Nuisance and the Rule in Rylands v Fletcher

Introduction

The law of nuisance and the rule in Rylands v Fletcher (1868) govern interferences with a person’s use or enjoyment of land and liability for the escape of dangerous things. Nuisance is a tort that protects an occupier’s interest in the use and enjoyment of their land, while the rule in Rylands v Fletcher is a form of strict liability for the escape of dangerous things kept on land. Both areas of law are concerned with the balance between the rights of occupiers to use their land and the rights of neighbours not to be harmed by that use.

Private Nuisance

Private nuisance is an unlawful interference with a person’s use or enjoyment of land, or of some right over or in connection with it. The interference must be substantial and unreasonable, and it must be caused by the defendant’s activity on their own land.

The types of interference that may constitute a private nuisance include: physical damage to the claimant’s land (such as flooding, subsidence, or encroaching tree roots); interference with the comfort and convenience of the claimant’s occupation (such as noise, smells, dust, or smoke); and interference with easements or other rights over land.

The test for whether an interference is unreasonable depends on the circumstances, including: the locality (what is reasonable in an industrial area may not be reasonable in a residential area); the duration and frequency of the interference; the sensitivity of the claimant’s use or activity; and the motive of the defendant. In St Helen’s Smelting Co v Tipping (1865), the House of Lords distinguished between physical damage to property (where locality is less relevant) and personal discomfort (where locality is highly relevant).

Who Can Sue and Who Is Liable

Only a person with a proprietary interest in the affected land — such as an owner or tenant — may sue in private nuisance. A mere licensee or occupier without a proprietary interest may not sue (although they may have a claim in negligence).

The defendant is the person who created the nuisance or who continues or adopts it. The landlord may be liable where the nuisance existed before the tenancy was granted or where the landlord has retained control over the common parts.

Defences to Private Nuisance

Defences to a claim in private nuisance include: prescription (the nuisance has been continuing for 20 years or more); statutory authority (the activity is authorised by statute); and contributory negligence. The defence of coming to the nuisance — that the claimant moved to the area knowing of the nuisance — is not a defence in itself, but may be relevant to the assessment of reasonableness.

Public Nuisance

Public nuisance is an act or omission that materially affects the reasonable comfort and convenience of the public or a significant section of the public. Public nuisance is a criminal offence as well as a tort. A claim in tort for public nuisance may be brought by a person who has suffered particular damage over and above that suffered by the public generally.

Examples of public nuisance include: obstructing the highway; conducting a dangerous activity near a public place; and operating premises that cause noise or disturbance affecting the local community.

The Rule in Rylands v Fletcher

The rule in Rylands v Fletcher (1868) was established by the House of Lords and provides for strict liability where a person brings onto their land and keeps there something likely to cause mischief if it escapes. Blackburn J held that a person who brings and accumulates on their land anything likely to do mischief if it escapes is liable for all the damage that is the natural consequence of its escape.

The elements of liability under Rylands v Fletcher are: the defendant brought or accumulated something on their land; the thing was likely to do mischief if it escaped; the escape was the defendant’s non-natural use of land; the thing escaped; and the escape caused damage to the claimant.

The requirement of non-natural use was established in Rickards v Lothian (1913), where Lord Moulton held that non-natural use is a special use bringing with it increased danger to others, and not merely the ordinary use of land. The storage of large quantities of water for industrial purposes was held to be a non-natural use in Rylands v Fletcher, while the domestic use of water is an ordinary use.

The rule in Rylands v Fletcher has been absorbed into the law of negligence in certain respects. In Cambridge Water Co v Eastern Counties Leather plc (1994), the House of Lords held that foreseeability of harm is a necessary element of liability under the rule. The House of Lords in Transco plc v Stockport Metropolitan Borough Council (2003) confirmed that the rule remains part of English law but that it should be applied restrictively.

Defences to Rylands v Fletcher

Defences include: consent of the claimant; common benefit (where the thing is kept for the mutual benefit of both parties); act of a stranger; act of God; statutory authority; and default of the claimant.

Conclusion

Nuisance and the rule in Rylands v Fletcher provide protection for occupiers against interferences with their use and enjoyment of land. Private nuisance requires a substantial and unreasonable interference with the claimant’s interest in land, while the rule in Rylands v Fletcher imposes strict liability for the escape of dangerous things in the course of non-natural use. Both areas of law reflect the balance between the rights of landowners and the protection of neighbours from harm.