous thing—one likely to cause harm if it escapes. A "dangerous thing" includes water, chemicals, toxins, electricity, explosives, and other items not naturally present that present an increased risk.
2. Non-natural use: The accumulation is for a non-natural use of the land. This is interpreted as an extraordinary, unusual, or special use not typical for land of that character (e.g., storing large volumes of chemicals in a residential area).
3. Escape: The thing escapes from the defendant’s property or control to another’s, causing harm. Actual escape is essential; damage contained within the defendant’s premises will not suffice.
4. Foreseeable damage: The escape causes property damage of a type that is reasonably foreseeable as a consequence (Cambridge Water v Eastern Counties Leather).

Rylands v Fletcher typically applies to isolated "escapes" rather than continuous or recurrent interferences (which fall under nuisance). The claim is available only for property damage; it does not cover personal injury or pure economic loss.

As with private nuisance, only those with a proprietary interest in the affected land may claim. The principal defendant is normally the occupier or person in control of the land from which the escape originated.

Key differences from nuisance

• Rylands v Fletcher is a strict liability tort; negligence or intent is not required, unless the defendant can show an effective defence exists.
• The tort applies to single incidents of "escape"; private nuisance often addresses repeated or ongoing interferences.
• The principle demands non-natural use at the time of the escape, not historical use alone.
• Only damage to property is actionable; personal injury is not.

Worked Example 1.3

A factory stores large quantities of chemicals for manufacturing. An accidental leak causes the chemicals to escape and damage a neighbour’s crops. Is the factory liable under Rylands v Fletcher?

Answer:
Yes, if the chemicals are dangerous, their storage is non-natural, and their escape causes foreseeable property damage. Liability is strict—no need to prove negligence.

Defences to the Rule in Rylands v Fletcher

Available defences include:

• Act of a stranger: Where the escape is solely caused by an unforeseeable act of an independent third party, outside the defendant’s control.
• Act of God: A natural event so extraordinary that no reasonable foresight or diligence could guard against the risk.
• Statutory authority: Where the activity or accumulation is expressly or necessarily permitted by statute.
• Consent: Where the claimant has expressly or impliedly agreed to accept the risk.
• Contributory negligence: If the claimant’s own failure to act prudently contributed to the harm, their recovery may be reduced proportionally.

As in nuisance, commonly pleaded but ineffective defences (e.g., “public benefit,” or the claimant “came to the risk”) will generally not defeat liability. The existence of planning permission is not a defence, though it may be relevant to assessing the character of the locality or non-natural use.

Revision Tip

Always distinguish strict liability under Rylands v Fletcher (requires proof of escape, non-natural use, and damage) from negligence (requires proof of fault) and nuisance (ongoing, unreasonable interference).

Key Point Checklist

This article has covered the following key knowledge points:

• Only those with a proprietary interest in affected land can sue in private nuisance; mere occupation or presence is insufficient.
• Private nuisance requires substantial and unreasonable interference with land rights or enjoyment, judged in light of duration, locality, and expected use.
• Public nuisance requires unreasonable interference with the rights of a class of the public, and claimants in tort must show particular damage beyond the class.
• In both nuisance and Rylands v Fletcher, physical damage to land or serious loss of amenity is actionable; mere trivial inconveniences are not.
• The rule in Rylands v Fletcher imposes strict liability for the escape of dangerous things accumulated for non-natural uses of land, leading to property damage.
• Defences include prescription (for private nuisance), statutory authority, act of God/nature, act of a stranger, consent, and contributory negligence; planning permission and “coming to the nuisance” are not defences.
• Remedies include damages, injunctions (both prohibitory and mandatory), and, where appropriate, abatement by the claimant.

Key Terms and Concepts

• private nuisance
• public nuisance
• unreasonable interference
• the rule in Rylands v Fletcher