Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

59 Cards in this Set

  • Front
  • Back
  • Substantial and unreasonable interference with the use and enjoyment of private land.
  • Requires (some kind of) fault and (a certain kind of) damage, which should not be too remote.
  • ‘Privatenuisances are of three kinds. They are: (1)nuisance by encroachment on aneighbour’sland; (2)nuisance by direct physical injuryto a neighbour’sland; and (3)nuisance by interference with aneighbour’squiet enjoyment of his land.’
  • ‘A balance has to be maintained between the right of theoccupier to do what he likes with his own, and the right of his neighbour notto be interfered with.’
  • ‘Principle of give and take as between neighbouring occupiersof land’

FACTS contractors building a reservoir, old mining tunnels improperly dealt with, reservoir burst and flooded neighbouring land

Rylands v Fletcher (1868) LR 3 HL 330, perBlackburn J:‘A person who, for his own purposes, brings on hisland and keeps there anything likely to do mischief if it escapes, must do soat his peril, and, if he does not do so, he is prima facie answerablefor all damage which is the natural consequence of its escape.’


  • the defendant must control the land
  • something must be brought onto the land or accumulated forunnatural use
  • that “something” must be dangerous
  • the dangerous thing must escape
  • there must be (reasonably foreseeable) damage
Hunter v Canary WharfLtd [1997]

private nuisance - definition - who can sue?

FACTS 690 claims were made against Canary Wharf ltd. The claimants lived in the Isle of Dogs and complained that the erection of the Canary Wharf Tower interfered with their television reception. In addition, a second action against London Docklands Development Corporation involved 513 claims for damages in respect of excessive amounts of dust created during the construction of the tower. Some of the claimants were owners or tenants of properties, but many of the claimants had no proprietary interest in land at all. Some were children living with parents, some were relations or lodgers with use of a room and some were spouses of thetenant or owner of the property.

ISSUES 1. Whether interference with television reception was capable of giving rise to an actionable nuisance 2. Whether an interest in property was required to bring an action in

HELD 1. There is no right of action in nuisance for interference with the television reception. 2. An interest in property is required to bring an action in nuisance. Khorasanjian v Bush overruled in so far as it holds that a mere licensee can sue in private nuisance.

Lord Hoffman: “In this case, however, the defendants say that the type of interference alleged, namely by the erection of a building between the plaintiffs' homes and the Crystal Palace transmitter, cannot as a matter of law constitute an actionable nuisance. This is not by virtue of anything peculiar to television. It applies equally to interference with the passage of light or air or radio signals or to the obstruction of a view. The general principle is that at common law anyone may build whatever he likes upon his land. If the effect is to interfere with the light, air or view of his neighbour, that is his misfortune. The owner's right to build can be restrained only by covenant or the acquisition (by grant or prescription) of an easement of light or air for the benefit of windows or apertures on adjoining land.”

Lord Lloyd: ‘Private nuisances are of three kinds. They are(1) nuisance by encroachment on a neighbour's land; (2) nuisance by directphysical injury to a neighbour's land; and (3) nuisance by interference with aneighbour's quiet enjoyment of his land.’

Electrical interference of a television signal does not constitute a nuisance in law.In general a nuisance will arise from something emanating from the defendant's land.

LORD HOFFMAN In relation to planning permission:"In a case such as this, where the development is likely to have an impact upon many people over a large area, the planning system is, I think, a far more appropriate form of control, from the point of view of both the developer and the public, than enlarging the right to bring actions for nuisance at common law. It enables the issues to be debated before an expert forum at a planning inquiry and gives the developer the advantage of certainty as to what he is entitled to build."

Lord Goff:an action inprivate nuisance will only lie at the suit of a person who has a right to theland affected. Ordinarily, such a person can only sue if he has the right toexclusive possession of the land, such as a freeholder or tenant in possession,or even a licensee with exclusive possession.’

Sedleigh-Denfield vO’Callaghan [1940]

private nuisance - who can be sued? - creators, occupiers and landlords

FACTS 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.

Held: The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance.

Lord Maugham: “My Lords, in the present case I am of opinion that the Respondents both continued and adopted the nuisance. After the lapse of nearly three years they must be taken to have suffered the nuisance to continue; for they neglected to take the very simple step of placing a grid in the proper place which would have removed the danger to their neighbour s land. They adopted the nuisance for they continued during all that time to use the artificial contrivance of the conduit for the purpose of getting rid of water from their property without taking the proper means for rendering it safe.”

Lord Wright:‘A balance has to be maintained between the right ofthe occupier to do what he likes with his own, and the right of his neighbournot to be interfered with.’

Cambridge Water CoLtd v Easter Counties Leather plc [1994]

private nuisance - remoteness(foreseeability of nuisance) - Rylands v Fletcher: something must be brought onto the land or accumulated for unnatural use - the dangerous thing must escape - damage caused must be reasonably foreseeable

FACTS The defendant owned a leather tanning business. Spillages of small quantities of solvents occurred over a long period of time which seeped through the floor of the building into the soil below. These solvents made their way to the borehole owned by the Claimant water company. The borehole was used for supplying water to local residents. The water was contaminated at a level beyond that which was considered safe and Cambridge Water had to cease using the borehole. Cambridge Water brought actions based on negligence, nuisance and the rule in Rylands v Fletcher.

Held: Eastern Counties Leather were not liable as the damage was too remote. It was not reasonably foreseeable that the spillages would result in the closing of the borehole. The foreseeability of the type of damage is a pre-requisite of liability in actions of nuisance and claims based on the rule in Rylands v Fletcher in the same way as it applies to claims based in negligence. The Wagon Mound No 1 case applies to determine remoteness of damage.

Lord Goff: ‘Principle of give and take as between neighbouringoccupiers of land’

  • imposed a requirement of foreseeability of harm to cases brought under Rylands v Fletcher; "it must be shown that the defendant has done something which he recognised, or judged by the standards appropriate at the relevant place or time, or 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"
  • state that Rylands may be a sub-set of nuisance, and as such applied the same requirement of foreseeability of harm to nuisance, where previously such a requirement had not existed.
Malone v Laskey [1907]

private nuisance - who can sue?

The claimant was injured when vibrations from an engine on an adjoining property caused a bracket to come loose and the cistern to fall on her in the lavatory. She was unsuccessful in her claim as she did not have a proprietary interest in the house. Her husband was a mere licensee through his employment as a manager.

Khorasandjian v Bush [1993]

private nuisance - who can sue? - overruled by Canary Wharf
FACTS The claimant was an 18 year old woman who was being harassed by the defendant a 23 year old man. He had threatened her with violence, behaved aggressively when he saw her, shouted abuse at her, he would pester her with phone calls at her parents and grandparents house. He had spent time in prison for threatening to kill her. She obtained an injunction in civil law against him to prevent him “using violence to, harassing, pestering or communicating” with her. The defendant appealed against the injunction on the ground that the judge had no jurisdiction to grant such an injunction as harassing, pestering or communicating did not constitute any tort known to law. Whilst the persistent telephone calls were capable of constituting the tort of nuisance, the claimant did not have an interest in the land and therefore had no cause of action in tort law.

Held: His appeal was dismissed.

Dillon LJ: “To my mind, it is ridiculous if in this present age the law is that the making of deliberately harassing and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls happens to have the freehold or a leasehold proprietary interest in the premises in which he or she has received the calls.” NB this case was overruled in Hunter v Canary Wharf

Dobson v Thames Water Utilities[2011]

private nuisance - who can sue? - Impact of the Human Rights Act 1998, Article 8 ECHR
A water utility company was liable to local residents for its negligent failure to control odour from its sewerage facility. The award of damages at common law to a property owner constituted just satisfaction under for the purposes of the Human Rights Act 1998 s.8(3) precluding additional compensation to those without proprietary interests.
Smith v Scott [1973]

private nuisance - who can be sued? - creators, occupiers and landlords - Rylands v Fletcher: defendant must control the land

FACTS Lewisham Borough Council acquired property next door to the claimants’ home in order to house homeless families. The Council placed a troublesome family in the property who committed several acts of nuisance against the claimants. The council knew the family were troublesome although the terms of the tenancy agreement prohibited acts of nuisance by the tenants.

Held: The Council were not liable for the acts of the tenants. Whilst they were aware that the family might commit acts of nuisance, they had not authorised the nuisance.

Vice-Chancellor: "In general, a landlord is not liable for nuisance committed by his tenant, but to this rule there is, so far as now in point, one recognised exception, namely, that the landlord is liable if he has authorised his tenant to commit the nuisance… The exception is not based on cause and probable result, apart from express or implied authority. In the present case, the corporation let No. 25, Walpole Road to the Scotts as a dwelling house on conditions of tenancy which expressly prohibited the committing of a nuisance, and, notwithstanding that the corporation knew the Scotts were likely to cause a nuisance, I do not think it is legitimate to say that the corporation impliedly authorised the nuisance."

Tetley v Chitty [1986]

private nuisance - who can be sued? - creators, occupiers and landlords - unreasonableness - factor: extent

A council allowed a go-kart club to use their land for a race track. Nearby residents brought an action in nuisance. The council were held liable for authorising the activities of the go-kart club. The noise was an ordinary and necessary incident to go-kart racing which was the purpose for which the permission to use the land was granted.

FACTS Where a landlord expressly or impliedly gives his consent to a use of land which has as a necessary and natural consequence the cause of sufficient noise to be classed as a nuisance, the landlord can be liable in nuisance. A local authority gave permission to a go-kart club to operate a go-kart track on certain land in its ownership, and subsequently granted a seven year lease to the club for the purpose of operating the track. T and others, who were ratepayers living near the track, sought an injunction and damages against the authority, based on the nuisance caused by the noise made by the track.

Held, that the noise was a natural and ordinary consequence of the use of the track for go-karting and the council had given permission for that use, so the council was liable in nuisance. Damages alone were a wholly inadequate remedy and an injunction would also be granted.

Hussain v LancasterCity Council [1999]

private nuisance - who can be sued? - creators, occupiers and landlords

FACTS The claimants own a shop and residential property which is situated on a housing estate owned by the defendant. The claimants suffered severe harassment, including racial harassment which was predominantly from tenants and their families from the housing estate. The harassment took the form of congregating outside the shop, intimidation, shouting abuse and threats, throwing bricks, stones and balls, smashing windows, burning objects put through the door. The defendant was aware of the harassment from 1991. The council had sent letters to the perpetrators threatening them with eviction if they continued to harass the claimants, however, this was ineffective and the council did not in fact take possession proceedings against any of the perpetrators. The Council had the power to evict them for causing a nuisance under the tenancy agreements and under the Housing Act 1985. The claimants brought an action against the council for their failure to prevent the nuisance when it was in their power to do so. The defendant Council applied for a strike out which was refused. The council appealed.

Held: The appeal was allowed and the claim struck out. The case was outside the scope of nuisance since the acts of the perpetrators did not involve the tenants’ use of the tenants’ land. Furthermore the Council had neither authorised nor adopted the nuisance.

Lippiatt v SGloucestershire CC [2000]

private nuisance - who can be sued? - creators, occupiers and landlords

FACTS The defendant had failed to remove travellers who had encamped on its land and caused nuisances against neighbouring farmers.

Held: The court refused to strike out a claim in nuisance by neighbouring land owners. It was arguable that a land owner can be liable for repeated acts constituting nuisance committed from its land by those it knew were in occupation, and where no steps were taken to evict them. It was its own land from which a continuing nuisance emanated. Travellers used council land as 'launching pad' for invading neighbouring property. Crucial distinction from Hussain was that in this case the travellers were not tenants and so the land was still occupied by the council. D can be liable for a state of affairs he did not create if it can be said that he adopted or continued the state of affairs. Here they were said to have continued the nuisance by not moving the travellers on. there was no rule in law preventing an owner or occupier being liable in nuisance for the actions of his licensees occurring away from his land

Leakey v National Trust[1980]

private nuisance - who can be sued? - natural nuisances - unreasonableness - factor: practicality of avoiding interference

FACTS The NT owned land upon which there was a large mound of earth which was being gradually eroded by natural processes, and was sliding onto the P's property. 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.

Held: 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.

Megaw LJ: “The defendant's duty is to do that which it is reasonable for him to do. The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man - not the average man - can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. Just as, where physical effort is required to avert an immediate danger, the defendant's age and physical condition may be relevant in deciding what is reasonable, so also logic and good sense require that, where the expenditure of money is required, the defendant's capacity to find the money is relevant. But this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour's capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant.”

Holbeck Hotel Ltd vScarborough BC [2000]

private nuisance - who can be sued? - natural nuisances

FACTS The claimants owned Holbeck Hall, a four star hotel situated on South Cliff in Scarborough. The defendant council owned the land between the hotel and the sea. A massive land slip took place on the cliff. The lawn of the hotel disappeared into the sea and the ground under the seaward wing of the hotel had collapsed. As a result the hotel became unsafe and had to be demolished. The claimants brought an action based on the principle in Goldman v Hargrave andLeakey v National Trust. The trial judge found for the claimant and the Council appealed.

Held: Appeal allowed, the Council were not liable. In assessing the scope of the duty imposed under the principle in Leakey v National Trust the courts are to take into account the resources of the defendant.

Stuart Smith LJ: the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour's interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust.”

  • a measured duty of care was owed by a servient landowner who had actual or presumed knowledge of a danger of loss of support. That duty was not limited to escapes from the servient to the dominant land and included non feasance
  • That duty, however, depended on foreseeability and SBC had not foreseen the magnitude of the risk and would not have done so without expert evidence derived from a geological survey. The duty might extend only to warning the owner of the dominant land of the foreseen risk and did not necessarily require expensive preventative works. Furthermore, it would be unfair and unreasonable to find liability in such circumstances where the danger had been equally apparent to the dominant owner.
  • Substantial and unreasonable
  • interference with the use and enjoyment of private land
  • causing damage
  • Factorsrelevant to unreasonableness:
  • Locality
  • Extent
  • Duration and frequency
  • Social utility
  • Practicality of avoiding interference
  • Malice
  • Sensitivity of claimant
Sturges v Bridgman (1879)

unreasonableness - factor: locality - defences: prescription, coming to the nuisance

FACTS The defendant ran a confectionary shop which operated a noisy pestle and mortar. It had done so for over 20 years but had no neighbouring property so there were no complaints as to its use. The claimant then built a consulting room for his practice as a physician adjacent to the defendant’s noisy shop. The claimant brought an action in nuisance to obtain an injunction to prevent the continuance of the noise. The defendant, relying on the Prescription Act, argued that he had obtained the right to be noisy by operating the noisy pestle for over twenty years.

Held: The use of land prior to the construction of the consulting room was not preventable or actionable and therefore it was not capable of founding a prescription right. Liable for nuisance. What constitutes reasonable use of one's property depends on the character of the locality and that it is no defence that the plaintiff "came to the nuisance".

Thesiger LJ:‘whetheranything is a nuisance or not is a question to be determined, not merely by anabstract consideration of the thing itself, but in reference to itscircumstances; what would be a nuisancein Belgrave Square would not necessarily be so in Bermondsey;and where a locality is devoted to a particular trade or manufacture carried onby the traders or manufacturers in a particular and established manner notconstituting a public nuisance, Judges and juries would be justified infinding, and may be trusted to find, that the trade or manufacture so carriedon in that locality is not a private or actionable wrong.’

Baxter v Camden LBC(No 2) [2001]

unreasonableness - factor: locality

FACTS Tenants of council flats with ineffective sound insulation argued that the landlord council was in breach of the covenant for quiet enjoyment in their tenancy agreements.

Held: A landlord’s duty to allow quiet enjoyment does not extend to a positive duty to require an improvement in the sound-proofing of a building, well beyond standards which had applied at the time when the houses were built. This applied even though the noise would not now be acceptable. In such circumstances, there was no nuisance committed. Acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to action. The covenant for quiet enjoyment is broken if the landlord or someone claiming under him does anything which substantially interferes with the tenant’s title to or possession of the demised premises or with his ordinary and lawful enjoyment of the demised premises. The interference need not be direct or physical.

TUCKER LJ: :‘Occupiers oflow cost, high density housing must be expected to tolerate higher levels ofnoise from their neighbours than others in more substantial and spacious premises.’

St Helens Smelting Cov Tipping (1865)

unreasonableness - factor: locality
FACTS The claimant owned a manor house with 1300 acres of land which was situated a short distance from the defendant’s copper smelting business. He brought a nuisance action against the defendant in respect of damage caused by the smelting works to their crops, trees and foliage. There were several industrial businesses in the locality including and alkali works. The defendant argued that the use of property was reasonable given the locality and the smelting works existed before the claimant purchased the property.

Held Where there is physical damage to property, the locality principle has no relevance. It is no defence that the claimant came to the nuisance.

Lord Westbury LC:“My Lords, in matters of this description it appears to me that it is a very desirable thing to mark the difference between an, action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. 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. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration. I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to circumstances the immediate result of which is sensible injury to the value of the property.”

Gillingham BC vMedway (Chatham) Dock Co Ltd [1993]

unreasonableness - factor: locality
FACTS The defendant had obtained planning permission to turn a disused dockyard into a commercial port operating 24 hours a day. Local residents brought an action in public nuisance in relation to the noise created by Heavy Goods Vehicles throughout the night. They were seeking an injunction to restrain the activities during the night.

It was held that where planning permission is given for a development or change of use, the question of nuisance will thereafter fall to be decided by reference to a neighbourhood with that development or use and not as it was previously. The claimant’s actions therefore failed. Held that the dock's activities were not a public nuisance. This was because the commercial dock had significantly changed the character of the area, changing the definition of what was and was not unreasonable behaviour.

Buckley J: "Parliament has set up a statutory framework and delegated the task of balancing the interests of the community against those of individuals and of holding the scales between individuals, to the local planning authority. There is the right to object to any proposed grant, provision for appeals and inquiries, and ultimately the minister decides. There is the added safeguard of judicial review. If a planning authority grants permission for a particular construction or use in its area it is almost certain that some local inhabitants will be prejudiced in the quiet enjoyment of their properties. Can they defeat the scheme simply by bringing an action in nuisance? If not, why not? It has been said, no doubt correctly, that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance. However, 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."

Wheeler v JJ SaundersLtd[1996]

unreasonableness - factor: locality
FACTS 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.

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.

Coventry v Lawrence [2014]

unreasonableness - factor: locality - planning permission - defences: coming to the nuisance, prescription
FACTS The claimants brought a nuisance action against the defendant in respect of the noise generated by motor sports conducted on their land. The motor sports included speedway racing, stock car racing banger racing and motorcross. Planning permission had been granted in 1975 for the construction of a speedway stadium and for the construction of a further motorcross stadium in 1992. The defendant held a certificate of lawful use under the Town and Country Planning Act 1990. The claimant purchased a house 864 meters from the track in 2006. The trial judge found for the claimants and awarded damages and an injunction. The defendants appealed contending: 1) the judge had failed to properly take into account the effect of planning permission on changing the character of the locality 2). The claimants had come to the nuisance which had been operating for many years 3) the defendants had acquired a right by prescription to causes such nuisance.

Held: Appeal allowed on the first ground. There was no need to consider the second and third grounds.

Jackson LJ:“In the light of the authorities cited above, I would summarise the law which is relevant to the first ground of appeal in four propositions: i) A planning authority by the grant of planning permission cannot authorise the commission of a nuisance. ii) Nevertheless the grant of planning permission followed by the implementation of such permission may change the character of a locality. iii) It is a question of fact in every case whether the grant of planning permission followed by steps to implement such permission do have the effect of changing the character of the locality.iv) If the character of a locality is changed as a consequence of planning permission having been granted and implemented, then:a) the question whether particular activities in that locality constitute a nuisance must be decided against the background of its changed character;b) one consequence may be that otherwise offensive activities in that locality cease to constitute a nuisance.”“In January 2006, when the claimants purchased Fenland, the position was this. For the last thirteen years various forms of motor sports had been taking place at the Stadium and the Track on numerous occasions throughout the year. These noisy activities, regarded by some as recreation and by others as an unwelcome disturbance, were an established feature, indeed a dominant feature, of the locality…The noise of motor sports emanating from the Track and the Stadium are an established part of the character of the locality. They cannot be left out of account when considering whether the matters of which the claimants complain constitute a nuisance.”

Walter v Selfe (1851)

unreasonableness - factor: extent

The burning of bricks was a nuisance to the plaintiff's neighbouring house. An injunction was granted. The court should ask: "ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?"
Midwood v Manchester [1905]

unreasonableness - factor: durationand frequency

The defendants were empowered by the Manchester Electric Lighting Order, 1890, made under the Electric Lighting Acts, 1882 and 1888, and confirmed by Act of Parliament, to supply electrical energy in their district, and for that purpose to lay down electrical mains, but it was provided by clause 70 of the order that nothing therein contained should exonerate them from any indictment, action, or other proceeding for nuisance in the event of any nuisance being caused by them. One of their mains fused, and the bitumen in which the main was laid in consequence became volatilized into an inflammable gas, which accumulated for some time, and then exploded, causing a fire by which the plaintiffs' goods were damaged:—

HELD A plaintiff with standing to sue should be entitled to recover in nuisance for damage to chattels.

British Celanese Ltdv AH Hunt Ltd [1969]

unreasonableness - factor: duration and frequency - Rylands v Fletcher: something must be brought onto the land or accumulated for unnatural use

An electronics company stored foil strips on their property which blew onto adjoining land, causing the power supply to a nearby yarn manufacturers to be cut off. A similar incident had occurred 3 years earlier and the defendants had been warned to store their strips properly; it was held that even though the power cut was a one-off event, the method of storing the foil strips constituted a continuing state of affairs, and the defendants were liable.
SCM (UK) Ltd v WJWhittal & Son Ltd [1970]

unreasonableness - factor: duration and frequency

FACTS While preparing to build a boundary wall adjoining a road, the defendants, who were building contractors, damaged a cable supplying electricity to the plaintiffs' factory which was situated some distance away but in the same road. The plaintiffs did not own or have any possessory or proprietary rights in the damaged cable. By their amended statement of claim, the plaintiffs claimed that electricity to their factory was cut off for about seven hours, causing them loss of one day's production and damage to plant and raw materials. They also claimed that the defendants were negligent, that the consequences of their acts were reasonably foreseeable and that they owed a duty to the plaintiffs to take reasonable care not to damage the cable. Further and alternatively they claimed that the defendants by their operation had caused a nuisance which led to the damage they suffered. By their defence, the defendants denied that they were negligent, or that they owed a duty of care to the plaintiffs, or that they had committed an actionable nuisance. Alternatively, they pleaded that the damages were too remote, and submitted that the plaintiffs' only interest was in the loss of their contracts with customers and not in the cable which suffered direct or primary damage.

On a preliminary question whether on the facts alleged in the amended statement of claim the defendants were liable in law to the plaintiffs for the damages claimed:—

Held, (1) that, on the assumption that the plaintiffs' loss was reasonably foreseeable as pleaded in their amended statement of claim, the plaintiffs were so closely affected by the defendants' act in that particular place that the defendants, if they had directed their minds to their operations and to the electric cable, ought reasonably to have had the plaintiffs in contemplation as likely to be affected in the manner alleged in the statement of claim and, accordingly, the defendants were liable in law to the plaintiffs for the damage claimed

Barr v Biffa Waste Management Services Ltd [2012]

unreasonableness - factor: duration and frequency - defences: statutory authority

A judge had erred in dismissing a claim of nuisance relating to smells emitted by a waste-tipping site by extending the existing principles of "reasonable user" and considering that complying with the terms of a permit meant that such use of the site had been reasonable. There was no basis for using a statutory scheme to cut down private law rights and, in any event, the permit did not authorise the emission of such smells.
Miller v Jackson [1977]

unreasonableness - factor: social utility

FACTS The defendants were members of the Lintz Cricket Club. Cricket had been played at Lintz cricket ground for over 70 years. The land was owned by the National Coal Board (NCB) who also owned some fields surrounding the grounds. Four years prior to the action, the NCB sold one of the fields and a development of Wimpey homes was put up in close proximity to the cricket ground. Mrs Miller purchased one of the houses and brought an action against the cricket club seeking an injunction to prevent them playing cricket at the ground. Initially quite a number of balls were hit over the houses. However, in 1976 the cricket club erected a higher fence and the number of balls hit out was reduced to nine over a two year period. There had been no personal injuries resulting from the balls but some property damage had been caused which the cricket club had paid for. Mrs Miller complained that she could not use her garden during matches and would often stay out of the house altogether.

Held: The defendants were liable in both negligence and nuisance (Lord Denning dissenting) However, Bruce LJ refused the injunction on the grounds that it would be inequitable to grant an injunction given that the cricket ground had been used for so long and would be a loss to the community and Mrs Miller received the benefit of being adjacent to an open space.Lord Lane would have granted the injunction stating that the decision in Sturges v Bridgeman involves the assumption that it is no defence for the defendant to show that they came to the nuisance.

Dennis v Ministry ofDefence [2003]

unreasonableness - factor: social utility

Facts D (the claimants) owned and occupied an estate about two miles from RAF Wittering, an operational and training base for Harrier Jump Jets. D claimed that they suffered severe noise disturbance every time the Harrier pilots carried out training circuits: an average of 70 times a day. D alleged that the noise nuisance constituted a very serious interference with their enjoyment of their land and amounted to a violation of their fundamental human rights. D instituted judicial proceedings against the defendants, the Ministry of Defence, seeking a declaration and damages or in the alternative damages amounting to £10,000,000.Although the MoD accepted that operations at the RAF Wittering caused noise and disturbance to D, they raised a defence that the Harrier training was undertaken for the public benefit and that they had prescriptive right over the land as D had bought their property at a time when RAF Wittering was already established.

HELD The court refused to grant the declaration sought but awarded D damages of £950,000, representing loss of capital value, past and future loss of use and past and future loss of amenity. It held that the noise from the Harrier jets amounted to a nuisance and constituted a serious interference with the claimants' enjoyment of their land. The court refused to treat the Harrier training as an ordinary use of land and held that although there was a public benefit to the continued training of Harrier pilots, the claimants should not be required to bear the cost of the public benefit. Appropriate damages were awarded and deemed as just satisfaction under the Section 8 of the Human Rights Act 1998.

occasions where the public interest is held to outweigh private inconvenience, although in such circumstances, where the activity amounts to an actionable nuisance damages will usually be awarded in lieu of an injunction

Andraev Selfridge & Co Ltd [1938]

unreasonableness - factor: practicalityof avoiding interference

FACTS Andrae operated a hotel from 119 -121 Wigmore Street, London. This was part of the same island site that Selfridges were developing as part of a rolling project. Those works had continued throughout the night without interruption. Following complaints by Mrs Andrae the works paused between 10pm and 7am each night, but this was still unsatisfactory.Mrs Andrae argued that those ongoing works constituted a nuisance to her business, and claimed damages of £4,500.

HELD Adjoining owners are expected to put up with a certain amount of discomfort. Temporary building works are a common and ordinary use of land. If the building owner takes all reasonable steps to try and protect adjoining owners and/or occupiers he will not be liable even if, despite the precautions, they are put to discomfort.

Christie v Davey [1893]

unreasonableness - factor: malice

FACTS The claimant was a music teacher. She gave private lessons at her home and her family also enjoyed playing music. She lived in a semi-detached house which adjoined the defendant’s property. The defendant had complained of the noise on many occasions to no avail. He took to banging on the walls and beating trays and shouting in retaliation.

Held: The defendant’s actions were motivated by malice and therefore did constitute a nuisance. An injunction was granted to restrain his actions.

Hollywood Silver Fox Farm Ltd v Emmet [1936]

unreasonableness - factor: malice
FACTS The claimant bred silver foxes for their fur. Silver foxes are particularly timid and if disturbed when pregnant they are prone to miscarry. If alarmed when they have young they may devour them. The defendant was the claimant’s neighbour. He objected to the fox farm and fired a gun on his own land close to the breeding pens with the intention to scare the foxes and impede breeding. The claimant brought an action in nuisance.

Held: The defendant was liable despite the abnormal sensitivity of the foxes because he was motivated by malice.

Bradford v Pickles [1895]

unreasonableness - factor: malice
FACTS D owned land containing underground streams which fed C's waterworks. D began to sink shafts for the alleged purpose of draining certain beds on stone the effects of which were to seriously affect watersupplies to D's operations. C alleged that D was not acting in good faith but to compel them to purchase his land.

ISSUE Can a use of property which would be legal if due to a proper motive become illegal because it is prompted by a motive which is malicious?

HELD Appeal dismissed. The court held that as long as Pickles had a right to take an action on his property, there is no way that can be converted to an illegal action, no matter what his motives. There was no reason why he should not demand that the city pay for his interests in the water beneath his land. One has the right to use his land as he wishes.

Eastern and SouthAfrican Telegraph Co v Cape Town Tramways [1902]

unreasonableness - factor: sensitivityof the claimant

FACTS The plaintiff's submarine cable transmissions were disturbed by escape of electric current from defendant's tramway. It was held that since the current was not causing any problem to regular users and it was causing problem to the cables only because they were too sensitive and so the defendant cannot be held liable. One cannot increase his neighbour's liabilities by putting his land to special uses.

Lord Robertson: ‘A man cannotincrease the liabilities of his neighbour by applying his own property tospecial uses, whether for business or pleasure…’

Cooke v Forbes (1867)

unreasonableness - factor: sensitivity of the claimant

FACTS One process in the weaving of cocoa-nut fiber matting was to immerse it in bleaching liquids after which it was hung out to dry. Fumes from a manufacturer of sulphate of ammonia had the effect of turning the matting from a bright to a dull and blackish color. The reason for this was that the bleaching liquid contained chloride of tin, which, when affected by sulphurated hydrogen, is turned to a darker color. An injunction was sought to stop the manufacturer from emitting the fumes. The lawyers for the defendant argued that if the plaintiff "were not to use . . . a particular bleaching liquid, their fiber would not be affected; that their process is unusual, not according to the custom of the trade, and even damaging to their own fabrics."

"It is no answer to a complaint by a manufacturer of a nuisance to his trade, to say that the injury is felt only by reason of the delicate nature of the manufacture."

Robinson v Kilvert (1889)

unreasonableness - factor: sensitivity of the claimant

FACTS 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.

Held: The defendant was not liable. The damage was due to the special sensitivity of the paper.

Cotton LJ:"It would, in my opinion, be wrong to say that the doing something not in itself noxious is a nuisance because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life. Here it is shewn that ordinary paper would not be damaged by what the Defendants are doing, but only a particular kind of paper, and it is not shewn that there is heat such as to incommode the workpeople on the Plaintiff's premises. I am of the opinion, therefore, that the Plaintiff is not entitled to relief on the ground that what the Defendants are doing is a nuisance."

Lopes LJ: "I think the Plaintiff cannot complain of what is being done as a nuisance. 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."

McKinnon Industries vWalker [1951]

unreasonableness - factor: sensitivity of the claimant

FACTS The defendant manufactured steel and iron products 600 feet from the claimant’s property. The claimant had a dwelling house and also a commercial florists and nursery. As part of his business he specialised in growing orchids which are known for their particular sensitivity. The claimant brought an action in relation to noxious fumes and smuts which had deposited over his shrubs, trees, hedges and flowers causing them to die.

Held: The defendant’s actions constituted an unlawful nuisance and therefore the claimant was entitled to recover damages in respect of the orchids despite the sensitive nature of the flowers.

As soon as the defendants had infringed the right to ordinary enjoyment they can also claim protection from damage because of unusual sensitivity.

Network RailInfrastructure Ltd v Morris [2004]

unreasonableness - factor: sensitivity of the claimant - remoteness(foreseeability of nuisance)

FACTS The claimant ran a recording studio in Croydon. The studio was situated 80 metres from the London to Brighton main line railway track. In 1994, new track circuits were installed which operated the signalling system on the rail track. This circuit system generated an electro-magnetic field which interfered with the use of the electric guitars on the claimant’s premises. This resulted in him losing several clients. The claimant brought an action in nuisance for the interference.

Held: The defendant was not liable. The use of amplified electric guitars fell into the category of extraordinary sensitive equipment. Furthermore the interference was not foreseeable.

DelawareMansions Ltd v Westminster City Council [2002]

unreasonableness - factor: remoteness (foreseeability of nuisance)

Liability for repairing damage caused by tree roots. The court upheld a ruling of the Court of Appeal, stating that if a defendant knew about a continuing nuisance (in this case, cracking caused by tree roots), and had been given notice and opportunity to deal with it but failed to do so, then a claimant was entitled to receive costs for removing the nuisance themselves.
Nichols v Marsland (1876-77)

defences - inevitable accidents (Act of God) - defence to Rylands v Fletcher

FACTS The defendant diverted a natural stream on his land to create ornamental lakes. Exceptionally heavy rain caused the artificial lakes and waterways to be flooded and damage adjoining land. The defendant was held not liable under Rylands v Fletcher as the cause of the flood was an act of God.

Mellish LJ: “Now the jury have distinctly found, not only that there was no negligence in the construction or the maintenance of the reservoirs, but that the flood was so great that it could not reasonably have been anticipated, although, if it had been anticipated, the effect might have been prevented; and this seems to us in substance a finding that the escape of the water was owing to the act of God. However great the flood had been, if it had not been greater than floods that had happened before and might be expected to occur again, the defendant might not have made out that she was free from fault; but we think she ought not to be held liable because she did not prevent the effect of an extraordinary act of nature, which she could not anticipate.”

HRA 1998, s 3(1), Article 8
Right to respect for private and family life

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Allenv Gulf Oil Refining [1981]

defences - statutory authority

FACTS 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.

Held: The defendant was not liable as it had a defence of statutory authority.

Lord Wilberforce: "The respondent alleges a nuisance by smell, noise, vibration, etc. The facts regarding these matters are for her to prove. It is then for the appellants to show, if they can, that it was impossible to construct and operate a refinery upon the site conforming with Parliament's intention, without creating the nuisance alleged, or at least a nuisance. Involved in this issue would be the point discussed by Bruce LJ in the Court of Appeal, that the establishment of an oil refinery, etc. was bound to involve some alteration of the environment and so the standard of amenity and comfort which neighbouring occupiers might expect. To the extent that the environment has been changed from that of a peaceful unpolluted countryside to an industrial complex (as to which different standards apply Sturges v. Bridgman (1879) 11 Ch.D.852) Parliament must be taken to have authorised it. So far, I venture to think, the matter is not open to doubt. But in my opinion the statutory authority extends beyond merely authorising change in the environment and an alteration of standard. It confers immunity against proceedings for any nuisance which can be shown (the burden of so showing being upon the appellants) to be the inevitable result of erecting a refinery upon the site not, I repeat, the existing refinery, but any refinery however carefully and with however great a regard for the interest of adjoining occupiers it is sited, constructed and operated. To the extent and only to the extent that the actual nuisance (if any) caused by the actual refinery and its operation exceeds that for which immunity is conferred, the plaintiff has a remedy."

Marcicv Thames Water Utilities [2004]

defences - statutory authority

The claimant, whose property had been subject to flooding as a result of overloaded sewers, did not have a common law action in nuisance against the defendant as to allow such an action would set at nought the comprehensive statutory scheme laid down in the Water Industry Act 1991. The claim under the Human Rights Act 1998 was ill-founded and the statutory scheme complied with the European Convention on Human Rights.

FACTS M's property was regularly flooded by reason of overloaded sewers. The flooding was not due to any failure on T's part to clean or maintain the sewers but was, rather, due to a significant increase in the volume of sewage entering the sewers since the time of their construction. T had no control over the volume of sewage entering the system. M had argued that (1) T's failure to construct new sewers with greater capacity gave rise to an actionable nuisance, and (2) the flooding constituted an unjustified interference with M's right to respect for his private and family life under the Human Rights Act 1998 Sch.1 Part I Art.8 and his right to the peaceful enjoyment of his possessions under Sch.1 Part II Art.1 of the Act.

HELD allowing the appeal, that (1) a cause of action in nuisance would be contrary to the statutory scheme laid down in the Water Industry Act 1991 under which T operated the sewers. Individual householders could bring proceedings in respect of inadequate drainage only when the undertaker had failed to comply with an enforcement order made under the 1991 Act, and a parallel common law right whereby individual householders might bring court proceedings where no enforcement order had been made would set at nought the statutory scheme and the claim under the 1998 Act was ill founded. M could have pursued his complaint with the independent regulator but had chosen not to do so. Parliament had acted well within its bounds as a policy maker and the statutory scheme was compliant with the 1998 Act.

Dobsonv Thames Water Utilities [2011]

defences - statutory authority

A water utility company was liable to local residents for its negligent failure to control odour from its sewerage facility. The award of damages at common law to a property owner constituted just satisfaction under for the purposes of the Human Rights Act 1998 s.8(3) precluding additional compensation to those without proprietary interests. T had failed to manage M with all reasonable regard and care for the interests of others. Consequently, T had failed properly to respect D's rights. T could not escape liability under the art.8 of the Convention using the statutory duty defence under the Water Industry Act 1991 s.94(1)(b) as it had failed to have reasonable regard for others. T had been immune while performing its statutory duty but remained liable for nuisance under the exception in Allen v Gulf Oil Refining Ltd [1981] A.C. 1001.
  • Abatement
  • Injunction
  • Damages
  • s.50 of the Supreme Court Act 1982 allows the court to award damages in lieu of an injunction
  • Shelfer v City of London Electric Lighting Co [1891] 1 Ch 287 at 322-3: ‘Inmy opinion, it may be stated as a good working rule that –
  • (1) if the injury is small,
  • (2) And is one which is capable ofbeing estimated in money,
  • (3) And is one which can adequately becompensated by a small money payment,
  • (4) And the case is one in which itwould be oppressive to the defendant to grant an injunction: -thendamages in substitution for an injunction may be given.’
  • Kennaway v Thompson [1981] QB 88
  • Coventry v Lawrence [2014] UKSC 13
Kennawayv Thompson [1981]

remedies - damages

FACTS The defendant was a member and acting on behalf of the Cotswold Motor Boat Racing Club which carried out motor boat racing. Water sports including motor boat racing had been carried out at the Club’s waters since the early 1960s. 1972 the claimant moved into a house which she had had built on land she inherited from her father. The house was situated 390 yards from the start line for the races. The frequency of the races increased over time and the club’s waters were often used as a venue for both national and international races. The claimant brought an action against the club in nuisance for the noise and disturbance experienced. She was successful in the claim and was awarded damages, however, the judge refused to grant an injunction following Miller v Jackson. The claimant appealed.

Held: Appeal allowed and an injunction was granted. Lord Cairn’s Act allowing discretion to award damages in lieu of an injunction should only be used in exceptional circumstances Shelfer v City of London Electric Lighting approved, Miller v Jackson doubted.

Thomas v MerthyrTydfil Car Auction Ltd [2012]
FACTS The claimants (T) claimed damages from the defendant (M), which operated a vehicle auction business, for nuisance in respect of the six-year period leading up to the commencement of proceedings in 2010. T lived near to M's premises. In 1995, M began conducting some activities in a yard close to T's home. In 1997, M was granted planning permission to use the land for the storage, parking and valeting of vehicles to be sold at auction. T complained that M's activities were excessively noisy and, from time to time, created harmful fumes. M denied that its activities constituted a nuisance, maintaining that it operated the business lawfully and strictly in accordance with planning permission. T asserted that the noise and fumes emanating from M's premises subsisted at such a level as to constitute a nuisance from 1995 until shortly after the proceedings commenced.

Judgment for claimants. During the six-year period leading up to the instant proceedings, T had been subjected to noise through the revving of engines, the use of high-pitched reversing bleepers, the continued idling of vehicle engines, and high-impact bangs and crashes emanating from M's premises. The noise from M's premises had occurred with a frequency and to an extent which amounted to a nuisance. T had established that M had unduly interfered with their comfortable and convenient enjoyment of their land. M could not rely upon the grant of planning permission and the implementation of that permission as legal authorisation for activities which amounted to a nuisance. However, the evidence did not demonstrate that fumes emanating from M's premises interfered with the enjoyment of the home owned by T. An appropriate award of general damages to compensate T was £9,000.

Transco plc vStockport Metropolitan BC [2004]

Rylands v Fletcher: Something must bebrought onto the land or accumulated for unnatural use - that ‘something’ must be dangerous - damage caused must be reasonably foreseeable

BINGHAM LJ: ‘I think itclear that ordinary user is apreferable test to natural user, making it clear that the rule in Rylands vFletcher is engaged only where the defendant’s use is shown to be extraordinary and unusual. This is nota test to be inflexibly applied: a use may be extraordinary and unusual at onetime or in one place but not so at another time or in another place (although Iwould question whether, even in wartime, the manufacture of explosives couldever be regarded as an ordinary user of land…)’

Bingham LJ:‘It must beshown that the defendant has done something which he recognised, or judged bythe standards appropriate at the relevant place and time, he ought reasonablyto have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be anescape, however unlikely an escape may have been thought to be.’

FACTS The defendant council were responsiblefor the maintenance of the pipe work supplying water to a block of flats. Aleak developed which was undetected for some time. The water collected at anembankment which housed the claimant’s high pressure gas main. The water causedthe embankment to collapse and left the gas main exposed and unsupported. Thiswas a serious and immediate risk and the claimant took action to avoid thepotential danger. They then sought to recover the cost of the remedial worksunder the principle established in Rylands v Fletcher.

Held: The defendantwas not liable. The council’s use of land was not a non-natural use.

Rickards v Lothian [1913]

Rylands v Fletcher: something must be brought onto the land or accumulated for unnatural use

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.

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

Giles v Walker (1890)

Rylands v Fletcher: something must be brought onto the land or accumulated for unnatural use

Seeds from some thistles on the defendant’s land blew into neighbouring land owned by the claimant and damaged his crops. The defendant was not liable as he had not brought the thistles onto his land and there can not be liability under Rylands v Fletcher for a thing which naturally accumulates on land.

NB This point of law was doubted in Leakey v National Trust

AttorneyGeneral v Corke [1933]

Rylands v Fletcher: that 'something' must be dangerous

The defendant whose land had been occupied by caravan dwellers was liable in public nuisance and under the rule in Rylands v Fletcher and was restrained by injunction. Offending acts had been committed by the caravan dwellers, who were permitted to occupy the defendant’s land, on other land in the neighbourhood. Bennett J rejected the submission of the defendant’s counsel that: ‘The defendant cannot be made responsible for acts done by the caravan dwellers off the defendant’s property.’
Read v Lyons [1947]

Rylands v Fletcher: the dangerous thing must escape

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.

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.

Crown River CruisesLtd v Kimbolton Fireworks Ltd [1996]

Rylands v Fletcher: the dangerous thing must escape

The defendant conducted a firework display. Some burning debris from the display landed on a nearby barge which caught fire. The defendant was liable despite the nuisance only lasting twenty minutes.
Pontingv Noakes [1894]

Rylands v Fletcher - defences: default of the claimant

FACTS The claimant’s horse died after it had reached over the defendant’s fence and ate some leaves from a Yew tree. The defendant was not liable under Rylands v Fletcher as the Yew tree was entirely in the confines of the defendant’s land and there had therefore been no escape.

Charles, J:"I do not see that they can be made responsible for the eating of these Yew leaves by an animal which, in order to reach them, had come upon his land. The hurt which the animal received was due to his wrongful intrusion. He had no right to be there and the owner therefore has no right to complain."

Box v Jubb (1879)

Rylands v Fletcher - defences: act of a stranger

FACTS The defendant had a reservoir on their land. There was another reservoir situated at a higher level than the defendant’s. The owner of this other reservoir emptied it through a drain connected to the defendant’s reservoir causing the defendant’s reservoir to overflow and damage the claimant’s land. The claimant brought an action under Rylands v Fletcher contending that there was a non natural user of the land and that there had been an escape of water that caused damage.

Held: The defendant was not liable for the damage as it was caused by the act of a third party over which the defendant had no control.

Chief Baron Kelly: “The question is, what was the cause of this overflow? Was it anything for which the Defendants are responsible? Did it proceed from their act or default, or from that of a stranger over which they had no control? The case is abundantly clear on this, proving beyond a doubt that the Defendants had no control over the causes of the overflow and no knowledge of the existence of the obstruction. The matters complained of took place through no default or breach of duty of the Defendants, but were caused by a stranger over whom and at a spot where they had no control. It seems to me to be immaterial whether this is called vis major or the unlawful act of a stranger; it is sufficient to say that the Defendants had no means of preventing the occurrence. I think the defendants could not possibly have been expected to anticipate that which happened here and the law does not require them to construct their reservoir and the sluices and gates leading to it to meet any amount of pressure which the wrongful act of a third person may impose”

Fire Prevention (Metropolis) Act 1774, S 86: No action to lie against a person where the fire accidentally begins
Filliter v Phippard (1847)

fire - negligence

Its words suppose the fire to begin accidentally on the estate of him from whose estate it spreads. Now this fire did not begin accidentally, but was knowingly lighted by the defendant himself.

Lord Denman CJ considered a 1707 Act restricting liability for fire damage: ‘The Act contemplates the probability of fires in cities and towns arising from three causes, the want of water, the imperfection of party walls, and the negligence of servants. The Act provided some means for supplying these material defects: but the third section was directed against the moral one, the carelessness or negligence of servants, which (it observes) often causes fires: and it imposes on the servant by whose negligence the fire may have been occasioned a fine of 100l., to be distributed among the sufferers at the discretion of the churchwardens, or imprisonment for eighteen months in case of nonpayment. . . The most usual cause of fires was assumed to be the negligence of servants: and the enactment might operate to induce habits of caution in that important class. The same statute, in the sixth section, enacts that, after a day named, no action shall be maintained against any person in whose house or chamber any fire shall accidentally begin, nor shall any recompence be made by such person for any damage suffered or occasioned thereby.’
Mason v Levy AutoParts of England Ltd [1967]

fire - Rylands v Fletcher

The defendants, in connection with their business as dealers, stored large quantities of combustible materials in their yard up to its common boundary of some 210 feet with the plaintiff's garden in which stood his house, and they provided fire-fighting equipment and access lanes substantially as recommended by the local fire brigade, although some access lanes were narrower than recommended. A railway station was close by the yard. A severe fire of unknown cause started in the yard; it was detected at an early stage by the defendants, but the fire-fighting equipment was ineffective to control it, and it spread to the plaintiff's *531 land. He brought an action for damages against the defendants, who relied on section 86 of the Fires Prevention (Metropolis) Act, 1774 . 1 On the contentions that the onus of disproving negligence was on the defendants, that they failed to provide adequate means of detecting or extinguishing fire, and that they were liable for allowing fire to escape from their land and failed so to use it as not to harm the plaintiff:-

Held:(1) that no onus lay on the defendants of disproving negligence (2) That the defendants were under no duty to maintain a constant lookout for fire, nor was the ineffectiveness of the provided equipment to control or extinguish the fire proof of culpable failure to provide more adequate equipment, and there was no reason to suppose that, if the narrow access lanes had been wider, the fire would have been controlled (3) That, on the principle sic utere tuo ut alienum non laedas, the defendants were liable to the plaintiff if they brought on their land things likely to catch fire, and kept them there in such conditions that, if they ignited, the fire would be likely to spread to his land, and they did so in the course of some non-natural use of their land, and the things ignited and the fire spread. Accordingly, since the defendants had brought into their yard combustible materials which were kept in such conditions that if they ignited the fire would be likely to spread to the plaintiff's land, and the defendants' use of the land was nonnatural, they were liable to the plaintiff in damages.

Rylands v Fletcher: Mason v Levy Auto Parts of England Ltd [1967]
Mackenna J: To holddefendant liable, one must show: ‘

  • he brought onto his land things likely to catch fire, and kept them there in such conditions that if they did ignite the fire would be likely to spread to the plaintiff’s land;
  • he did so in the course of some non-natural use;
  • and the things ignited and the fire spread.’
Stannardv Gore [2012]

accidental fire

The guidance set out in Transco Plc v Stockport MBC [2003] UKHL 61, [2004] 2 A.C. 1 for the application of the rule in Rylands v Fletcher applied to cases involving the escape of fire. However, cases of fire damage were likely to be very difficult to bring within the rule for several reasons, including the fact that it was the "thing" which had been brought onto the land which had to escape, not the fire.

What had escaped was the fire, not the tyres. In any event, keeping tyres on the premises of a tyre-fitting business was not an extraordinary or unusual use of the land. Liability under Rylands v Fletcher had not been established