The law of nuisance and Rylands v Fletcher

Question 1

Private nuisance

Answer 1

The tort of private nuisance deals with indirect interference affecting the use and enjoyment of land or some right over or in connection with it (s. Read v J Lyons & Co Ltd (1947)). The test for private nuisance has four stages:

• Interference
• “Reasonable user” test
• Claimant must have rights in the land
• Defendant must be the creator of or in some other way responsible for the nuisance

Question 2

Interference with land

Private nuisance

Answer 2

• Physical injury to land (e.g. property damage flooding, emission of noxious fumes, s. St Helen’s Smelting v Tipping (1865))
• Substantial interference with the enjoyment of land (“loss of amenity”)
  
  • Excessive noise (s. Sturges v Bridgeman (1879), Tetley v Chitty (1986), Baxter v Camden LBC (No. 2) [2001])
  • Emissions of smells or dust (s. Adams v Ursell [1913])
• Encroachment on a neighbour’s land (e.g. spreading roots or overhanging branches, s. Davey v Harrow Corporation [1958])

Question 3

“Reasonable user” test

Private nuisance

Answer 3

In order to balance the interests of the occupier with those of the neighbour, the test of the “reasonable user” (s. Sedleigh-Denfield v O’Callaghan [1940]) is used. This test is based on the result of the defendant’s conduct and there are multiple factors to be taken into account:

• The nature of the locality (s. Sturges v Bridgeman (1879), Baxter v Camden LBC (No. 2) [2001])
• Content of a planning permission (s. Coventry v Lawrence (No. 1) [2014])
• Nature of the nuisance itself (e.g. physical damage, s. St Helen’s Smelting v Tipping (1865))
• Duration and frequency (s. De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914), Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996]) or one-off-events
• Abnormal sensitivity (s. McKinnon Industries v Walker (1951), Robinson v Kilvert (1889), Baxter v Camden LBC (No. 2) [2001])
• Malice of the defendant (s. Christie v Davey (1893))

Question 4

Public nuisance

Answer 4

Public nuisance is both a crime and a tort which arises from a disturbance affecting both the public in general and the claimant in particular:

• It must have affected a class of people (s. Attorney General v PYA Quarries Ltd (1957))
• The claimant must have no right in the affected land and thus no remedy available to him by way of a claim for private nuisance (Halsey v Esso Petroleum (1961))
• The claimant must have suffered “special damage” which goes beyond that suffered by the rest of the public (s. Tate & Lyle Industries v Greater London Council (1983))

Question 5

The rule in Rylands v Fletcher

Answer 5

The case of Rylands v Fletcher (1865) established a strict liability tort protecting interests in land against escapes.

The defendant is subject to strict liability under the following conditions:

• Non-natural use of land: extraordinary, unusual use which creates a special hazard (s. Transco v Stockport MBC (2003), Rickards v Lothian (1913))
• The defendant brought onto his land something likely to do mischief if it escapes and which does escape (s. Read v J Lyons & Co Ltd (1947))
• And causes damage of a foreseeable type to the land of the claimant (s. Cambridge Water v Easter Counties Leather (1994), Transco v Stockport MBC (2003))

Question 6

Defences to liability under the rule in Rylands v Fletcher

Answer 6

The defences available to liability under the rule in Rylands v Fletcher (1865) are the following:

• The unforeseeable act of a stranger (s. Box v Jubb (1879), Rickards v Lothian (1913))
• Act of God (s. Nichols v Marsland (1876), has largely lost its relevance due to developments in the law)
• Statutory authority (s. Charing Cross Electricity Supply v Hydraulic Power (1914))
• Fault of the claimant (s. Ponting v Noakes [1894])
• Consent