Workshop 8 - Land-based torts
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22 Terms
What is private nuisance, and how does it differ from other land-based torts?
Private nuisance is the most significant land-based tort and occurs where a person's continuous activity or state of affairs causes a substantial and unreasonable interference with another person's land or their use or enjoyment of that land.
Key definition: Any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant's land or their use or enjoyment of that land.
The main land-based torts are:
Private nuisance
Public nuisance
The rule in Rylands v Fletcher
Although private nuisance and Rylands v Fletcher share some common principles, public nuisance and trespass to land operate differently and protect different interests.
Exam questions often require comparing and contrasting these land-based torts.
Who can sue in private nuisance?
To bring a claim in private nuisance, the claimant must have a legal interest in the land, meaning a proprietary or possessory interest, such as:
Freehold owner
Leaseholder (tenant in possession)
Grantee of an easement
Licensee with exclusive possession
❌ Mere permission to use or occupy the land is not enough, as private nuisance protects interests in land.
Key case – Hunter v Canary Wharf Ltd [1997] AC 655:
Around 700 claimants alleged that a tower at Canary Wharf interfered with their TV reception.
Claims by family members living with the homeowner failed because they had no legal interest in the land.
The House of Lords confirmed that only those with a legal interest in the affected land can sue in private nuisance.
Even claimants with a legal interest ultimately failed because nothing had emanated from the defendant's land.
Who can be sued in private nuisance?
A claim in private nuisance may be brought against:
1. The Creator of the Nuisance
The person who created the nuisance can be sued, even if they:
no longer occupy the land, or
are unable to stop the nuisance.
2. The Occupier of the Land (the usual defendant)
An occupier is liable for nuisances they create and, in some circumstances, for nuisances created by others:
Independent contractors
An occupier is liable where the nuisance is an inevitable consequence of the contractor's work.
Case: Matania v National Provincial Bank [1936]
Contractors caused excessive noise and dust during alterations.
The occupier was liable because the interference was foreseeable and inevitable.
Trespassers, visitors, or predecessors in title
The occupier is liable if they continue or adopt the nuisance.
Continue = knew or ought to have known of the nuisance and failed to take reasonable steps to stop it.
Adopt = made use of the thing causing the nuisance.
Case: Sedleigh-Denfield v O'Callaghan [1940]
Defendant used a faulty drainage pipe installed by a trespasser/local authority and was liable when it caused flooding.
Naturally occurring nuisances
An occupier may be liable if they knew or ought to have known of the danger and failed to take reasonable steps to abate it.
Case: Goldman v Hargrave [1967]
Lightning struck a tree, leaving burning embers that later reignited and spread.
Defendant was liable because he could reasonably have extinguished the embers.
⚠ The duty is limited by the occupier's financial and physical resources—they are not expected to bankrupt themselves to remove the nuisance.
3. The Owner/Landlord
A landlord is not usually liable for a tenant's nuisance.
Exception – Coventry v Lawrence [2014] UKSC 46:
A landlord is liable only if they:
authorised the nuisance,
actively and directly participated in it, or
leased the property where there was a very high probability (virtual certainty) that the nuisance would result.
Mere knowledge of how the tenant intended to use the property is not enough. Participation is determined on the facts, mainly by events after the lease was granted.
What are the elements of private nuisance?
Private nuisance aims to balance two competing rights:
The defendant's right to use their land as they wish.
The claimant's right to use and enjoy their land without unreasonable interference.
This is known as the "rule of give and take, live and let live."
Key case: Bamford v Turnley (1862) 3 B & S 66.
Before proving private nuisance
The claimant must first establish:
Who can sue? (must have a legal interest in the land)
Who can be sued? (creator, occupier, or, in limited cases, the owner/landlord)
Four elements of private nuisance
The claimant must prove:
Indirect interference with the claimant's land.
Recognised damage (to the land or its use/enjoyment).
A continuous act or state of affairs (not usually a one-off event).
The interference was unlawful (i.e. substantial and unreasonable).
What are the four elements the claimant must prove to succeed in a claim for private nuisance?
The claimant must prove:
1. Indirect Interference
Private nuisance concerns indirect interference with the claimant’s use or enjoyment of land.
This differs from trespass to land, which involves direct interference.
Examples of indirect interference:
Noise
Smells
Fumes
Vibrations
The nuisance usually begins on the defendant’s land but causes harm to the claimant’s land.
A failure to act can also amount to indirect interference.
Example:
A compost heap on the defendant’s land creates bad smells affecting neighbours → indirect interference (possible nuisance).
Moving the compost heap onto the neighbour’s land → direct interference (trespass).
2. Recognised Damage (Loss)
The claimant must show they have suffered legally recognised damage.
Types of recoverable damage (St Helen’s Smelting Co v Tipping (1865)):
(a) Physical damage to property
Damage to the physical condition of land/property.
Example: overhanging branches damaging a building.
(b) Sensible Personal Discomfort (SPD)
Interference with the claimant’s ability to enjoy their land.
Also known as amenity damage (damage to the enjoyment value of property).
Examples:
Unpleasant smells
Excessive noise
Key principles:
Damage must be reasonably foreseeable (Cambridge Water Co v Eastern Counties Leather [1994]).
Consequential losses (e.g. loss of profits) can be recovered if they flow from recoverable damage.
❌ Personal injury cannot be claimed because private nuisance protects land, not the person (Hunter v Canary Wharf).
Physical damage must be more than trivial (de minimis) (Mitchell v Darley Main Colliery [1886]).
SPD must materially interfere with ordinary human comfort and not be fanciful (Walter v Selfe [1851]).
3. Continuous Act
The nuisance must generally be continuous.
A one-off isolated event will usually not amount to private nuisance.
Alternative claims may be available in:
Negligence
Public nuisance
Rylands v Fletcher
Exceptions:
(1) Single incident caused by an underlying state of affairs
Case: British Celanese v AH Hunt Ltd [1969]
Metal foil strips escaped from the defendant’s factory and caused a power failure.
Although it was a single incident, the defendant’s ongoing practice of storing the strips outside created a continuing nuisance.
(2) Activity creating a risk of escape of dangerous/damaging material
Case: Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996]
A firework display caused a fire and extensive damage.
The court suggested private nuisance may apply where an activity creates a risk of escape of dangerous substances (e.g. water, gas, fire), even if the activity is short-lived.
4. Unlawful Interference
The interference must be unreasonable.
"Unlawful" in private nuisance means unreasonable use of land, not necessarily fault.
The court considers whether the defendant’s use of land is reasonable.
Key principles:
If the use of land is reasonable → no liability.
If unreasonable → liability may arise even where the defendant took reasonable care.
Key cases:
Cambridge Water Co v Eastern Counties Leather [1994]
Liability depends on whether the defendant’s use of land was unreasonable.
Sedleigh-Denfield v O’Callaghan [1940]
Reasonableness depends on “the ordinary usages of mankind living in society, or more correctly in a particular society.”
Overall aim of private nuisance:
To balance:
The defendant’s right to use their land; and
The claimant’s right to enjoy their land without unreasonable interference.
Principle: “Give and take, live and let live.” (Bamford v Turnley (1862))
What factors do the courts consider when deciding whether an interference in private nuisance is unlawful/unreasonable?
The courts balance two competing interests:
The defendant’s right to use their land, and
The claimant’s right to enjoy their land without unreasonable interference.
No single factor is decisive; the court considers all relevant factors together.
1. Time and Duration
The longer and more frequent the interference, the more likely it is to be unreasonable.
The court considers:
When the nuisance occurs;
How long it continues;
How frequently it happens.
Case: Kennaway v Thompson [1981] QB 88
Noise from a motorboat racing and water-skiing club affected a residential neighbour.
The timing, duration and frequency of the noise were important factors.
⚠ Where there is property damage, even a temporary activity may still amount to a nuisance.
2. Locality / Character of the Neighbourhood
Relevant only where the claimant suffers sensible personal discomfort (SPD).
The court considers whether the defendant’s use of land is reasonable depending on the character of the area.
Case: Sturges v Bridgman (1879)
A doctor complained about noise and vibrations from a nearby confectionery business.
The court held the activity was a nuisance because it occurred in a residential area.
Principle:
“What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.”
Case: Adams v Ursell [1913]
Fumes from a fish and chip shop were a nuisance in a residential area.
A business may be acceptable in one location but a nuisance in another.
Planning Permission and Locality(a) Planning permission may change the character of an area
Case: Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993]
A residential area became a commercial port after planning permission.
Increased traffic, noise and fumes were not a nuisance because the character of the area had changed.
(b) Planning permission does not automatically authorise a nuisance
Case: Wheeler v JJ Saunders Ltd [1996]
A pig farm received planning permission to build new sheds.
Smells affected nearby holiday cottages.
The defendant was still liable because planning permission did not change the character of the area or authorise nuisance.
(c) The terms of planning permission may be relevant
Case: Coventry v Lawrence [2014]
A speedway stadium had planning permission but caused noise in a rural area.
Planning permission did not remove private rights or automatically defeat a nuisance claim.
However, the precise conditions of planning permission may help determine whether the use of land is reasonable.
3. Abnormal Sensitivity
A claimant cannot claim if the interference only affects them because they are unusually sensitive.
The defendant is judged by the effect on an ordinary occupier.
Case: Robinson v Kilvert (1889)
Heat from the defendant’s business damaged the claimant’s heat-sensitive paper.
Ordinary paper would not have been affected.
No nuisance because the claimant’s use was abnormally sensitive.
Exception – Thin skull principle
If an ordinary person would be affected, the claimant can recover the full extent of their loss, even if they are unusually sensitive.
Case: McKinnon Industries v Walker [1951]
Factory fumes damaged flowers, including sensitive orchids.
Ordinary plants were affected, so the claimant recovered for damage to the orchids.
Case: Network Rail Infrastructure Ltd v CJ Morris [2004]
Electric guitars in a recording studio were affected by railway signalling equipment.
Court questioned whether abnormal sensitivity still existed and focused on foreseeability instead.
Defendant was not liable because the interference was not reasonably foreseeable.
4. Malice
If the defendant acts deliberately to annoy the claimant, this is likely to make the interference unreasonable.
A legitimate reason for using land makes liability less likely.
Case: Christie v Davey [1893]
Defendant deliberately made noise to annoy a music teacher neighbour.
The behaviour was malicious and unreasonable.
Injunction granted preventing the defendant from creating noise for the purpose of annoyance.
5. Lack of Care
Failure to take reasonable precautions can support a finding of nuisance.
Case: Andreae v Selfridge & Co Ltd [1938]
Building works caused noise and dust affecting a hotel.
Building work itself was not unreasonable, but the defendant failed to take reasonable steps to minimise disruption.
Liability arose because the defendant prioritised its own convenience over neighbours’ interests.
6. Excessive Behaviour
The court considers how far the defendant’s conduct goes beyond normal behaviour.
Excessive behaviour may indicate unreasonable use of land.
Case: Farrer v Nelson (1885)
Defendant owned hundreds of pheasants which damaged the claimant’s crops.
The excessive number of pheasants contributed to finding unreasonable interference.
Summary: Factors for Unlawfulness/Unreasonableness
The court considers:
Time and duration – longer/more frequent interference is more likely unreasonable.
Locality – depends on the character of the area (SPD only).
Planning permission – may affect locality but does not authorise nuisance.
Abnormal sensitivity – claimant must show ordinary interference.
Malice – deliberate annoyance increases liability.
Lack of care – failure to minimise harm supports liability.
Excessive behaviour – extreme conduct is more likely unreasonable.
What defences are available to a defendant in a claim for private nuisance?
After establishing the preliminaries and elements of private nuisance, the defendant may attempt to rely on one of the following defences:
20 years’ prescription
The defendant may argue that the claimant has tolerated the nuisance for at least 20 years, giving the defendant a right to continue it.
Statutory authority
The defendant may argue that the nuisance is authorised by statute.
If Parliament has authorised an activity, liability may be excluded where the nuisance is an inevitable consequence of carrying out that statutory duty.
Consent
The defendant may argue that the claimant consented to the interference.
A person who has agreed to the activity causing the nuisance may be unable to claim.
Contributory negligence
The defendant may argue that the claimant contributed to their own damage.
This may reduce the damages awarded.
Act of a third party
The defendant may argue that the nuisance was caused by someone else and they should not be responsible.
However, occupiers may still be liable if they adopted or continued the nuisance.
Act of God
The defendant may argue that the nuisance resulted from an extraordinary natural event that could not reasonably have been anticipated or prevented.
After considering defences, the next issue is remedies:
If the claimant succeeds in proving private nuisance, the court will consider what remedy should be awarded.
What defences are available in private nuisance, and what are the key rules and cases for each?
1. 20 Years’ Prescription
A defendant can gain a right to continue a nuisance if:
The activity has been an actionable nuisance for 20 years or more, and
The claimant has not brought a claim during that time.
It is the length of time the activity has been a nuisance that matters, not simply how long the activity has existed.
The 20 years does not need to be continuous.
Case: Sturges v Bridgman (1879)
The confectioner had operated for over 20 years.
However, it only became a nuisance when the claimant built consulting rooms nearby.
Defence failed because the nuisance itself had not existed for 20 years.
Case: Coventry v Lawrence [2014]
Speedway stadium existed since 1975, but the nuisance had not existed for 20 years.
It was not enough that the activity had continued for 20 years; the defendant had to prove it had been a nuisance for 20 years.
Defence failed.
2. Statutory Authority
A defendant will not be liable if:
The activity is authorised by statute;
The defendant exercised all due care; and
The nuisance was an inevitable consequence of carrying out the statutory duty.
Case: Allen v Gulf Oil Refining Ltd [1981]
Parliament authorised the expansion of an oil refinery.
Residents complained of noise and vibrations.
The House of Lords held the nuisance was authorised by statute and unavoidable.
Statutory authority provided a complete defence.
3. Consent
Consent is a defence where the claimant has specifically agreed to the activity causing the nuisance.
Consent can be given:
By words; or
By conduct.
The claimant must have accepted the specific risk causing the nuisance.
Case: Pwllbach Colliery v Woodman [1915]
Claimant accepted the existence of a colliery but had not consented to disruption caused by coal dust.
Defence failed because consent must relate specifically to the nuisance.
4. Contributory Negligence
The normal rules of contributory negligence apply.
If the claimant contributed to their own damage, damages may be reduced.
Case: Trevett v Lee [1955]
A claimant tripped over a hosepipe placed across a road.
The court found no nuisance, but confirmed that if nuisance had existed, contributory negligence could have been argued.
Although this was a public nuisance case, the principle applies to private nuisance.
5. Act of a Third Party
A defendant is not normally liable where the nuisance was created by someone else.
However, liability may arise if the defendant:
Adopts the nuisance; or
Continues the nuisance.
Case: Sedleigh-Denfield v O’Callaghan [1940]
Defendant became liable because they continued to use a nuisance created by a third party.
6. Act of God
A defendant is not liable where the nuisance results from an extraordinary natural event that could not reasonably be anticipated.
The defence will fail if the defendant adopts or continues the nuisance.
Case: Nichols v Marsland (1876)
Artificial pools flooded due to exceptionally heavy and unexpected rainfall.
The flooding was an unforeseeable natural event.
Defendant successfully relied on the defence.
Ineffective Defence: Moving to the Nuisance
A defendant cannot argue that the claimant moved to an existing nuisance.
The fact that the claimant knew about the activity before moving does not prevent a claim.
Case: Miller v Jackson [1977]
Cricket club had existed for over 70 years before houses were built nearby.
Cricket balls entered the claimant’s garden.
The claimant’s decision to move nearby was not a defence.
Case: Coventry v Lawrence [2014]
Confirmed that moving to a nuisance is generally not a defence.
The argument may only succeed in limited circumstances where the claimant’s change of use created the nuisance.
Summary of Private Nuisance Defences
Defence | Key Principle | Key Case |
|---|---|---|
20 years’ prescription | Nuisance must exist for 20 years | Sturges v Bridgman, Coventry v Lawrence |
Statutory authority | Activity authorised by statute and nuisance inevitable | Allen v Gulf Oil |
Consent | Claimant accepted the specific nuisance | Pwllbach Colliery v Woodman |
Contributory negligence | Claimant contributed to damage | Trevett v Lee |
Act of third party | No liability unless nuisance adopted/continued | Sedleigh-Denfield |
Act of God | Extraordinary natural event | Nichols v Marsland |
Moving to nuisance | Not a valid defence | Miller v Jackson, Coventry v Lawrence |
What remedies are available to a claimant who successfully proves private nuisance?
There are three possible remedies available in private nuisance:
Injunction
Damages
Abatement
1. Injunction
The primary remedy for a continuing nuisance.
An injunction is a court order requiring the defendant to stop or limit the nuisance.
Types of injunction:
Full injunction → completely stops the activity.
Partial injunction → regulates the activity by placing limits on when/how it can occur.
A partial injunction allows the court to balance:
The claimant’s right to enjoy their land; and
The defendant’s right to use their land.
Case: Kennaway v Thompson [1981]
Powerboat racing caused excessive noise to neighbouring residents.
The activity was popular and there were limited locations where it could take place.
Court granted a partial injunction, allowing racing only at certain times according to a timetable.
2. Damages
Damages may be awarded for:
(a) Physical damage
Claimant can recover:
Cost of repair; or
Cost of replacement (whichever is lower).
(b) Consequential economic loss
Losses flowing from the damage may also be recovered.
(c) Damages instead of an injunction
Where the nuisance causes sensible personal discomfort (SPD), the court may award damages instead of stopping the activity.
However, the starting point is usually that a claimant who proves nuisance should receive an injunction.
The defendant must show why an injunction should not be granted.
The court considers factors such as:
Public interest;
Whether the defendant’s activity benefits society;
Whether an injunction would destroy a business;
Whether planning permission supports the activity’s public benefit.
Case: Coventry v Lawrence [2014]
Planning permission may be relevant where it shows the activity provides public benefit and could not operate without causing the nuisance.
However, planning permission does not automatically authorise nuisance.
Cases where damages were awarded instead of an injunction:
Case: Dennis v Ministry of Defence [2003]
RAF training flights caused severe noise from around 70 Harrier jets per day.
The activity amounted to a nuisance.
Injunction was refused because national defence was an important public benefit.
Claimants received £950,000 damages, representing the reduction in their property value caused by the noise.
Case: Miller v Jackson [1977]
Cricket balls from a long-established cricket club entered the claimant’s garden.
Cricket club was liable in nuisance.
Damages were awarded instead of an injunction because public interest in allowing cricket outweighed the claimant’s rights.
3. Abatement
Abatement is a self-help remedy where the claimant takes reasonable steps to stop the nuisance themselves.
The claimant may:
Enter the defendant’s land in certain circumstances; and
Take reasonable steps to remove or prevent the nuisance.
Rules:
The claimant must not remove or destroy the defendant’s property.
Anything belonging to the defendant must be returned.
The claimant must do no more than necessary to stop the nuisance.
Example:
A claimant may cut down branches from a tree that overhangs their land.
The branches must be returned to the defendant.
Other requirements:
The claimant should usually give notice of their intention to abate.
Notice is not required in an emergency.
A valid exercise of abatement is a defence to a claim of trespass to land.
Summary of Private Nuisance Remedies
Remedy | Purpose | Key Points |
|---|---|---|
Injunction | Stop or regulate nuisance | Primary remedy; may be full or partial |
Damages | Compensation | For property damage, economic loss, or instead of injunction |
Abatement | Self-help remedy | Claimant takes reasonable steps to stop nuisance |
What is the structure for answering a private nuisance problem question?
Use the following structure:
1. Identify the Parties and Tort
Identify the claimant and defendant:
Claimant v Defendant
Define private nuisance:
Private nuisance is a continuous activity or state of affairs causing a substantial and unreasonable interference with the claimant’s land or their use or enjoyment of that land.
2. Preliminaries(a) Who can sue?
Claimant must have a legal interest in the land.
Includes:
Freehold owner;
Tenant in possession;
Grantee of an easement;
Licensee with exclusive possession.
Key case: Hunter v Canary Wharf [1997]
(b) Who can be sued?
Potential defendants include:
Creator of the nuisance
Occupier of the land
Including where nuisance is created by:
Independent contractors;
Trespassers/visitors/predecessors;
Naturally occurring hazards.
Owner/landlord
Only liable in limited circumstances.
Key case: Coventry v Lawrence [2014]
3. Elements of Private Nuisance(1) Indirect Interference
Must involve interference that originates from the defendant’s land and affects the claimant’s land.
Examples:
Noise;
Smells;
Fumes;
Vibrations.
(Distinguish from direct interference, which is trespass.)
(2) Recognised Loss
The claimant must prove legally recognised damage:
Physical damage to property
Damage must be more than trivial (de minimis).
Sensible Personal Discomfort (SPD)
Interference with enjoyment of land, such as:
Noise;
Odours.
Key cases:
St Helen’s Smelting Co v Tipping [1865]
Walter v Selfe [1851]
(3) Continuous Act
The nuisance must usually be continuous.
A one-off event is normally not actionable.
Consider exceptions:
Single incident caused by an underlying state of affairs
British Celanese v AH Hunt [1969]
Activity creating a risk of escape of dangerous material
Crown River Cruises v Kimbolton Fireworks [1996]
(4) Unlawful Interference
"Unlawful" means unreasonable use of land.
The court balances:
Defendant’s right to use their land; and
Claimant’s right to enjoy their land.
Consider relevant factors:
Time and duration
Longer and more frequent interference is more likely unreasonable.
Case: Kennaway v Thompson [1981]
Locality
Depends on the character of the area.
Relevant mainly to SPD.
Cases:
Sturges v Bridgman [1879]
Adams v Ursell [1913]
Abnormal sensitivity
Claimant cannot complain if only unusually sensitive property/person is affected.
Case: Robinson v Kilvert [1889]
Malice
Deliberate actions intended to annoy are more likely unreasonable.
Case: Christie v Davey [1893]
Lack of care
Failure to take reasonable precautions supports liability.
Case: Andreae v Selfridge [1938]
Excessive behaviour
Extreme or abnormal conduct may indicate unreasonable use.
Case: Farrer v Nelson [1885]
4. Defences
Consider whether the defendant can rely on:
20 years’ prescription
Nuisance must have existed for 20 years.
Sturges v Bridgman
Coventry v Lawrence
Statutory authority
Activity authorised by statute and nuisance inevitable.
Allen v Gulf Oil Refining [1981]
Consent
Claimant accepted the specific nuisance.
Pwllbach Colliery v Woodman [1915]
Contributory negligence
Act of third party
Unless nuisance adopted/continued.
Sedleigh-Denfield v O’Callaghan [1940]
Act of God
Extraordinary natural event.
Nichols v Marsland [1876]
❌ Moving to the nuisance is not a defence
Miller v Jackson [1977]
5. Remedies(1) Injunction
Primary remedy for continuing nuisance.
Can be:
Full (stops activity completely);
Partial (regulates activity).
Case: Kennaway v Thompson [1981]
(2) Damages
Available for:
Physical damage;
Consequential economic loss;
Instead of an injunction where appropriate.
Cases:
Dennis v Ministry of Defence [2003]
Miller v Jackson [1977]
(3) Abatement
Self-help remedy.
Claimant takes reasonable steps to stop the nuisance.
Must:
Give notice (unless emergency);
Do no more than necessary;
Return defendant’s property.
Exam structure shortcut:
Tort → Preliminaries → Elements → Defences → Remedies.
What is public nuisance, and what must be shown for it to arise?
Public nuisance is primarily a criminal offence, but it can also be a tort where the harm affects:
A section of the community, or
The community as a whole.
Key definition:
Public nuisance consists of acts or omissions of the defendant that materially affect the reasonable comfort and convenience of life of a class of Her Majesty’s subjects.
Key case: Attorney General v PYA Quarries [1957] 2 QB 169
Dust and vibrations from the defendant’s quarry affected over 30 households in the local area.
The court held the interference was sufficiently widespread to amount to a public nuisance.
What makes a nuisance “public”?
The effect must be sufficiently widespread.
It must affect a class of people, rather than only one individual.
Examples of public nuisance:
Pollution
Excessive noise
Obstruction of public spaces
Public health risks
Modern relevance:
Many areas of public nuisance (e.g. pollution, noise, and public health issues) are now controlled by statute and regulations.
Therefore, public nuisance is now mainly used where:
Other legal methods are unavailable; or
An individual seeks common law damages.
Who can sue in public nuisance?
Before considering the elements of public nuisance, it is necessary to identify who has standing to bring a claim.
The following can sue in public nuisance:
1. An Individual
An individual may bring a claim if they have suffered harm from the public nuisance.
They must usually show special damage (damage beyond that suffered by the general public).
2. A Local Authority
A local authority may sue:
On its own behalf if it has suffered damage; or
To protect the inhabitants of its area from the public nuisance.
3. The Attorney General
The Attorney General may bring a claim where:
A class of people is affected by the public nuisance; and
No individual action is possible or has been brought.
This is known as a relator action.
Summary:
Public nuisance claims can be brought by:
Individuals
Local authorities
The Attorney General (through a relator action)
When can an individual sue in public nuisance?
Unlike private nuisance and the rule in Rylands v Fletcher, an individual does not need to have a legal interest in the affected land to bring a claim in public nuisance.
However, individuals can only sue in limited circumstances. They must show that they have suffered special damage.
Special Damage
Special damage means the claimant has suffered harm that is:
Over and above the harm suffered by the rest of the affected class; or
Different in kind from the harm suffered by the rest of the class.
The claimant must show that:
Affected people form a class; and
The claimant’s damage is direct and substantial.
Key cases:
Ricket v Metropolitan Railway (1867)
Established the requirement for an individual claimant to show special damage in public nuisance.
Colour Quest Ltd v Total Downstream UK Plc [2010]
Confirmed that special damage must be direct and substantial.
Example case: Lyons Sons & Co v Gulliver [1914]
Defendant caused a queue outside the claimant’s café twice a day, obstructing the highway.
The public suffered inconvenience, but the claimant suffered special damage because:
The café’s trade was severely disrupted.
The claimant suffered economic loss.
The claimant was able to sue in public nuisance.
Summary:
An individual can sue in public nuisance if they can prove special damage that is direct, substantial, and different from the harm suffered by the public generally.
Who can be sued in public nuisance?
An action in public nuisance is relatively rare, so there has been limited judicial discussion about who can be sued.
Generally, the defendant will be:
The creator of the nuisance
The person who directly caused the public nuisance.
Any person responsible for the nuisance
This may include:
The owner of the land; or
The occupier of the land.
Summary:
A claim in public nuisance can usually be brought against the person who created the nuisance or anyone responsible for maintaining or allowing it to continue.
What are the elements of the tort of public nuisance?
To succeed in a claim for public nuisance, the claimant must prove four elements:
Act or omission
One-off event or continuous interference
Affects a class of His Majesty’s subjects
Materially affects comfort and convenience
1. Act or Omission
Liability can arise from:
A positive act; or
A failure to act (omission).
This can make public nuisance advantageous compared with negligence, where omissions are generally not actionable.
2. One-off Event or Continuous
Unlike private nuisance, public nuisance does not need to be continuous.
A single isolated event can amount to public nuisance.
3. Class of His Majesty’s Subjects
The nuisance must affect a sufficiently widespread group of people.
There is no fixed number required to create a “class”; it depends on the circumstances.
Case: Attorney General v PYA Quarries [1957]
Dust and vibrations from a quarry affected over 30 households.
This was enough to constitute a class of people.
Not every member of the class needs to be affected; a representative cross-section is sufficient.
Case: R v Rimmington [2005]
Defendant sent racially offensive items to individuals across the country.
The victims did not form a “class” because they were not affected:
At the same time; and
In the same location.
A class requires a common injury affecting a section of the public or community.
4. Materially Affects Comfort and Convenience
The nuisance must materially interfere with the reasonable comfort and convenience of life.
The interference must be more than trivial.
Recoverable damage includes:
✅ Property damage
✅ Consequential economic loss
✅ Personal injury
✅ Pure economic loss
✅ Material inconvenience/annoyance
(This differs from private nuisance, where personal injury and pure economic loss are generally not recoverable.)
Material inconvenience
There is no fixed definition; it depends on the facts.
Actual damage is not required — annoyance or irritation may be enough if it is material.
Case: Jan de Nul (UK) Ltd v Royale Belge SA [2002]
Confirmed that inconvenience must be more than trivial.
Case: Benjamin v Storr (1873–74)
Defendant’s auction business caused repeated obstruction outside the claimant’s coffee house.
Vans blocked access and caused inconvenience.
The interference was direct and substantial, amounting to public nuisance.
Foreseeability
The type of damage suffered must be reasonably foreseeable.
Case: Wagon Mound (No 2) [1967]
Confirmed the requirement of reasonable foreseeability of damage.
Summary: Elements of Public Nuisance
Element | Key Principle | Case |
|---|---|---|
Act or omission | Liability can arise from failures to act | — |
One-off or continuous | Unlike private nuisance, one-off events can qualify | — |
Class of His Majesty’s subjects | Must affect a section of the public | PYA Quarries, Rimmington |
Material effect on comfort and convenience | Must be more than trivial | Jan de Nul, Benjamin v Storr |
Foreseeability | Damage must be reasonably foreseeable | Wagon Mound (No 2) |
What defences and remedies are available in public nuisance, and what are some key examples?
Defences in Public Nuisance
The same defences available for private nuisance generally apply to public nuisance, except prescription.
The main defence relied upon in public nuisance is:
Statutory Authority
Where the defendant’s activity is authorised by statute, they may avoid liability if:
The nuisance is an inevitable consequence of carrying out the statutory duty; and
The defendant has exercised due care.
Remedies in Public Nuisance
The available remedies are:
1. Injunction
A court order preventing or controlling the nuisance.
2. Damages
Compensation for losses suffered by the claimant.
However:
If the claim is brought by a Local Authority or the Attorney General, the only remedy available is an injunction.
Examples of Public Nuisance ClaimsCase: Wandsworth London Borough Council v Railtrack plc [2001]
Pigeons roosted under a bridge owned by the defendant.
The pigeons caused a nuisance through excessive droppings affecting the public.
The bridge was considered a public nuisance.
The defendant was required to “pigeon-proof” the bridge to prevent the nuisance.
Case: Castle v St Augustine’s Link (1922)
Golf balls from the defendant’s golf course frequently landed on a public road.
The claimant was struck by a golf ball while driving.
The affected class was highway users.
The claimant suffered special damage because they were personally injured.
The golf course was liable for public nuisance.
Summary: Public Nuisance Defences & Remedies
Area | Key Rule |
|---|---|
Defences | Same as private nuisance except no 20-year prescription |
Main defence | Statutory authority |
Remedies | Injunction and/or damages |
Local Authority/Attorney General claims | Injunction only |
Example cases | Wandsworth v Railtrack (pigeons), Castle v St Augustine’s Link (golf balls) |
What is the structure for public nuisance?
Structure for public nuisance
· Identify the parties (claimant name v defendant name) and tort (define).
· Preliminaries: Who can sue? Who can be sued?
· Elements:
(1) What is the act or omission?
(2) One-off event or continuous?
(3) Has a ‘class’ been affected?
(4) Has the loss materially affected the reasonable comfort and convenience of the claimant/s?
· Defences
· Remedies
What is the rule in Rylands v Fletcher and what does it protect against?
The rule in Rylands v Fletcher is a tort that protects against damage caused by the isolated escape of a dangerous thing from the defendant’s land.
It applies where a defendant:
Brings something onto their land;
Keeps it there for their own purposes;
The thing is likely to cause harm if it escapes; and
It escapes and causes damage.
Unlike negligence, liability can arise without proof of fault.
Key Case: Rylands v Fletcher (1868) LR 3 HL 330
Facts:
The defendant built a reservoir on their land to supply water to their mill.
Independent contractors constructed the reservoir but failed to block old mine shafts underneath.
When the reservoir filled, water escaped and flooded the claimant’s neighbouring mine.
The defendant was unaware of the mine shafts and had not been negligent.
Decision:
The defendant was liable despite having exercised reasonable care.
Principle (Blackburn J):
“The person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”
Key Points
The rule applies to isolated escapes from land.
It creates a form of strict liability (liability without proving negligence).
It is concerned with protecting against unusual dangers created by the defendant’s use of land.
What are the preliminaries to consider before applying the rule in Rylands v Fletcher?
Before considering the elements of the tort, consider:
1. Who can sue?
The rule in Rylands v Fletcher is a sub-species of private nuisance.
Therefore, the claimant must have a proprietary interest in the affected land.
Key cases:
Transco v Stockport Metropolitan BC [2003]
Confirmed that Rylands v Fletcher is closely connected to private nuisance.
Hunter v Canary Wharf [1997]
Claimant must have a legal interest in the land affected.
✅ Claimants who may sue include:
Freehold owners;
Tenants in possession;
Others with a recognised proprietary interest.
❌ Those without a legal interest in the land cannot claim.
2. Who can be sued?
A defendant may be:
(a) The creator of the danger
The person who:
Brings the thing onto the land;
Collects it; and
Keeps it there.
(b) The person controlling the land
This may include:
The owner; or
The occupier.
3. Loss
The claimant must prove they have suffered damage.
Recoverable losses under Rylands v Fletcher are limited to:
✅ Property damage
Damage to land or other property.
✅ Consequential economic loss
Financial losses flowing from the property damage.
❌ Personal injury and pure economic loss are not recoverable.
Summary
Before applying Rylands v Fletcher, ask:
Who can sue? → Must have a proprietary interest in land (Hunter, Transco).
Who can be sued? → Creator of the danger and/or owner/occupier controlling the land.
What loss occurred? → Only property damage and consequential economic loss.
What are the elements required to establish liability under the rule in Rylands v Fletcher?
To succeed in a claim under Rylands v Fletcher, the claimant must prove:
The defendant brings onto land and accumulates something
The thing is likely to cause damage if it escapes
There is an escape
The escape causes foreseeable harm
There is a non-natural use of land
1. The Defendant Brings Onto Land and Accumulates There
The defendant must have voluntarily brought the thing onto their land.
Things that occur naturally on land will not usually satisfy this requirement.
Case: Giles v Walker (1890)
Thistles spread naturally from the defendant’s land.
No liability because the defendant had not brought the thistles onto the land.
2. For Their Own Purposes, Anything Likely to Do Mischief if it Escapes
The thing brought onto the land must be capable of causing damage if it escapes.
It does not have to be dangerous itself, but it must create a danger if it escapes.
Examples:
Water
Acid
Explosives
Key case: Transco v Stockport Metropolitan BC [2003]
A leaking water pipe caused an embankment to collapse and exposed a gas pipe.
The claimant spent £94,000 preventing damage.
The House of Lords held that the “thing” must create an exceptionally high risk of danger if it escapes.
Ordinary water supply pipes did not meet this high threshold.
Principle:
Transco significantly narrowed the meaning of “anything likely to do mischief”.
3. Escape
The dangerous thing must escape from land controlled by the defendant to land outside their control.
The escape may happen gradually over time.
Case: Cambridge Water Co v Eastern Counties Leather [1994]
Chemicals slowly seeped through the defendant’s floor into groundwater.
A gradual escape was sufficient.
The thing that escapes must be the thing accumulated
Case: Stannard v Gore [2012]
Defendant stored tyres on their land.
Tyres caught fire and the fire spread to the claimant’s property.
Claim failed because it was the fire, not the tyres, that escaped.
The fire was not the thing brought onto the land.
Exception: Colour Quest Ltd v Total Downstream UK Plc [2010]
Where fuel is the dangerous thing brought onto land and causes a fire/explosion, the fuel may be considered to have escaped with the fire.
4. Escape Causes Foreseeable Harm
The defendant does not need to foresee the escape itself.
They must know or ought reasonably to know that:
The dangerous thing could escape; and
If it escaped, it could cause damage.
⚠ Liability remains strict:
Even if the defendant took reasonable care to prevent the escape, they may still be liable if all requirements are satisfied.
Case: Cambridge Water Co v Eastern Counties Leather [1994]
Chemicals used in leather manufacturing leaked through the floor and contaminated a water supply 1.3 miles away.
Claim failed because this type of damage was not reasonably foreseeable.
It was not foreseeable that chemicals spilled on the floor would contaminate distant groundwater.
5. Non-Natural Use of Land
The defendant’s use of land must be non-natural, meaning non-ordinary use.
Whether a use is non-natural depends on:
Time;
Place;
Context;
Surrounding circumstances.
Case: Transco v Stockport Metropolitan BC [2003]
The use must be:
Extraordinary; and
Unusual according to modern standards.
Supplying water to flats was an ordinary use of land.
Therefore, no liability.
Lord Hoffman suggested asking:
Would the risk created be something the occupier could reasonably be expected to insure against?
Case: Colour Quest Ltd v Total Downstream UK Plc [2010]
Storing a large quantity of oil at an industrial depot was a non-natural use.
The quantity of the dangerous substance was relevant.
Case: Cambridge Water [1994]
Storing substantial quantities of chemicals on industrial premises was described as an “almost classic case” of non-natural use.
Summary: Rylands v Fletcher Elements
Element | Key Rule | Case |
|---|---|---|
1. Bringing and accumulating | Defendant must voluntarily bring thing onto land | Giles v Walker |
2. Dangerous thing | Must create exceptionally high risk of harm if escaped | Transco |
3. Escape | Thing must move from defendant’s control to another area | Cambridge Water, Stannard v Gore |
4. Foreseeable harm | Damage caused by escape must be foreseeable | Cambridge Water |
5. Non-natural use | Use must be extraordinary/unusual | Transco, Colour Quest |
Overall principle:
Rylands v Fletcher imposes strict liability where a defendant makes a non-ordinary and dangerous use of land which results in an escape causing foreseeable damage.
What defences and remedies are available under the rule in Rylands v Fletcher?
The defences available under Rylands v Fletcher are largely the same as public nuisance, with two additional defences:
Common benefit
Act or default of the claimant
The available defences are:
Common benefit
Act or default of the claimant
Statutory authority
Act of third party
Act of God
Contributory negligence
Consent
1. Common Benefit
Where the claimant has agreed to the accumulation of the dangerous thing, the defendant will not be liable.
Consent may be implied where the thing has been accumulated for the benefit of both parties.
Case: Peters v Prince of Wales Theatre [1943]
Claimant leased a shop next to a theatre.
A sprinkler system installed in the theatre burst and flooded the shop.
The defendant was not liable because the sprinkler system benefited both parties.
The claimant was deemed to have consented to the system because it existed before the lease began.
2. Act or Default of the Claimant
No liability arises where the escape was caused entirely by the claimant’s own actions.
Case: Dunn v Birmingham Canal Co (1872)
Claimant dug underneath the defendant’s canal, causing flooding.
The defendant was not liable because the claimant caused the escape.
3. Statutory Authority
The same rules as private nuisance apply.
The defendant will not be liable where:
The activity is authorised by statute; and
The escape was an inevitable consequence of carrying out that statutory duty.
Case: Green v Chelsea Waterworks Co (1894)
Statute required the defendant to maintain high water pressure.
A water pipe burst and caused damage.
The defendant successfully relied on statutory authority because escape was inevitable.
4. Act of Third Party
The defendant is not liable where the escape was caused by an unforeseeable act of a stranger outside their control.
The defendant must show they could not reasonably have prevented the harm.
Case: Rickards v Lothian [1913]
A third party blocked a waste pipe and left a tap running, causing flooding.
The defendant was not liable because they had no reason to anticipate or prevent the act.
5. Act of God
The defendant is not liable where the escape results from an extraordinary natural event that could not reasonably have been foreseen or prevented.
Examples:
Exceptional flooding;
Earthquakes;
Unusually violent storms.
The event must be one that no reasonable person could guard against through any amount of care or foresight.
Case: Nichols v Marsland (1876)
Defendant had artificial pools created by damming a stream.
Extraordinary rainfall caused the banks to break and destroy the claimant’s bridges.
Defendant was not liable because the rainfall was an unforeseeable natural event.
Case: Transco v Stockport Metropolitan BC [2003]
Confirmed that an Act of God requires an event that cannot reasonably be guarded against.
6. Contributory Negligence
The usual rules apply.
If the claimant contributed to their own damage, damages may be reduced.
7. Consent
The normal rules of consent apply.
If the claimant agreed to the risk or activity causing the damage, liability may be avoided.
Remedies
The same remedies as private nuisance are available:
1. Damages
The most common remedy in Rylands v Fletcher.
This is because the tort usually involves isolated escapes causing:
Property damage; and
Consequential economic loss.
2. Injunctions
The court may order the defendant to stop or prevent the dangerous activity.
Summary: Rylands v Fletcher Defences
Defence | Key Principle |
|---|---|
Common benefit | Claimant impliedly consented because accumulation benefited both parties |
Act/default of claimant | Claimant caused the escape themselves |
Statutory authority | Escape was an inevitable result of statutory duty |
Act of third party | Escape caused by unforeseeable stranger |
Act of God | Extraordinary natural event |
Contributory negligence | Claimant contributed to damage |
Consent | Claimant accepted the risk |
Remedies:
✅ Damages
✅ Injunctions
(Damages are the most common remedy under the rule in Rylands v Fletcher*.)*
What is the structure for the rule in Rylands v Fletcher?
Structure for the rule in Rylands v Fletcher
· Identify the parties (claimant name v defendant name) and tort (define).
· Preliminaries: Who can sue? Who can be sued? Loss?
· Elements:
(1) The defendant brings onto land and accumulates there.
(2) Anything likely to do mischief (damage) if it escapes.
(3) It escapes.
(4) The escape caused foreseeable harm.
(5) Non-natural use of land.
· Defences
· Remedies