By Law Teacher
6.1 Nuisance and Rylands v Fletcher – Introduction
Welcome to the first lesson of the sixth topic in this module guide – Nuisance and Rylands v Fletcher! The tort of private nuisance is the mechanism by which tort law can deal with annoyance caused by certain land usage. One factual scenario may give rise to possible actions under public or private nuisance, the rule in Rylands v Fletcher, or statutory nuisance. It may form the basis of a problem question and as such is important to understand.
At the end of this section, you should be comfortable in defining and applying the various rules relating to possible nuisance actions. The section begins by defining private nuisance, explaining the link the tort has with proprietary rights, explaining how to define unreasonable interference and discussing the requisite element of harm. The section then moves onto public nuisance, where defining the rules involves considering the type of ‘class’ that must be affected and the extra special damage requirement necessary to make a claim actionable. Finally, the rule in Rylands v Fletcher is considered, including the four elements of the rule which are addressed in turn.
Goals for this section:
- To be able to define and apply the rules relating to the tort of nuisance.
Objectives for this section:
- To understand how private nuisance is defined.
- To be able to define the necessary elements of an actionable claim in public nuisance.
- To understand the rule developed in the case of Rylands v Fletcher.
- To be able to discuss defences and justifications for the law in each of the types of nuisance claim discussed.
6.2 Nuisance and Rylands v Fletcher Lecture
A good preliminary definition for the tort of private nuisance can be found in Miller v Jackson  QB 966. Denning MR at 980 said: “The very essence of private nuisance […] is the unreasonable use of man of his land to the detriment of his neighbour.”
There are two primary features of nuisance – firstly, it involves the protection of the use of land (or property). Secondly, that protection is from unreasonable interference.
This can cover a wide range of neighbour-neighbour relationships.
Property Interests and Private Nuisance
Since nuisance deals with property rights, it is necessary that a claimant has a proprietary interest in the property which is interfered with. This might be as an owner, leaseholder or tenant. The need for proprietary interest stems from Malone v Laskey  2 KN 141.
For a brief period of time in the mid-90s, this requirement was removed, in the case of Khorasandijan v Bush  QB 727. This stance changed in 1997, and the proprietary right requirement was reinstated in Hunter v Canary Wharf  AC 655.
What Constitutes Unreasonable Interference?
The second key element of private nuisance is that of unreasonable interference – that is, use of land or property in a way which would foreseeably interfere with the claimant’s quiet enjoyment of their own land. There are five main factors which, to date, have been used to determine unreasonableness:
Character of Neighbourhood
Character of neighbourhood refers to what might reasonably be expected of a particular area. Thus, the relative amplitude of a nuisance depends on its context. This principle can be found in Sturges v Bridgeman  11 Ch D 852.
It should be noted that the factor of neighbourhood character only comes into play when the nuisance is one which causes inconvenience to the claimant, rather than physical damage. If the nuisance causes physical damage, then neighbourhood character will not form a valid defence. Physical damage remains an unreasonable nuisance, regardless of neighbourhood context. This principle can be seen in St Helen’s Smelting Co v Tippings  11 HL Cas 642.
Sensitivity of the Claimant
Whilst claimants will by definition be annoyed by a nuisance, this is not the test for private nuisance. Instead, the existence of nuisance will be judged against its effect on a reasonable person. If it is held that the claimant is simply unusually sensitive to a nuisance, or is using their property for an unusual purpose (which in turn is disrupted by the nuisance), then the nuisance will not be legally recognised.
The use of the reasonable person/ordinary land use test can be seen in Robinson v Kilvert  41 Ch D 88.
It should be noted that there exist circumstances in which the claimant’s annoyance will be because a particular activity of theirs is affected by a nuisance, but it is nonetheless one which would still interfere with the ordinary person.
It should also be noted that the relevant standard is that of ‘ordinary use’. This should not be taken as meaning that the disruption of a specific activity is not grounds for nuisance, as long as that activity is considered by the courts to constitute normal use.
Duration of Nuisance
There must be some continuity to the duration of the nuisance. ‘Continual’ is a distinct concept from ‘constant’ as far as private nuisance goes. At the same time, the law is usually only concerned with dealing with nuisances that will likely reoccur. There have been rare exceptions to this rule, however, as in Crown River Cruises v Kimbolton Fireworks  2 Lloyds Rep 533.
Although the courts will look for an ongoing nuisance, that ongoing nuisance can be instigated by a single act. This can be seen in Spicer v Smee  1 All ER 489.
It should be noted that temporary nuisances can still be considered continual – De Keyser’s Royal Hotel v Spicer Bros(1914) 30 TLR 257.
The courts will also consider the public benefit of the nuisance action – much as they will in an action for negligence. This is a key mechanism for distinguishing between reasonable and unreasonable. The courts will generally hold that construction is of public benefit.
Of course, defendants are rarely given free rein to annoy their neighbours; they will still have to act reasonably in carrying out their publicly beneficial activity.
If it is found that the defendant is acting with deliberate hostility or spite, this makes it far more likely that their actions will be found to be unreasonable. In a similar manner to the way in which the law will look favourably upon a claimant with ‘clean hands’, in nuisance cases it will treat defendants with ‘dirty hands’ less favourably. This can be seen in Hollywood Silver Fox Farm Ltd. v Emmett  2 KB 468.
Private Nuisance Must Cause Harm
Once it has been established that a claimant has a proprietary right, and the defendant’s actions are unreasonable, the claimant must demonstrate that there has been some harm from the defendant’s actions. Three types of recognised harm were laid down in Hunter v Canary Wharf (described above.)
- The first category is encroachment – where the defendant’s activity or land directly affects the claimant’s property. The classic scenario here will be where subsidence is caused in the claimant’s property, usually by tree or hedge roots from the defendant’s property.
- Secondly, where the defendant’s use of their land causes physical damage to the claimant’s property, as in St Helen’s Smelting Co v Tippings,discussed above.
- Thirdly, where there is an interference with the claimant’s enjoyment of their property. This category includes cases involving noise or odour. De Keyser provides an example of the former category.
Certain scenarios will present a combination of these harms, so Miller v Jackson(above) involved both property damage and the prevention of the claimants being able to safely use their garden.
There exists a second category of nuisance cases, distinct from private nuisance. This category of cases is called public nuisance. Public nuisance is first and foremost a matter of criminal law – a common law offence which a party can be cited for. However, if an individual can demonstrate that they, as an individual, have been especially affected by a public nuisance, then they can make a claim in tort.
A working definition for public nuisance can be found in Attorney General v PYA Quarries  2 QB 169. Romer LJ provided that “any nuisance is ‘public’ which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects. […] It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected for an injunction to issue.”
What Constitutes a ‘Class of People’?
A sufficiently large class of people is required before a public nuisance case can succeed. At a bare minimum, the affected group of people must be so large that, in the words of Lord Denning in Attorney General v PYA Quarries: “it would not be reasonable to expect one person to take proceedings […] to put a stop to it but that it should be taken on the responsibility of the community at large.”
Whether a class is large enough will depend on the facts of the case at hand. There are several examples of note, however:
- In R v Ruffel  13 CR a local community could constitute a class of people.
- In R v Ong  1 Cr App R (S) 117 a group of people with a common interest could constitute a class of people.
- A group of road users can be a class of people, as in Castle v St Augustine’s Links  38 TLR 615.
Even if the effect of a nuisance action is indirect, it can still affect a class of people, R v Lowrie  1 CR App R (S) 95.
Smaller groups of people can be considered a class, as long as they have common characteristics, R v Johnson  1 WLR 367. It should be noted, however, that the courts appear to have started to shy away from applying public nuisance to cases involving numerous, but separate victims, as in R v Rimmington  1 AC 469.
The Special Damage Requirement
In order for a claim in tort to be made, the claimant must show that they have suffered damage over and above the class of people affected by the public nuisance. This effectively prevents all of those affected by a public nuisance from bringing a claim. Damage can be personal injury, property damage, economic loss, or just discomfort or inconvenience. This will purely be a matter of the facts at hand, since whether a claimant is especially affected by a nuisance will depend on the extent to which the general class of persons is affected.
The defence of prescription, which only applies to private nuisance is a claim that a defendant has acquired a right to cause the relevant nuisance because they have done so for over 20 years without interruption.
It is essential to note that the start of this 20-year period is not from the start of the activity itself, but from the start of the time that the activity became a nuisance. This can be seen in Sturges v Bridgman.
If a defendant’s activity is authorised by statute, then this will likely constitute a valid defence. However, an authorised activity which is undertaken in an unreasonable manner can still give rise to a claim in nuisance, as in Wheeler v JJ Saunders Ltd  Ch 19.
There are a number of arguments which are often put forward in nuisance cases which the courts usually regard as invalid. It is often argued by defendants that the claimant has ‘come to the nuisance’, and thus as the newcomer they shouldn’t be allowed to disrupt the activity of the established resident. This can be seen in Miller v Jackson and Sturges v Bridgman. The law will ignore this argument – an activity is a nuisance whether it starts the year before or the year after a claimant has moved to their property, and the right to quiet enjoyment remains static. Furthermore, this defence could effectively allow a defendant to singlehandedly make their area unappealing to newcomers.
It should also be noted that a defendant cannot successfully argue that their actions only constituted a nuisance when combined with the actions of another. The prime example here is a loud band – a single defendant musician cannot claim that their contribution in isolation was not a nuisance as a defence.
Rylands v Fletcher
There also exists a nuisance-like tort created by the case of Rylands v Fletcher  LR 3 HL 330. This is anomalous: there are few cases which can be said to have given rise to their own special tort. The rule is states as being that “the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at this peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”
It is important to note that there now exists a comprehensive body of tort law to deal with the situations originally covered by Rylands. Whilst it originally covered personal injury, it is now only relevant in cases of property damage or harm to proprietary interests. Whilst it has not been overturned entirely, the courts dislike using the doctrine, and will seek to use other areas of tort law wherever possible.
The tort can be broken down into four elements – collecting and keeping on land, non-natural use of land, likely mischief, and escape and harm.
Collecting and Keeping on Land
Collecting and keeping on land refers not only to an innately mischievous thing (like water or deadly bees), but also things which, if kept on a piece of land, might cause something else to escape, Miles v Forest Rock Granite Co (Leicestershire) Ltd(1918) 34 TLD 500.
This is particularly important for cases of fire – which naturally ‘escapes’ and does damage, LMS International v Styrene Packaging and Insulation Ltd  EWHC 2065.
It is worth noting the requirement for the active collection of the mischievous object – so naturally occurring objects will not be covered by Rylands.
Non-natural Use of Land
Non-natural use of land is largely context dependant, Rickards v Lothian  AC 263.
The definition of ‘natural’ can change over time. This can be seen in in Musgrove v Pandelis  2 KB 43. The current working definition of “unnatural” can be seen in Transco plc v Stockport MBC  2 AC 1. Non-natural use was described as “an exceptionally dangerous or mischievous thing in extraordinary or unusual circumstances”.
Likely mischiefcan be obvious but can also include things which are not dangerous whilst contained, but become dangerous when released. This can be seen in Crowhurst v Amersham Burial Board  LR 4 Ex D 5.
Escape and Harm
Simply, the requirement that there is an escape from the defendant’s land, and harm occurs. This used to be a matter of strict liability – escape and harm alone used to satisfy the test. It is now the case that the escape must be reasonably foreseeable (in line with the test in Wagon Mound (No 2).)This change was brought about by Cambridge Water Co. v Eastern Countries Leather plc  2 AC 264.
Both contributory negligence and consent can be used in Rylands cases – so if a claimant knowingly consents to the keeping of a mischievous thing, they will not be able to rely on Rylands.
Defendants can also advance an act of god/nature defence.
If the escape is caused by third-party action, then the claim against the defendant will fail (although an alternative claim against the third party in negligence will arise).
Finally, if a defendant’s actions are authorised by statute, this will usually form a defence to liability under Rylands, provided the defendant has acted in accordance with the relevant statutory requirements.
6.3 Nuisance and Rylands v Fletcher Lecture – Hands on Examples
Liz owns a house in the middle of a heavy agricultural area in North Wales. She lives with her husband, Jack, and additionally lets a family friend – Jenna – stay rent free in a converted cattle-shed. Liz has three different neighbours.
The first is Eastwards Farm, which farms pigs for the pork industry.
The second is Southfields Tree Farm, which grows softwood trees for the paper industry. It has been in business for nearly 30 years.
The third is Westwood Agricultural Products, another farm. It is currently in the process of building a new cattle farming centre, in order to meet the requirements of a new contract it has signed with the businesses it supplies. They need to begin production within the next two months to meet their quota, and so have employed builders to work throughout the night. They are scheduled to complete the project just in time.
Liz’s three neighbours are affecting her property is various ways:
When the wind is blowing from the right direction, the smell from the pig farm makes it almost unbearable to be outside of her house. Although Liz has spoken to the owners of Eastwards Farm, there is little they can do shy of closing the farm down.
Liz has recently built a garage on the south border of her property to house her vintage car collection. She notices one day that a large crack has formed in the garage wall. She refers the problem to a building inspector, who finds substantial subsistence in the land underneath the garage, caused by the root systems of the trees growing on the Southfields property. He notes that the garage is damaged beyond repair, since the foundations will need relaying. There is a significant risk that the garage will collapse otherwise.
The building works taking place on Westwood Agricultural Products’ property is keeping Jack awake all night. Liz is unaffected, since she takes a sleeping pill each night anyway.
One of Jenna’s hobbies is the breeding of African Land Snails. They are very sensitive to vibrations, and Jenna has noticed that the heavy machinery used in the building work nearby is negatively affecting their breeding patterns.
Liz comes to you, asking if it is possible in law to get her neighbours to stop their disruptive activity.
Advise Liz, concentrating on the tort of nuisance.
The tort of private nuisance requires a proprietary interest (as per Malone v Laskey  2 KN 141), unreasonable interference, and some sort of harm to the claimant.
The first potential nuisance is the smell from the pig-farm. Liz, as a landowner, satisfies this first criterion. Unreasonable interference will be judged through the evaluation of a number of factors. The most pertinent of these in the case of the pig farm will be the character of Liz’s neighbourhood. As per Sturges v Bridgeman  11 Ch D 852, whether an activity or behaviour is unreasonable will be judged as a matter of context. Unfortunately for her, she lives in an area which deals heavily in agriculture, and thus the activity of the pig farm can hardly be described as unreasonable. There also exists a subtle public benefit argument – food production needs to happen somewhere, and it would be unwieldly to set a precedent whereby pig farming could be forcibly discontinued if it took place near any residential property. The harm is clear, in the sense that Liz periodically loses the amenity of being able to comfortably be outside of her house. However, since the behaviour of the pig farm is not unreasonable, this claim will likely fail.
The second claim deals with the damage to Liz’s garage by the tree-farm next door. Again, Liz has a proprietary interest as a landowner. Whilst similar arguments can be employed regarding a tree farm as can be a pig farm, the neighbourhood character argument will fail, since as per St Helen’s Smelting Co v Tippings  11 HL Cas 642 it will not form a valid defence when the nuisance is property damage. Furthermore, whilst tree farming is a reasonable activity, it can be argued that it is being undertaken in an unreasonable manner, since it is causing subsidence in Liz’s property. Whilst Southfields might argue a prescription defence, this will be faulty, since the nuisance only started once Liz built the garage near the property line, so as in Sturges v Bridgeman 11 Ch D 852 the nuisance has only existed for a short amount of time. The harm is clear – encroachment onto Liz’s property by roots from the tree farm. Liz is likely to be able to recover for the damage to her garage, and obtain an injunction stopping the trees from being grown so close to her property.
The third claim is for the noise from the building site. The relevant claimant is Jack. Following Hunter v Canary Wharf  AC 655, his beneficial interest as a spouse of Liz makes him a viable claimant. Whilst the construction interference is only temporary, this will not form a barrier to a claim, as in De Keyser’s Royal Hotel v Spicer Bros(1914) 30 TLR 257. This case also forms a precedent of the courts finding all-night building to be an unreasonable activity. Whilst from Westwood’s perspective it needs to get the project finished in time, this hardly forms a valid explanation of their behaviour – after all, it is not Jack’s problem that the farm has put itself on a tight schedule. The harm is clearly loss of amenity, since Jack is prevented from sleeping. Since the behaviour is unreasonable, a claim for an injunction against all-night building is likely to be achievable.
The final harm is based around Jenna’s disrupted snail breeding. There are a number of obstacles to this claim. Firstly, Jenna has no proprietary interest – she is a lodger (as opposed to a tenant), and so lacks a proprietary interest (in line with the distinction made in Hunter v Canary Wharf). Secondly, it could be argued that Jenna has a particular sensitivity to the building operations of the neighbouring farm – breeding African Land Snails is not an ordinary use of land, as per Robinson v Kilvert  41 Ch D 88. This situation can also be likened to Hollywood Silver Fox Farm Ltd. v Emmett  2 KB 468 – but without the case-determining malice on the part of the defendant. This particular claim will likely fail.