TORT Private Nuisance, Public Nuisance, and Rylands v Fletcher - POD

NUISANCE & RYLANDS – PQ PLAN !

PQ EVERY YEAR – RARE ESSAY Q!

TT23: Direct Nolan quote on Rylands as "shadow of its former self… would not putting this poor creature down have been more merciful"

1)PRIVATE NUISANCE

1)Who can sue?

● Those with interest in land (Hunter) – property right: freeholders, tenants with exclusive possession, or those in de facto exclusive possession

2)Who can be sued?

1. Creator of nuisance

2. Landlord if (expressly or impliedly) authorised nuisance to happen

Coventry v Lawrence: doing nothing to stop or discourage ≠ participation; Q is largely one of fact (Lord Neuberger). Carnwath dissenting: landlords here did play a central role

Southwark LBC v Mills : Ordinary residential noise (e.g. talking, walking, TV) is not a nuisance, even if poor soundproofing means neighbours hear it. Therefore, a landlord is not liable for “authorising” nuisance by letting the flats.

3. Active participants (Occupier Rules) – FOR WHAT THEY DO, DONE BY THOSE THEY CONTROL & ADOPTING NUISANCE

o Sedleigh-Denfield v O'Callaghan [1940] (HL): trespasser laid pipe; D used it for drainage; D had presumed knowledge; failed to take simple step (grid). Two grounds (Viscount Maugham): continued = knew/ought to have known + failed to take reasonable steps; adopted = made use of it.

o Leakey: Landowners are liable for nuisances caused by natural causes e.g weathering ,which occur on their land, and which they have knowledge of, as long as they fail to take reasonable steps to bring this nuisance to an end.

§ Reaffirmed that this duty was subjective – the steps which ought reasonably to be taken would vary depending on D’s resources

o Holbeck Hall Hotel: occupier who omits to remove a source of danger is only liable for the extent of damage he could reasonably foresee

§ Hotel sat above a cliff; council owned land below.

§ Cliff instability caused a massive landslip destroying support for hotel.

§ Council had done limited remedial work, but the scale of collapse was unforeseeable without expert investigation.

o Cocking v Eacott: licensor who retains control = treated as occupier (mother paying bills, controlling daughter's tenancy, daughter’s barking dog received complaints); contrast with landlord who has parted with possession

o Lippiatt v South Gloucestershire CC [1999] - landowner may be liable in nuisance for unlawful acts of people using their land as a base, even where the nuisance occurs off the land. – EMANATION CAN INCLUDE PEOPLE BASED ON D’S LAND

§ FACTS:Travellers camped on council land beside farmers’ land, repeatedly trespassed onto C’s land, causing nuisance (e.g. fouling, theft).

§ Private nuisance generally requires something to “emanate” from D’s land (Hunter). Here, the travellers themselves arguably “emanated” from the land, using it as a base for nuisance activities.

3)ELEMENTS/ACTIONABILITY: what can count as a nuisance? (Fearn Roadmap)

STEP 1: Is there an interference?

3 Kinds (Lord Lloyd, Hunter):

1) Encroachment onto neighbour’s land

2) Direct physical injury to neighbour's land

3) Interference with quiet enjoyment

- FEARN: no closed list (visual intrusion now in)

o authority for the law of nuisance applying to substantial visual intrusion into a neighbour’s property where the facts justify it

- Generally requires emanation from D’s land (Hunter, Lippiatt)

- Must be continuing or recurrent (need not be constant — Hargrave v Goldman); one-off escapes belong in Rylands

o EXCEPTION: Rylands v Fletcher: line – ‘Given that this is a one-off incident I will therefore deal with this under Rylands v Fletcher’

o consider Hargraves v Goldman: Nuisance is continuing (not necessarily constant, just persistant) (due to one off nature of this… unlikely to amount to nuisance where Rylands v Fletcher claim not made out)

NO right to:

• Percolating water in undefined channels (Bradford v Pickles [1895] — Lord Macnaghten: he may be churlish, selfish and grasping… but where is the malice?)

• TV signal (Hunter v Canary Wharf — Lord Hoffmann: owner free to build on his land absent easement)

• View, light or air (except by easement/covenant — Hunter)

STEP2: is the interference undue/unreasonable?

a) Common & Ordinary use of land? (CENTRAL TEST: FEARN) - Ordinary and usual use of land is not unreasonable use, even if it substantially interferes with the claimant’s land. Interference is unreasonable if it is special or non-ordinary.

- Visitors to the Tate Modern viewing platform could look directly into the claimants’ glass-walled flats, causing serious loss of privacy.

o HC: Intrusive overlooking could amount to nuisance, but Tate’s use was reasonable bc Cs chose glass walls and could use blinds

o SC: Reversed - issue was whether Tate’s use (mass public viewing platform overlooking homes) was an ordinary/common use of land = no

o Wrong to expect claimants to avoid the nuisance themselves with blinds

b) Locality

a. LOCALITY PRINCIPLE: whether an interference with the use and enjoyment of land is "unreasonable" (and therefore actionable) is judged by reference to the character of the neighbourhood in which the land sits

i. St Helen's Smelting v Tipping (1865): locality is central for amenity nuisances (court asks whether the interference exceeds what an ordinary person in that locality would be expected to tolerate - noise, smell, dust, vibration, visual intrusion) but drops out entirely for material physical damage to property

ii. Halsey v Esso Distinguishes between:

1. material physical damage to property (acid smuts on laundry - actionable once proved: St Helen’s), and

2. mere interference with enjoyment (e.g. noisy lorries), which depends on reasonableness (actionable nuisance bc interfered w enjoyment of the home, sleep)

c) Malice – can tip reasonable into nuisance

Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468

Whether the defendant acted maliciously is a factor relevant to whether use of the land is reasonable for the purposes of nuisance (malice behind the act rendered it unreasonable & thus unlawful)

· C bred silver foxes & put up a sign to advertise this

· D developing his fields for bungalows, thought breeding advertising would limit buyers

· C refused to remove sign so D carried out a threat to shoot with ‘black powder’ to disturb breeding

MACNAGHTEN J: D’s firing was a nuisance

● Reconciliation: malice can transform an otherwise reasonable use into a nuisance (Hollywood Silver Fox) only where the claimant has a protectable interest to begin with. Where C has no underlying right (Bradford v Pickles — no right to percolating water), malice doesn't manufacture one.

d) Hypersensitivity of C generally irrelevant (Robinson v Kilvert); recast in foreseeability terms in Network Rail v Morris [2004] — type of damage foreseeable to ordinary occupier?

e) Recreational

NOT DEFENCES:

a) ‘Coming to the nuisance’ (Coventry)

b) Planning permission - Irrelevant as to whether or not a nuisance to start with - only relevant in remedies stage

● We are drawing fine distinctions re what can & cannot be taken into account

● Fearn – interference can be looking in on people too

o Start off with interference (start with established cases, and where there isn’t analogise - use Fearn first principles (no a priori limit on what constitutes a nuisance) , and then whether undue (Fearn best focus here)

● NOISE

a) Severity

b) Reasonableness – precautions taken? – not reasonable if you did nada to help people out

c) Utility – e.g farms, creating food?

d) Malice – to what extent, if AT ALL, can you take it into account?

4)Standard?

a) DON’T NEED FAULT

b) Can know a nuisance and fail to do something to stop it

c) D cannot escape by showing they took reasonable care to avoid causing the interference

d) REASONABLE FORESEEABILIT

§ Foreseeability relevant insofar as if C is looking for damages - damages require reasonable foreseeability

§ foreseeability of the nuisance itself is needed for adoption/continuance liability

Standard of fault of D (before moving onto possible defences): Don’t need fault (But consider liability of occupiers - is in a certain sense, fault) - fault is needed in remedies though, injunction equitable assessment!

Foreseeability in private nuisance — Foreseeability is required for remoteness always, and for liability itself only in adoption/continuance cases — but never as a general fault requirement.

1. Remoteness (type of damage): YES required. Cambridge Water [1994] applies Wagon Mound (No 2) — D only liable for foreseeable kinds of damage.

2. Fault-style foreseeability (that one's use would interfere): NO. Reasonable care is no defence once substantial, unreasonable interference is shown (Fearn v Tate [2023] — Lord Leggatt: turns on "common and ordinary use", not carelessness).

3. Adopted/continued nuisances: YES required. Where D didn't create the state of affairs (third-party or natural hazard), D is liable only if D knew or ought to have known of it (Sedleigh-Denfield; Leakey; Holbeck Hall; Cocking v Eacott).

4. Hypersensitive claimants: Robinson v Kilvert recast in foreseeability terms in Network Rail v Morris [2004] — was the type of damage foreseeable to the ordinary occupier?

5)DAMAGE:

● Damage NEEDS to be proven but what damage IS depends on loss:

1) Physical damage to the land — straightforwardly recoverable.

2) Loss of amenity — measured by reference to the land's value as a place to use and enjoy, not by reference to the individual occupier's distress.

3) Diminution in the value of the interest in land — the proprietary loss.

Start with Fearn roadmap & fill inn

Chattels – ONLY RECOVERABLE AS CONSEQUENTIAL LOSS AS THE TORT PROTECTS THE LAND!

● If land flooded – may be able to recover damages for chattels or livestock lost (Hunter) (note – not generally recovered unless consequential)

DEFENCES:

1. Statutory authority (— Allen v Gulf Oil; v examinable).

2. Prescription — 20 years of actionable nuisance against the same claimant (Sturges v Bridgman; rare in practice).

3. PRESCRIPTION: Coventry

● The court acknowledged that the right to commit a nuisance by noise can be acquired by prescription (ie – long use)

● The noise nuisance through holding motocross events more than 20 times a year for a period of 20 years could give rise to a right to continue such activity by prescription.

● But, on the facts, the 20 year period had not been satisfied as the first complaints was only 16 years prior

4. Act of God / third-party act — interacts with the Sedleigh-Denfield duty: once foreseeable, it's no longer a true defence.

5. Consent and necessity — generally narrow.

6. Common enemy — water-specific doctrine: an occupier may take reasonable steps to protect their own land from flooding even if it pushes water onto a neighbour.

REMEDIES: Coventry v Lawrence (No 1) loosened the Shelfer test, so damages in lieu of an injunction are now more readily available — and this is where planning permission, public interest, and all the social-policy considerations finally get their say.

2)PUBLIC NUISANCE

Statutory Crim Offence

• s 78 Police, Crime, Sentencing & Courts Act 2022 — replaces common law offence; intentional/reckless act or omission creating risk of serious harm to public/section of public OR obstructing exercise of public right

• Common law tort survives separately

1)Who can sue?

1. AG in Public Interest

2. Private Individual – proof of ‘special damage’ (harm over & above that suffered by the general public) - particular, direct, substantial (Benjamin v Storr)

2)Elements (tort)

1.Act/omission materially (Halsey v Esso Petroleum [1961]) affecting reasonable comfort/convenience of a CLASS of HM's subjects (AG v PYA Quarries [1957] — PYA’s quarry caused noise/dust)

· Numbers a question of fact. Denning LJ: so widespread / indiscriminate that unreasonable to expect one person to act alone.

o E.g blocking up a public footpath that is only used by a couple of people: still a public nuisance since it is indiscriminate against those who may wish to walk along it

2.Unlawful interference – D’s conduct must be unlawful – either bc prohibited byt statute ir bc unreasonably interferes with public rights

· ROMER LJ: do not need to prove every member of the class was affected — it is sufficient to show that a representative cross-section of the class has been affected

Tate & Lyle v GLC [1983]: siltation of Thames around jetties — no proprietary right to depth of water (private nuisance failed) but interfered with public navigation → public nuisance succeeded; "special damage" = dredging costs.

3)Fault?

Commentators – some fault element surely!

Wringe v Cohen [1940] CA: artificial structures adjoining highway → strict-style liability regardless of knowledge (HERE: D’s house in structural disrepair, fell = damage to plaintiff’s shop)

BUT - if nuisance created by act of trespasser, or by a secret and unobservable operation of nature, neither an occupier nor an owner responsible for repair is answerable, unless with knowledge or means of knowledge he allows the danger to continue.

· Steele: "scarcely defensible"

· Goodhart: ordinary nuisance principles should apply throughout.

4)Remedies

INJUNCTIONS – to prevent continuing interference & damages for loss suffered

· Shelfer is the place to start (Shelfer test traditionally restrictive)

DAMAGES:

· Coventry v Lawrence (No 1) [2014]: prima facie form of remedy for nuisance is injunction, with the burden on Dto prove that it should not be granted. Where damages awarded in lieu of an injunction, are based on the diminution of value of C’s property due to the continuation of the nuisance.

NOTE: Court may consider public interest when deciding whether to award injunction or damages e.g effect on D’s business & employee livelihood

· Fearn - public benefit of the nuisance-creating activity is relevant to the question of remedy, not liability

MAY BE THE:

1) Diminition in value e.g loss of amenity

2) (OR GO THRU Contract law – s2(2) – instead of ability to rescind, have damages in lieu of rescission?)

‘Special Damage’ must be direct & substantial – NOT merely consequential

Corby Group Litigation v Corby BC [2008]

FACTS: Cs born with deformities in upper limbs – blamed on how Corby Council set about reclaiming large area of contaminated land acquired from British Steel Corporation

CA: - damages for personal injury STILL recoverable in public nuisance; in neither Hunter nor Transco was there an implied reversal of the ‘long-established principle that damages for personal injury can be recovered in public nuisance’ (Dyson not convinced tho…)

5)Defences

STANDARD NUISANCE DEFENCES APPLU:

1. Statutory authority

2. Prescription (20 yrs continuous use)

3. Act of God

BUT – neither coming t o the nuisance nor the defendant's reasonable care necessarily provides a defence (emphasising the tort's strict liability character in certain circumstances)

· Coventry: coming to the nuisance is not a valid defence to nuisance, tho the defendant's lawful activity on its property is relevant to the character of the locality

TRESSPASS TO LAND

3)RYLANDS & FLETCHER

1)Who can sue?

· C: needs interest in land (Transco, consistent with nuisance).

- C must have a legal interest or proprietary right in the affected land - means the person suing must be property owner, a leaseholder, or a tenant in possession of the property

- Mere presence is insufficient to bring claim

· D is occupier or owner of land

- D does not need to have a proprietary interest in the land, license will be sufficient (e.g in Rylands )

2)Liability

· Occupier who has the thing on the land which escapes NOT person who CAUSES thing to escape

NOTE: strange dangerous thing on land FOR SELF not bc person asks you

BOTH COULD BE LIABLE WHERE:

a) Licensee has fireworks

b) Licensor: yep – all good

NOT WHERE:

a) Licensor: store this for me (liable)

b) Contractor: okay

Elements:

(i) D brings/accumulates on land (an exceptionally dangerous or mischievous thing – Transco – ‘should not be easily satisfied’) ; (ii) thing likely to do mischief if escapes; (iii) non-natural use (use must be positive - means that permitting a spontaneous accumulation (of rain, vegetation, birds etc) does not count) of land (‘QUITE OUT OF THE ORDINARY’ - Transco) (iv) thing escape; (v) foreseeable damage (Cambridge Water).

3)Foreseeability?

· Must be foreseeable that IF escapes will be really bad NOT foreseeable that WILL escape (Cambridge Water)

- D must have recgonised, or ought
reasonably to have recognised an
exceptionally high risk of danger if the thing were to escape

o
regardless of how unlikely an escape might be (Transco)

NB: large quantity of something may make it exceptionally dangerous?

4)Actionable Damage

· Land & Fixtures

o NO: personal injury & pure econ (negligence claim)

o YES: Chattels – to extent is consequential

Recoverable?

1. Property damage + consequential loss

2. Remedial expenditure to avoid damage IS recoverable (Transco — gas main reinforcement)

3. Personal injury damages not recoverable (Transco) (contrast – Corby, public nuisance).

4. Pure econ loss generally not recoverable

If Remedies not apply – will now move onto claim in negligence

· Remedies are the same as under private nuisance, however it is difficult to imagine injunction
being granted as the nature of an escape normally implies a one-off event

5)Defences

Defences: Act of God (Transco – accident); act of stranger/TP (Sedleigh); consent of C; statutory authority; default of C; C’s own fault/consent

· FORESEEABILITY:

- Must be reasonably foreseeable that if thing escapes WILL cause carniage – need not be reasonably foreseeable that thing WILL escape

- BUT – for defence of act of stranger: TEST: not foresee that stranger will come along

Rylands v Fletcher (1866) LR 1 Exch 265, aff'd (1868)

HL: he, who FOR OWN PURPOSE brings on land & keeps there anything likely to do mischief if it escapes is prima facie answerable for all damage which is the natural consequence of its escape. HL added non-natural use of land required

Cambridge Water v Eastern Counties Leather [1994] HL (Goff):

foreseeability of damage prerequisite under Rylands

Tannery solvent seepage to borehole — damage not foreseeable when chemicals brought on land → no liability. Storage of chemicals = non-natural use.

Transco plc v Stockport MBC [2004] HL —restatement: rule kept, but in strict bounds.

Lord Bingham: non-natural use = “extraordinary and unusual”.

- D must bring or keep an exceptionally dangerous or mischievous
thing on to the land (Transco – should not be ‘easily satisfied’)

Determining whether the risk was created by a non-natural user of the land is best answered by asking whether or not the damage was something against which the occupier could
reasonably have been expected to have insured himself (Lord
Hoffmann in Transco v
Stockport MBC).

- NOTE: McBride and Bagshaw question whether or not this is right

Mains water pipe to flats = ordinary / natural use → no liability for embankment collapse. Remedial expense recoverable.

◦ Natural: piped water to flats (Transco); ordinary domestic activity

◦ Non-natural: industrial chemical storage (Cambridge Water); concentrated weedkiller; large reservoirs

(Bingham): "An occupier of land who can show that another occupier has brought or kept on his land an exceptionally dangerous or mischievous thing in extraordinary or unusual circumstances is entitled to recover compensation for damage caused to his property interest by the escape of that thing, subject to defences of Act of God or of a stranger, without the need to prove negligence."

NOLAN?