Private Nuisance & Rylands v Fletcher Flashcards
Thompson-Schwab v Costaki (CA, 1956)
private nuisance -
‘In the years 1955 and 1956 I daresay that the activities of prostitutes are less taboo in ordinary polite conversation than they were a hundred years ago; and it is true that so far as the evidence in this case goes there is nothing about the activities of the two defendants which is shown to be unlawful in the sense of being illegal or criminal. But it does not, to my mind, follow at all that their activities should, therefore, be regarded as free from the risk or possibility that they cause a nuisance in the proper sense of that term to a neighbour merely because they do not impinge upon the senses — for example, the nose or the ear — as would the emanation of smells or fumes or noises. In other words, the test as it seems to me (and I adopt it for the purposes of this appeal) is that which I have stated, namely, whether what is being done interferes with the plaintiffs in the comfortable and convenient enjoyment of their land, regard being had, to borrow Lord Wright’s language, to the usages in this matter of civilized society, and regard being also had to the character, as proved, of the neighbourhood
The plaintiffs have shown, in my opinion, a sufficient prima facie case to the effect that the activities being conducted at No. 12 Chesterfield Street are not only open, but they are notorious, and such as force themselves upon the sense of sight at least of the residents in No. 13. The perambulations of the prostitutes and of their customers is something which is obvious, which is blatant, and which, as I think, the first plaintiff has shown prima facie to constitute not a mere hurt of his sensibilities as a fastidious man, but so as to constitute a sensible interference with the comfortable and convenient enjoyment of his residence, where live with him his wife, his son and his servants.’ Per Lord Evershed MR.
the sight of prostitutes and their clients entering and leaving neighbouring premises were held to amount to an actionable nuisance as the activity was considered offensive in itself. There was no need to demonstrate that the activities were noisy.
D ran a brothel near C…
Hunter v Canary Wharf (1997, HL)
private nuisance - necessary property right
> ‘The question whether interference with television reception by the presence of the Canary Wharf Tower in the defendants’ urban development area is an actionable nuisance also raises an issue of principle. The starting-point is to notice that what is being complained of is - and this is not meant to suggest that the complaint of interference is in itself at all unreasonable - simply the result of building this building on the land. It is a very large building and its cladding is made of stainless steel. But it is not suggested that it was designed in that way maliciously in order to interfere with the plaintiffs’ television reception. Nor is it suggested that the interference was due to any activity or inactivity on or within the building which might have been stopped or otherwise dealt with by an injunction. There are no other special features about the case, such as an allegation of breach of contract or a breach of any statutory rules. If there is an actionable nuisance here, it can only be because a remedy exists by analogy with the law relating to easements.’ per Lord Hope
Held:
- There is no right of action in nuisance for interference with the television reception.
- An interest in property is required to bring an action in nuisance.
No action in nuisance. A basic principle of the common law was that you could do what you want with your land, short of neighbours having a right or an agreement not to. Too many might be affected otherwise. Is it to say that it is not the type of thing we protect or is it just that D has not done anything wrong by building a building he was entitled to+ no remedy (would be an easement and there is no easement to get a TV signal).
A basic principle of the common law was that you could do what you want with your land, short of neighbours having a right or an agreement not to. Too many might be affected otherwise. Is it to say that it is not the type of thing we protect or is it just that D has not done anything wrong by building a building he was entitled to+ no remedy (would be an easement and there is no easement to get a TV signal).
Facts: Cs sued in nuisance because D’s building of the Canary Wharf Tower had interfered with/stopped their TV signal and in negligence for covering their homes in dust. CA held private nuisance did not protect a right to receive TV signal.
Some of the claimants were owners or tenants of properties, but many of the claimants had no proprietary interest in lane at all. Some were children living with parents, some were relations or lodgers with use of a room and some were spouses of the tenant or owner of the property. The two issues the House of Lords were required to consider were:
- Whether interference with television reception was capable of giving rise to an actionable nuisance
- Whether an interest in property was required to bring an action in
- Fearn v the Board of Trustees of the Tate Gallery (2023, UKSC)
private nuisance
Quotes:
Leggatt LJ = emphasized that there is ‘no conceptual or a priori limit to what can constitute a nuisance’ (at [12]). The law of private nuisance is concerned with ‘maintaining a balance between the conflicting rights of neighbouring landowners’
Holding: The Supreme Court (by a majority of 3 to 2) allows the appeal.
Nuisance could protect the relevant interest here (fairly unanimous). This went well beyond ‘mere overlooking’ = this is intense visual intrusion. Whether D’s behaviour was reasonable was irrelevant. (the focus is on the interference not the behaviour) Cs choosing to live in those flats did not make them unduly sensitive and (contra the minority) it was irrelevant that Cs could take remedial measures.
Facts: The Tate Modern (the Tate), a public art gallery in London, opened a new extension in 2016 called the Blavatnik Building. This building is ten stories high and, on its top floor, has a viewing platform which offers panoramic views of London. The claimants own flats in a block of flats neighbouring the Tate that are at around the same height above ground as the viewing platform and have walls constructed mainly of glass. On the south side of the viewing platform, visitors can see directly into the claimants’ flats. At the time of the trial the viewing platform was open every day of the week and was visited by an estimated 500,000-600,000 people each year. The trial judge found that a very significant number of visitors display an interest in the interiors of the claimants’ flats. Some look, some peer, some photograph, some wave. Occasionally binoculars are used. Many photographs have been posted online. The claimants seek an injunction requiring the Tate to prevent its visitors from viewing their flats from the viewing platform, or alternatively, an award of damages. Their claim is based on the common law of nuisance. The claims were dismissed by the High Court ([2019] EWHC 246 (Ch)) and, for different reasons, by the Court of Appeal ([2020] EWCA Civ 104). The claimants now appeal to the Supreme Court.
Network Rail v Williams (2018, CA)
private nuisance - no action for PEL
[48] ‘The purpose of the tort of nuisance is not to protect the value of property as an investment or a financial asset. Its purpose is to protect the owner of land (or a person entitled to exclusive possession) in their use and enjoyment of the land as such as a facet of the right of ownership or right to exclusive possession. […] The decision of the recorder in the present case extends the tort of nuisance to a claim for pure economic loss…Contrary to the view of the recorder, that would not be an incremental development of the common law by way of analogy but a radical reformulation of the purpose and scope of the tort..’ per Etherton MR.
Reasoning:
Encroachment without physical damage- Japanese knotweed carried the risk of future physical damage to buildings, structures and installations on the land. Its presence, and the mere presence of its rhizomes, imposed an immediate burden on landowners in terms of increased difficulty of developing, and in the increased cost of developing, the land, should the owner wish to do so. Any improvement or alteration of the property required removal of contaminated soil by special, and probably expensive, procedures. For those reasons, Japanese knotweed and its rhizomes were a “natural hazard” which affected the owner’s ability fully to use and enjoy the land. The recorder’s findings of fact in relation to Network Rail’s knowledge of the presence of Japanese knotweed and its failure reasonably to prevent the interference with the respondents’ enjoyment of their properties were sufficient, on the general principles, to give rise to a cause of action in nuisance. A nuisance was committed in the instant case where the encroachment of the rhizomes diminished the utility and amenity of the properties. There was no reason why, in appropriate circumstances, a claimant should not be able to obtain a final mandatory injunction where the amenity value of land was diminished by the presence of root even though there was no physical damage at the time.
Held: Encroachment was not damage per se given no physical damage or change in the soil structure. Interference with the amenity interest is recoverable due to immediate difficulty with developing the land = that is what makes it actionable NOT the fact that the value of the land decreased.
NB: Somewhat suspiciously, the value of the amenity interference was…EXACTLY the same, as the reduction in market value!
Facts: Network Rail appealed against a county court decision allowing the respondents’ claims for private nuisance for the effects of Japanese knotweed on their properties.
The rear wall of the respondents’ adjoining properties abutted an access path owned by Network Rail. The path led to an embankment, also owned by Network Rail, on which a large stand of Japanese knotweed had been present for at least 50 years. Japanese knotweed was a pernicious weed which could spread underground through its roots or rhizomes (underground stems). It was difficult to eradicate and could cause serious damage to property. The respondents’ claims for private nuisance on the ground of encroachment were refused because there had been no physical damage to their properties. However, the recorder held that, on the balance of probabilities, Network Rail had failed to carry out its obligation as a reasonable landowner to eliminate and prevent interference with the quiet enjoyment of the respondents’ properties, causing a continuing nuisance and damage. The presence of Japanese knotweed affected their ability to sell their properties at a proper market value due to lender caution. C sued for damages in nuisance claiming that Japanese Knotweed had either damaged their land, OR the presence of it on D’s land interfered with the enjoyment or amenity interest in C’s land by making it harder to sell.
Davies v Bridgend County Borough Council (2023, UKSC)
private nuisance
comments: In doing so, it has clarified the basis on which diminution in value may or may not be awarded in Japanese Knotweed claims. In short, diminution in value which has already occurred prior to the defendant’s breach will not form part of any award
held: The Supreme Court framed the question as ‘but for the Council’s breach between 2013 and 2018 would the encroachment of Knotweed have caused the diminution in value of Mr Davies’ land’. It was established that the diminution of the value of the land occurred prior to the Council’s initial breach in 2013 due to the presence of the untreated Knotweed. Consequently, the Supreme Court reasoned that the Council’s breach between 2013 and 2018 did not materially contribute to the diminution of the land’s value. The encroachment of the Japanese Knotweed would have caused the diminution in value regardless of the Council’s breach.
Facts: Mr Davies purchased a parcel of land adjoining land the Council’s property in 2004. It was established that Knotweed had already spread from the Council’s land to Mr Davies’ land well before his purchase.
In 2012, the Royal Institution of Chartered Surveyors (RICS) published guidance on the issues caused by Knotweed, which should have alerted the Council to the risks to Mr Davies’ land. The district judge at first instance determined that an actionable nuisance arose in 2013 when the Council failed to implement a reasonable and effective treatment programme and their failure to do so interfered with Mr Davies’ enjoyment of his land Private nuisance arises where someone’s action (or in this case inaction) on their own land interferes with another’s enjoyment of their land, whether this be by encroachment or physical damage. As the Council did not begin treating the Knotweed until 2018 it was determined that there was a continuing breach of duty between 2013 and 2018.
In 2023, the Court of Appeal ruled that, although the Knotweed had encroached on Mr Davies’ land before the Council could reasonably be expected to know of the risks, the Council’s subsequent continuing breach made them liable for £4,900 in damages for the residual diminution in property value.
Khorasandjian v Bush (1993, CA)
private nuisance - limited to proprietary interest
note that was decided before the PHA + overruled in Hunter v Canary Wharf
Held: D liable in nuisance, injunction granted.
Facts: D bombarded C with aggressive and pestering (landline!) telephone calls. She was a mere licensee of the house she lived in (the property right was held by her parents ).
Barr v Biffa Waste Services (2012, CA)
private nuisance - substantial interference judged objectively
The Court of Appeal held for the claimant. The defendant’s use was not reasonable. The waste management permit was not relevant on these facts because it did not change the nature of the locality.
=> after Fearn can understand it as it objectively goes beyond what a normal person would consider reasonable to put up with
Facts: The claimant lived near the defendant’s waste-tipping site. This site was lawfully operated for many years. The defendant obtained a new waste management permit allowing them to use the site tip a new kind of pre-treated waste. The claimant complained that there had been a strong odour coming from the site since the defendant started tipping this new waste waste.
The claimant sued the defendant in nuisance. This was dismissed at first instance, because the judge thought the existence of the permit made the defendant’s use of the land reasonable. The claimant appealed
Robinson v Kilvert (1889, CA)
private nuisance - ordinary use
‘A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade’ per Lopes LJ
Held:
The defendant was not liable. The damage was due to the special sensitivity of the paper.
=> No action as D’s activity would not have damaged normal paper
The defendant carried on a business of making paper boxes. This required a warm dry atmosphere. The defendant operated from the basement of their premises and let out the ground floor to the claimant. The claimant used the premises for storage of brown paper. The heat generated from the defendant’s operations damaged the brown paper belonging to the claimant.
Bamford v Turnley
ordinary use
Liable in PN.
This Case is Authority For…
Bramwell B held that a person would not be liable in nuisance if their acts were ‘necessary for the common and ordinary use and occupation of land…if conveniently done’.
Facts: The defendant burned bricks on his land near to the claimant’s house. This caused fumes which disturbed the claimant’s use of their land and made their servants ill. The claimant sued the defendant in nuisance.
St Helen’s Smelting Co v Tipping (1865, HL)
private nuisance - Locality and Common and Ordinary Use
The House of Lords held in favour of the claimant. The character of the neighbourhood was irrelevant in this case: it is always unreasonable to use land in a way which damages another person’s property.
BUT Taking into account the characteristic of the locality was correct when dealing with claims concerning interference with comfort and enjoyment
‘If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop.’
per Lord Westbury LC.
The claimant owned a manor surrounded by a large estate of trees and plants. Nearby was an industrial district. The defendant engaged in copper smelting in a factory within that district. Fumes from the factory caused damage to the claimant’s trees and plants. The claimant sued the defendant in private nuisance for the damage.
Sturges v Bridgman (1879, CA
PN -locality+common and ordinary use - coming to the nuisance
*‘…whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’ *per Thesiger LJ
The Court of Appeal held in favour of the claimant. The defendant’s activities were a nuisance
Held: Actionable nuisance, easement had not been acquired, despite the length of time of D’s activity, injunction granted.
Facts: The defendant was a confectioner whose premises neighboured the claimant’s home. The defendant used a noisy pestle and mortar from around 10am to around 1pm each day. This went on for more than twenty years without complaint. Then, the claimant built a consulting room for his medical practice at the end of his garden. At that point, the noise and vibration from the defendant’s activities began to interfere with the claimant’s work. The claimant sued in nuisance for an injunction. The defendant argued that the noise was not a nuisance. Alternatively, he argued that if the noise was a nuisance, he had acquired a prescriptive easement to make noise by reason of the long use.
Thomas v Merthyr Tydfil Car Auction (2013, CA)
private nuisance - locality and common and ordinary use
A judge had been entitled to conclude that noise emanating from a car-auction business amounted to a nuisance from the point of view of a couple who lived next to the business. Noise and fumes were particularly bad even with noisy and major busy roads nearby.
Gillingham DC v Medway Dock (1993, CA)
private nuisance - locality (planning)
‘…a planning authority can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of rendering innocent activities which prior to the change would have been an actionable nuisance’ Buckley J
Held: The High Court held in favour of the defendant. The grant of planning permission had changed the character of the neighbourhood to a more commercial, port-based one. In light of this the defendant’s use was not unreasonable.
Facts: The defendant was a docking company who acquired a long lease of a disused dockyard. They applied for and received planning permission from the claimant (the local authority) to develop the land into a port. The claimant knew that the work would likely disturb nearby residents. This was because, to remain commercially viable, the project required heavy goods vehicles to be travelling to and from the site at all hours of the day and night. However, it initially thought that the economic benefits of the port justified the grant of planning permission.
When residents began to complain of disturbance from the noise of the vehicles, the claimant brought an action for public nuisance. The claimant argued sought an injunction limiting the defendant to only using heavy goods vehicles between 7am and 7pm.
Coventry (t/a RDC Promotions) v Lawrence (No 1) (2014, UKSC)
locality - planning permission - private nuisance - remedies
Reasoning:
Second, the Supreme Court confirmed that the claimant ‘coming to the nuisance’ was not a defence. This is consistent ‘with the fact that nuisance is a property-based tort, so that the right to allege a nuisance should, as it were, run with the land’ (at [51]). However, Lord Neuberger opined that if the claimant altered the use of their land after the defendant started the alleged nuisance then they may not have the same right to claim ‘if the activity would not have been a nuisance had the alteration not occurred’ (at [53]).
Third, in assessing the character of the locality, Lord Neuberger said that the starting position is that the defendant’s activities will be taken into account. However, those activities should be left out of account to the extent that they are a nuisance to the claimant. They should be ‘notionally stripped out of the locality when assessing its character’ (at [65]). If the activities do not constitute a nuisance then they are lawful and there is ‘no reason to disregard them when assessing the character of the neighbourhood’ (at [66]). If they do constitute a nuisance then it would be unfair to take them into account as it would allow the defendants to ‘invoke[e] their own wrong against the appellants in order to justify their continuing to commit that very wrong against the appellants’ (at [66]).
Fourth, planning permission can ‘give rise to a change in the character of the locality’ but it is ‘no different from any other building work or change of use which does not require planning permission’ (at [82]). It is normally of ‘no assistance to the defendant’ (at [94]) but may be useful evidence of unreasonable behaviour in some circumstances (at [96]).
Finally, the normal remedy in nuisance is an injunction. According to the principle inShelfer v City of London Electric Lighting Co.[1895] 1 Ch 287 damages could be awarded in lieu of an injunction: (1) if the interference is small; (2) is capable of being estimated in money; (3) can be adequately compensated by a small money payment; and (4) it would be oppressive to the defendant to grant an injunction.
While ‘the prima facie position is that an injunction should be granted’ (at [121]), Lord Neuberger emphasized that judges should be much more flexible in granting damages in lieu of an injunction (at [119]) and that the court’s discretion should not be fettered (at [120]). Planning permission, while not relevant in determining whether a nuisance has been committed, was relevant at this stage. It may be evidence that the activity is of benefit to the public and so could indicate that damages would be more appropriate (at [125]).
In this case, the level of noise was a nuisance and an injunction was granted but the defendants could apply to have the injunction discharged and damages awarded instead.
Held: D liable in nuisance. Majority rejected the relevance of planning permission for assessing whether an interference was unreasonable. But planning could be useful to understand what a locality is like.
Facts: Landowner living near a motocross stadium filed a nuisance action against the stadium owners complaining of excessive noise and dust. The stadium was constructed in 1975 under a planning permission granted for racing and associated facilities.” In 2006, the landowner became concerned about noise emanating from the stadium and filed a complaint with the local council. The council issued noise abatement notices and, eventually, the High Court issued an injunction barring activities that produced noise above specific levels. The Court of Appeals overturned this decision. During the proceedings, the landowner’s house caught fire and was destroyed.
Issues: The Supreme Court considered and clarified several key questions related to nuisance law, including:
- the extent to which a defendant can argue that he has established a prescriptive right to commit a noise nuisance;
- the extent to which a defendant to a nuisance claim can rely on the fact that the claimant “came to the nuisance;”
- the extent to which it is open to a defendant to a nuisance claim to invoke the actual use of his premises when assessing the character of the locality;
- the extent to which the grant of planning permission can be taken into account when considering the character of the locality; and
- the approach to be adopted by a court when deciding whether to grant an injunction or whether to award damages instead. Para. 6
Wheeler v JJ Saunders
private nuisance - locality - common adn ordinary use
Held:
The appeal was dismissed. The granting of planning permission differs from statutory authority and confers no immunity from an action in nuisance. The decision in Gillingham Borough Council v Medway Dock merely states that the granting of planning permission may change the neighbourhood which may make it more difficult to establish a nuisance. It does not authorise a nuisance.
The claimant, Dr Wheeler, owned a farm which had a farmhouse and some holiday cottages. He lived in the farmhouse and let out the holiday cottages. He leased the farm to the defendant, JJ Saunders ltd. JJ Saunders obtained planning permission to build a Trowbridge house on the farm for the purpose of keeping pigs for breeding. Two years later he obtained permission to build another Trowbridge house. The second house was built just 11 meters from the farmhouse and holiday cottage. Dr Wheeler brought an action in nuisance in relation to the noise and smells emanating from the pig houses. The trial judge found for the claimant and ordered damages and an injunction. The defendant appealed contending that since they obtained planning permission for the Trowbridge houses, any smells or noise in relation to the pigs can not amount to a nuisance.
Bradford Corporation v Pickles [1895] AC 587,
private nuisance - locality - common and ordinary use
Held: The court held he was not allowed to do this because the defendant had acted with malice. However, note, most commentators do not agree with the outcome of this case
Facts: Pickles offered to sell land to the local council, but they refused. So Pickles dug a well into his land and drained all the water as it came through his land, so none of the water ended up in the local council’s hands.
Christie v Davey:
private nuisance - locality - common and ordinary use
North J at 327: ‘I am persuaded that what was done by the Defendant was done only for the purpose of annoyance, and in my opinion it was not a legitimate use of the Defendant’s house to use it for the purpose of vexing and annoying his neighbours. I am not satisfied with the Defendant’s attempts to explain away the Plaintiffs’ statements. This being so, I am bound to give the Plaintiffs the relief which they ask.’
Held: The court founded in favour of the women i.e. the man was guilty of nuisance. The man had made noise “deliberately and maliciously for the purpose of annoying the [claimants]
Facts: In this case, there were 2 adjoining houses. In one house, two women gave music lessons to pupils as part of their job. This led to the guy next door writing to them nasty letters complaining about the noise. He then got annoyed and and started to bang on the wall whenever the women were doing their lessons. The teachers therefore sued the man for nuisance.
”
Miller v Jackson (1977, CA)
private nuisance - social utility
Held: Actionable nuisance and successful claim in negligence as well. But, clear split on the idea of social utility’s relevance. A majority thought it was irrelevant to the question of liability in nuisance. Denning MR differed:
‘Is the use by the cricket club of this ground for playing cricket a reasonable use of it? To my mind it is a most reasonable use. Just consider the circumstances. For over 70 years the game of cricket has been played on this ground to the great benefit of the community as a whole, and to the injury of none.’ Per Denning MR (dissenting)
= the mere fact that what you are doing is socially useful does not convert something that would be a nuisance into not a nuisance (public interest is not relevant to liability) => but is relevant to the remedies.
Facts: C sued in negligence and nuisance to injunct the playing of cricket on a ground bordering their garden. Balls had been hit into the garden and had struck the house, making C afraid to spend time in the back of the house.
Kennaway v Thompson (1981)
private nuisance - social utility - remedies
Decision
The Court of Appeal held in favour of claimant. The trial judge was not entitled to deny an injunction based on the public interest.
Facts
The claimant owned land next to an artificial lake. The defendant used this lake to organise boat racing and water skiing. Shortly after the claimant built a house on her land, but before she went into occupation of it, the defendant’s activities increased substantially. After the claimant moved in, the defendant was organising races and practice sessions involving loud boats most weekends throughout late spring to early autumn.
The claimant sued the defendant for private nuisance in relation to the noise. At trial, she obtained damages but the trial judge refused to grant an injunction, choosing instead to grant damages in lieu. He justified this on the basis that it would be oppressive to the defendant, who was providing a public interest service. The claimant appealed.
Issue(s)
Was the trial judge correct to deny the injunction against the defendant on the basis of public interest?
Allen v Gulf Oil (1981, HL)
private nuisance - statutiry defence
Held:
The defendant was not liable as it had a defence of statutory authority.
The claimant brought an action in nuisance for the smell, noise and vibration created by an oil refinery which had been constructed by the defendant on their land. The defendant’s action in constructing the oil refinery was authorised by an Act of Parliament.
Peires v Bickerton’s Aerodromes (2017, CA)
private nuisance - statutory defence
Held: Helicopters taking off and turning around was still ‘flight’ for the purposes of the statute.
Facts: Civil Aviation Act 1982 s 76(1) provides a statutory immunity for the operation of planes. C complains about D’s nearby helicopter training school.
Southport Corpn v Esso (1953, HC)
private nuisance - defence - necessity?
Held:
Appeal allowed (Morris LJ dissenting) the defendant was liable in negligence and public nuisance.
The defendant’s oil tanker ran aground in an estuary partly due to weather conditions and partly due to carrying a heavy load and a fault in the steering. The master discharged 400 tons of oil in order to free the tanker. The oil drifted onto the claimant’s land including a marine lake which it had to close until it had been cleaned at a substantial cost to the claimant. The claimant brought an action in negligence and nuisance. The trial judge found for the defendant and the claimant appealed.
Cambridge Water Co v Eastern Counties Leather (1993, HL)
private nuisance - Rylands v Fletcher
Held: No recovery, there had been no negligence and whilst fault wasn’t required for nuisance, that did not mean D could be liable for causing an unforeseeable type of harm. Applying Wagon Mound No 2, foreseeability of harm was required for both nuisance and Rylands.
Cambridge Water Co v Eastern Counties Leather (1993, HL)
Facts: C sues in negligence, nuisance and Rylands for damage done to their well. D’s chemical seeped into the ground and travelled 1.5 miles to the well.
Sedleigh Denfield v O’Callaghan (1940, HL)
private nuisance - liability of occupiers
Held:
The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance. On the facts, D was aware, or ought to have been aware through their employees of the nuisance. In failing to take reasonable steps to bring it to an end when there was time to do so, he was liable for ‘continuing’ it.
A trespassert (The council) undertook some work on the defendant’s land at the request of a neighbouring landowner. They had placed a culvert in a ditch to allow the water to drain away, however, they had negligently placed a grate in the wrong place which rendered the grate useless and the culvert became prone to blockages. The defendant’s workers had cleaned the culvert periodically over a three year period to prevent blockages. However, a heavy rain storm caused a blockage and the ditch became flooded. The flood spread to neighbouring property owned by the claimant and caused substantial damage. The claimant brought an action in nuisance for the damage caused. The defendant argued that he had neither consented to nor had knowledge of the existence of the culvert.
Goldman v Hargrave (1967, PC)
private nuisance
Decision
The Privy Council held in favour of the claimants, holding the defendant liable in nuisance. Allowing the fire to burn out instead of using water raised an unreasonable and foreseeable risk that the fire might revive.
Principle:
Where a naturally occurring hazard arises on the defendant’s land, principles of negligence are relevant to nuisance. Liability depends on whether the defendant ought to have known of the hazard and whether, based on this knowledge, a reasonable person would have taken effective steps to remove it.
When determining what is reasonable, it is relevant that the hazard exists through no fault of the occupier. The occupier’s resources and individual circumstances are also relevant. The law cannot require occupiers to spend excessive amounts of money or to achieve the nearly-impossible.
NB: not a case of Rylands v Fletcher
Facts: A freak lightning strike set a tree in the centre of the defendant’s land on fire. The defendant was advised that the fire could not be put out while the tree was standing. As such, he cleared all flammable material from around the tree and sprayed the area with water. A few hours later, the tree was cut down. Afterwards, the defendant simply allowed the fire to burn out instead of using water to put it out. A few days later, the weather changed and the fire started up again. This time, the fire spread over the defendant’s land and onto the claimants’ neighbouring land. By the time the defendant noticed, it was too late. The claimants sued the defendant in private nuisance and under the rule in Rylands v Fletcher for the damage to their property. The defendant argued that he could not be liable for either: the fire was started by natural occurrences and he had not adopted or continued it.
Leakey & Ors v National Trust [1980] QB 485 Court of Appeal
.
private nuisance
Held: Applying Sedleigh-Denfield, and formally importing Goldman, liability would only arise where D had breached a duty to stop the nuisance tailored to their subjective resources.
The National Trust were liable following the Privy Council decision in Goldman v Hargrave. A defendant is liable for a naturally occurring hazard on the land if they are aware of the danger and failed to act with reasonable prudence to remove the hazard
The claimants’ land had been damaged by falls of soil and other debris from the defendant’s land known as Burrow Mump. The falls were caused entirely by nature there was no human activity involved that would have caused the fall. The defendants were aware of the risks since 1968. They had taken legal advice and were told that they would not be liable for naturally occurring slides and consequently did nothing to prevent such slides. Following the exceptionally hot dry summer of 1976 and unusually heavy rainfall in the autumn, Mrs Leaky noticed a big crack appear in the bank above her house. She informed the National Trust and offered to pay half the cost of making it safe. Her offer was rejected. A few weeks later there was a large fall. She joined forces with other neighbours to bring an action in nuisance
Cocking v Eacott (2016, CA)
private nuisance
Vos LJ [23] ‘landlords do not become liable for their tenant’s nuisance by simply failing to enforce a covenant, and conversely, if they would otherwise be liable they cannot escape liability just by including a covenant in the lease. To be liable for nuisance, a landlord must either participate directly in the commission of the nuisance by himself or his agent, or must be taken to have authorised the nuisance by letting the property. The fact that a landlord does nothing to stop a tenant from causing the nuisance cannot amount to participating in it.’
= not enough that you are the landlord, you must either participate in the nuisance or authorise it. The fact that you did nothing to stop the tenant is not sufficient.
[28] ‘In my judgment, Mrs Waring was, in the requisite sense, both in possession and control of the property throughout her daughter’s residence there, and the judge was therefore right to hold her liable for the nuisance as he did.’
Held: Confirmed a narrower rule for a landlords and a broader one for mere occupiers, who could be liable, applying Sedleigh-Denfield, for failing to stop a nuisance they were aware of. D was liable as an occupier. Vos LJ preferred Lord Wright’s view in Sedleigh-Denfield, rejecting the idea that the duty in was only limited to failure to take reasonable means to abate it.
D owned a property which she allowed to her daughter to live in rent free
C sued D for the nuisance created by the excessive barking of her daughter’s dog
There was no tenancy and thus D was a licensor but D argued that she had no control over the premises and was thus akin to a landlord
Jalla v Shell, 2023
private nuisance - continuing nuisance
At paragraph 26 of the judgment, the Judge described a continuing cause of action as follows (emphasis added):
“In principle, and in general terms, a continuing nuisance is one where, outside the claimant’s land and usually on the defendant’s land, there is repeated activity by the defendant or an ongoing state of affairs for which the defendant is responsible which causes continuing undue interference with the use and enjoyment of the claimant’s land. For a continuing nuisance, the interference may be similar on each occasion but the important point is that it is continuing day after day or on another regular basis. So, for example, smoke, noise, smells, vibrations and, as in Fearn, overlooking are continuing nuisances where those interferences are continuing on a regular basis. The cause of action therefore accrues afresh on a continuing basis.”
Held: the court rejects it –one-off event ( no continuing nuisance)
NB: if a land was flooded - would be a continuing nuisance.
Principle: The distinction between one-off events and events constituting a continuing nuisance have significant implications for the limitation period, with the former type of claims having to be brought within six years of the event and the latter type accruing a fresh cause of action for each day the nuisance is continuing (meaning that the limitation period extends). Those operating in sectors which may give rise to potential nuisance claims should take note of the requirement of “repeated activity or an ongoing state of affairs” required for a set of facts to constitute a continuing cause of action
Facts: In Jalla, the private nuisance claim arose from a major oil spill brought against a company within the Shell PLC group of companies. Despite the incident occurring in Nigeria, Jalla represents a further example of multinational companies being sued in the jurisdiction of England and Wales for oil spills. For further analysis of this trend, please see Michelmores’ article here: Liability for MNE’s in environmental law
The oil spill in Jalla was caused by an oil leak during operations at an offshore installation in an oil field which occurred off the coast of Nigeria in December 2011. The oil leak was stopped within six hours. This is an important point in categorising the incident as a one-off, rather than a continuing event. The claimants issued their claim form in December 2017. The relevance of this is that in the jurisdiction of England and Wales, pursuant to S2 Limitation Act 1980, generally a claimant has six years from the date of the cause of action to bring a claim. Therefore, the claimants had no initial issue with limitation having issued their claim within time.
However, In April 2018 (beyond six years after the spill) the claimants attempted to amend their claim form and particulars of the claim.
The claimants argued that the claim constituted a continuing cause of action and, on that basis, that their amendments were not outside of a relevant limitation period and should be allowe
Shelfer v City of London Electric Co (1895, CA)
remedies for private nuisance
Held: CA overturned refusal at first instance to award an injunction. Smith LJ noted that damages were more appropriate than an injunction when:
‘1) If the injury to the plaintiff’s legal rights is small
2) And is one which is capable of being estimated in money
3) And is one which can be adequately compensated by a small money payment
4) And the case is one in which it would be oppressive to the defendant to grant an injunction’
= When is it appropriate to award damages in lieu instead of an injunction.
Facts: D complained of ongoing nuisance caused by vibrations from C’s machine. Both the owner and lessee sued
Dennis v Ministry of Defence [2003]
private nuisance - remedies - public interest
Held: The court said they wont just grant an injunction and shut down the RAF as they are doing an important job. But the court acknowledged that the burden of having an RAF shouldn’t fall on just the claimant and should be a burden everyone should face. So, the court was willing to award a substantial amount of damages – he got £1million.
Facts: A man owned a farm next to an RAF base which made a lot of noise
Dobson v Thames Water (2009, CA)
private nuisance - calculation of damages
Held: In the right case damages could be calculated by looking at the ‘actual impact’. Equally, damages in nuisance would often satisfy any further possible Human Rights claim:
‘…the actual impact upon the occupiers of the land, although not formally the measure of common law damages for loss of amenity, will in practice be relevant to the assessment of such damages in many cases, including such as the present where a family home is in question and no physical injury to the property, loss of capital value, loss of rent or other pecuniary damage, arises.’ Per Waller LJ
Facts: Cs sued in nuisance and breach of their art 8 Convention rights for smells generated from D’s sewage treatment plant
Anslow v Norton Aluminium Ltd
private nuisance - calculation of damages
Held: In favour of claimants
(3) In assessing damages, it would be neither practicable nor reasonable to use diminution in property value figures as there was too little primary data. Instead, figures would be assessed for general damages, as was done in personal injury claims where there was a loss of amenity element, whilst not losing sight of the facts that the instant claims concerned land and that the damages would be modest. In low value claims covered by group litigation orders, claimants could not expect the same attention to detail as they would in high value claims. An annual award would be made in respect of odour. Rather than vary the award from year to year, an annual multiplicand of between £750 and £2,000 would be awarded depending on the degree to which each claimant had been affected, by reference to the expert evidence. Those figures were appropriately modest to satisfy the interests of justice
(4) No injunctive relief would be granted. Nuisance had ceased over two years previously, and there was no convincing evidence, as opposed to concern, that the nuisance would be repeated.
Facts: The claimants (C) claimed damages and an injunction in respect of a private nuisance they alleged had been created by an aluminium foundry owned by the defendant (N).
C were 132 residents of the village where the foundry was sited. They alleged that the foundry had created a nuisance through emissions of phenolic and sulphurous odours, noise, smoke and dust. A group litigation order was made and the trial focused on 16 lead claimants. There was also expert evidence before the court and evidence of action taken by the Environment Agency in respect of the foundry’s environmental impact.
Rylands v Fletcher (1866) LR 1 Exch 265
Rylands v Fletcher -
Comments:
- As Murphy notes ((2004) 24 OJLS 643), the rule arose at the height of the industrial revolution when risky enterprises posed new dangers to the environment. Nowadays, strict liability is rare (and environmental protection is largely governed by legislation) but inTransco(at [55]) Lord Hobhouse declared the rule to be ‘a coherent principle which accords with justice and with the existing legal theory at the time’.
- What is meant by ‘escape’? InRead v J Lyons & Co.[1947] AC 156, the claimant inspector was injured by an explosion at a munitions factory. As there had been no negligence by the defendants, she brought a claim under the rule inRylands v Fletcher. It failed in the House of Lords as there had been no ‘escape’, which Viscount Simon defined as ‘escape from a place where the defendant has occupation of or control over land to a place which is outside his occupation or control’ (at 168).
Held:
- Finding for C, that D’s use of the land was unreasonable and undertaken without proper caution, which resulted in harm to C.
- When a person in managing his affairs causes, however innocently, damage to another, it is obviously just that they should be the party to suffer
Principle:
A defendant is liable under the rule inRylands v Fletcher(1866) LR 1 Exch 265 if:
- He is the occupier of land + He uses that land in a non-natural way + As a result of this a dangerous thing escapes the land + The escape of that dangerous thing causes damage to another; + The kind of damage caused was reasonably foreseeable.
Facts:
- In 1860, D made a reservoir for their mill in land adjacent to C’s land. C owned and operated a mine on their land and surrounding third-party lands running around and below the reservoir. While constructing the bed for the reservoir, five old shafts were discovered and filled with soil. It was unknown to D that these shafts connected to C’s mine.
- D employed a competent engineer and contractors when planning and constructing the reservoir, but reasonable care was not taken to ensure that the reservoir could bear the water pressure when considering the shafts.
- On 11th December 1860, after the reservoir was partially filled, one of the shafts beneath gave way and burst downwards. The water flowed into C’s mine beneath and flooded the entire workings. C was forced to suspend mining operations, and after unsuccessful attempts at renewal the entire mine was abandoned.
Cambridge Water Co. v Eastern Counties Leather plc[1994] 2 AC 264
Rylands v Fletcher
Lord Goff declined to fully define the concept of ‘naturalness’ under the rule in Rylands v Fletcher. However, he noted that:
The fact that there is a foreseeable and significant danger in the event of an escape is a strong indicator that it is non-natural;
The fact that the activity is common in a particular locality or industry is not enough to make it natural.
Decision
The House of Lords held in favour of the defendant. They agreed that the defendant’s use of the land was non-natural, but the actions failed because the claimant could not establish that their losses were sufficiently non-remote.
Facts
The dendant stored chemicals on its land for use in tanning. Due to unforeseen seepage, the defendant’s chemicals contaminated the claimant’s borehole (which was over a mile away). This made the water unsafe to drink.
The claimant sued the defendant in nuisance, negligence and under the rule in Rylands v Fletcher. The trial judge dismissed the nuisance and negligence actions on the basis that the harm was not foreseeable and so the loss was too remote. The trial judge held that the remoteness requirement did not apply to Rylands v Fletcher liability, but the defendant was still not liable because their use of the land was natural. Both parties appealed.
Read v Lyons [1947] AC 156
Rylands v Fletcher
. The House of Lords dismissed the appeal. In the absence of any proof of negligence on behalf of the defendant or an escape of dangerous thing, there was no cause of action on which the claimant could succeed.
Viscount Simon at 168:
‘“Escape” for the purpose of applying the proposition in Rylands v Fletcher, means escape from a place where the defendant has occupation of or control over land to a place which is outside his occupation or control.’
The claimant was employed by the defendant in their factory which made explosives for the Ministry of Supply. During the course of her employment an explosion occurred which killed a man and injured others including the claimant. There was no evidence that negligence had caused the explosion. At trial the judge held that the case was governed by the rule in Rylands v Fletcher and liability was therefore strict. The Court of Appeal reversed this decision as the rule in Rylands v Fletcher required an escape of the hazardous matter. The claimant appealed
Transco plc v Stockport MBC [2004] 2 AC 1
rylands v fletcher
Comments:
The House of Lords interpreted whether something was a ‘non-natural use’ of land and ‘likely to cause mischief’ restrictively and held that the rule was part of the law of nuisance. As such, it is solely concerned with damage to property (at [46] per Lord Hoffmann) and the division of risk as between the owner of the land in question and other landowners (at [52] per Lord Hobhouse). This means that damages for personal injury cannot be recovered. Murphy has questioned this interpretation of the rule: ‘while historically both private nuisance and the rule inRylands v Fletchercentred on privately owned land, there was a hugely different emphasis within the two torts as to whose land was important’ ((2004) 24 OJLS 643). Nuisance traditionally required theclaimantto have an interest in land, whereasRylandswas concerned with escapes from thedefendant’sland. By permitting strict liability only where the claimant has an interest in land and preventing liability for personal injury, the House of Lords provides greater protection to property than persons. Unless this position is reversed than it may be hard to escape Nolan’s conclusion that ‘the new orthodoxy has left the rule inRylands v Fletchera shadow of its former self, lacking either rationale or practical significance, and hedged about with arcane and indefensible restrictions’. ((2005) 121 LQR 421).
Held:
- The House of Lords rejected the claimants’ appeal. The rule inRylandswas declared to be a sub-species of nuisance, ‘novel only to the extent that it sanctioned recovery where the interference by one occupier of land with the right or enjoyment of another was isolated and not persistent’. (at [3] per Lord Bingham). This requires an escape from the defendant’s land and rules out claims for death or personal injury (at [9] per Lord Bingham).
- The test of whether something is likely to cause mischief was restrictive. It involves the defendant doing something ‘which he recognised, or judged by the standards appropriate at the relevant place and time, he ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be’ (at [10] per Lord Bingham).
- Furthermore, the test of the ‘ordinary user’ was preferable to that of ‘natural user’ as it makes it clear that the rule is only engaged when the defendant’s use ‘is shown to be extraordinary and unusual’ (at [11] per Lord Bingham). This was different to a test for reasonable use, as a use of land could be reasonable without being ordinary (as was the case inRylandsandCambridge Water Co. v Eastern Counties Leather plc[1994] 2 AC 264)
Facts: The defendants owned a tower block and a nearby disused railway line. The claimants had an easement for its gas main, which ran along the railway line. A water pipe supplying the tower block fractured and large quantities of water escaped. This damaged the embankment of the railway line, leaving the claimants’ gas main exposed. As the escape of the water was not a result of negligence on the defendants’ part, the claimants brought an action under the rule in Rylands v Fletcher for the cost of repairing the gas main. The judge found for the claimants but this was reversed by the Court of Appeal.
Gore v Stannard
Rylands v Fletcher
Held: The Court of Appeal held in favour of the defendant. Storing tyres on land is not a dangerous activity, was not non-natural in the circumstances, and there was no relevant escape. Therefore, the rule in Rylands v Fletcher did not apply to these facts.
Principle:
The rule in Rylands v Fletcher only applies where the dangerous object or substance brought onto the land is the very thing that escapes. The rule is not triggered when a combustible substance catches fire and the fire is the thing which escapes, not the substance. Only where the occupier deliberately started the fire on his land would there be a relevant escape if it got out of hand.
An activity is dangerous if there is a foreseeable and exceptionally high risk of damage if an escape were to occur. There is no need for the escape itself to be foreseeable, just the damage.
Use of land is non-natural if it is extraordinary or unusual, taking into account the standards of the time and place and the type of land in question.
Facts:
An electrical fault on the defendant’s land caused a fire to break out. The defendant had been storing a large number of tyres on the land. The fire spread to these tyres. This fed the fire, which spread onto the claimant’s land and caused damage. The claimant sued in negligence and under the rule in Rylands v Fletcher. The trial judge rejected the negligence claim but held the defendant liable under the Rylands v Fletcher rule. The defendant appealed this ruling.
Corporation of Greenock v Caledonian Railway Company [1917] AC 556
Defences to Rylands v Fletcher
Held: that the extraordinary rainfall did not absolve the corp. from responsibility and that they were liable in damages
The corp. constructed a concrete paddling pool for children in the bed of a stream and obstructed the natural flow of the stream. Owing to a rainfall of extraordinary violence the stream overflowed at the pond and damaged the property of the plaintiffs.
Perry v Kendricks Transport
Defences to Rylands v Fletcher
Decision
The Court of Appeal held in favour of the defendant. The defendant could only be liable in these circumstances if they ought to have foreseen the escape and guarded against it. The claimant had failed to demonstrate this.
Singleton LJ stated that where the escape of a dangerous substance is deliberately caused by an unconnected third-party, a defendant is only liable under the rule in Rylands v Fletcher if:
They ought to have anticipated third parties being on the land; and they ought to have anticipated those third parties causing an escape and guarded against it.
facts: The defendant owned a parking ground, on which sat a disused coach. The petrol had been drained out of the coach and a cap screwed onto the petrol pipe. The claimant was a ten-year-old boy who was approaching the edge of the parking ground. He saw two other boys interfering with the coach. The boys ran away just before there was an explosion which severely injured the claimant. It later transpired that someone had removed the petrol cap, and one of the boys had thrown a lit match into the tank, igniting the remaining petrol fumes.
The claimant sued the defendant under the rule in Rylands v Fletcher. The defendant argued that he should not be liable, because an unconnected third-party (the boys) were responsible for the explosion.
Rickards v Lothian [1913] AC 263
defenses to Rylands v Fletcher
Held: The defendants were not liable. The act which caused the damage was a wrongful act by a third party and there was no non-natural use of land.
Facts: The claimant ran a business from the second floor of a building. The defendant owned the building and leased different parts to other business tenants. An unknown person had blocked all the sinks in the lavatory on the fourth floor and turned on all the taps in order to cause a flood. This damaged the claimant’s stock and the claimant brought an action based on the principle set out in Rylands v Fletcher.
Nichols v Marsland
defence to rylands v fletcher
Held: The Court of Appeal held in favour of the defendant. The defendant was not liable for the damage caused by the flooding because it was not reasonably foreseeable.
Facts: There was an ornamental pool on the defendant’s land. The pool contained various safeguards to prevent flooding, allowing excess water to drain away naturally. However, a freak rainfall overwhelmed these safeguards. This caused the water in the pool to flood out onto the claimant’s land, damaging it. The claimant sued the defendant in negligence.
