Summary
Summary Public Nuisance, Private Nuisance, and Rylands v Fletcher
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Topic 13 of the tort law module. Used by a 1:1(1st) student.
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Liability in nuisance and under the rule in Rylands v FletcherLiability for nuisance and under the rule in Rylands v Fletcher: Summary
Public nuisance
1. Public nuisance was a crime at common law. It has been remodelled as a
statutory crime, but the common law definition of public nuisance remains
applicable to liability in tort: “A person is guilty of a public nuisance, who (a) does
an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of
the act or omission is to endanger the life, health, property, […] or comfort of the
public, or to obstruct the public in the exercise or enjoyment of rights common to
all Her Majesty’s subjects.”
2. The Attorney-General and (under the Local Government Act 1972 s.222)
a local authority have standing to seek an injunction to restrain a public nuisance.
3. Any person who suffers special damage as the result of a public nuisance for
which the defendant is responsible may sue D in tort, seeking an injunction and
damages. To establish special damage “[the claimant must show that he or she]
has suffered some particular or special loss over and above the ordinary
inconvenience suffered by the public at large” (Rose v Miles). Damages for
personal injuries are recoverable (Corby Group Litigation case)
Private nuisance
4. “Private nuisance is an unlawful interference with a person’s use or enjoyment
of land, or some right over, or in connection with it.”
5. Who may sue? Interference with a servitude: the person(s) in whom the legal
right is vested; other private nuisances: the person(s) with a legal interest in the
land affected (Hunter v Canary Wharf Ltd).
6. When is an interference unlawful?
Interferences will usually involve emanations from D’s land on to C’s land (eg
smell, noise) but private nuisance can extend beyond emanations to include
intrusive viewing (as distinct from general overlooking):
Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4. The principles
governing whether an interference is unlawful:
(1) “[T]he first question which the court must ask is whether the defendant’s use
of land has caused a substantial interference with the ordinary use of the
claimant’s land.” (per Lord Leggatt (at [21]).
(2) “[E]ven where the defendant’s activity substantially interferes with the
ordinary use and enjoyment of the claimant’s land, it will not give rise to liability
if the activity is itself no more than an ordinary use of the defendant’s own land.”
(per Lord Leggatt (at [27]).
Where an interference has been held to be unlawful in the past, it has commonly
been referred to as “unreasonable user”. “Unreasonableness” is not in itself the
test, but may be relevant on the facts (see below).
“Material” or “substantial damage” is normally sufficient to establish that D’s user
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,is unlawful. But not damage that is caused by an ordinary use of D’s land because
C’s property is abnormally sensitive (Robinson v Kilvert) (no interference with
ordinary use)
Where there is no damage to property but there is an interference with comfort
and convenience, the court must again apply the Fearn principles:
(a) Has there been a substantial interference with ordinary use? The court may
take account of the intensity of the effect on the claimant, including such factors
as the duration, frequency and timing of the interference; the nature of the
locality (St Helens Smelting Co v Tipping)
(b) Does D’s conduct go beyond ordinary use?
Bamford v Turnley, per Bramwell B:
“those acts necessary for the common and ordinary use and occupation of land
and houses may be done, if conveniently done, without submitting those who do
them to an action.”
Ordinary uses: building on one’s own land (Hunter); noise generated by the
ordinary use of the home (Southwark LBC v Tanner)
Not ordinary uses:
Viewing gallery at the Tate Gallery (Fearn) (it made no difference to liability that
C’s building could be said to be abnormally sensitive).
Interferences arising out of D’s unreasonable conduct (Christie v Davey;
Hollywood Silver Fox Farm Ltd v Emmett)
NB There can no liability if D has the specific legal right to act as he or she did
(Mayor of Bradford v Pickles).
7. It is unclear whether there has to be a continuing interference and the
nuisance has to arise from user by the defendant of land occupied by him or her.
8. Who can be sued?
(a) the creator of the nuisance. The creator of a nuisance will not be liable in
damages where the damage is not reasonably foreseeable (Northumbrian Water
Ltd v Sir Robert McAlpine Ltd).
(b) the occupier of the land from which the nuisance emanates is liable if (i) they
authorise the creation of the nuisance; (ii) the nuisance is created by an
employee or (where there is a non-delegable duty) an independent contractor; or
(iv) the occupier continues or adopts the nuisance. An occupier of land ‘continues’
a nuisance if, with knowledge or presumed knowledge of its existence, he fails to
take any reasonable means to bring it to an end, though with ample time to do
so” (Sedleigh-Denfield v O’Callaghan). This rule applies where the nuisance is
created by a trespasser (Sedleigh-Denfield), a licensee (Cocking v Eacott) or
nature (Goldman v Hargrave) or the occupier’s predecessor in title. There is a
“measured duty of care” in that the resources of D to deal with the problem, in a
broad sense) can be taken into account. (Liability here also arises in negligence,
on the same principles.)
9. Defences.
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, Recognised defences include: (i) Twenty years’ prescription; (ii) statutory
authority (the grant of planning permission does not give rise to this defence
(Coventry v Lawrence); (iii) unforeseeable act of a stranger; (iv) act of God.
Defences that have not been recognised include the following: (i) C has come to
the nuisance (Miller v Jackson); but such a defence may now be recognised in
specific circumstances where C changes the use of his or her land after the
nuisance has started (obiter dicta in Coventry v Lawrence); (ii) D’s activity is
useful; (iii) the nuisance is due to many (Lambton v Mellish).
10. Remedies. Injunction and damages.
Rylands v Fletcher liability
11. An occupier of land who can show that another occupier of land has (a)
brought or kept on his land (b) an exceptionally dangerous or mischievous thing
(c) in extraordinary or unusual circumstances is in my opinion entitled to recover
compensation from that occupier for (d) any damage caused to his property
interest by (e) the escape of that thing, (f) subject to defences of act of God or of
a stranger, (g) without the need to prove negligence (Based on Lord Bingham in
Transco)
12. The damage has to be foreseeable if there is an escape; the escape itself
need not be foreseeable (Cambridge Water).
13. Recognised defences include: (i) Consent; (ii) Statutory authority; (iii)
unforeseeable act of a stranger; (iv) act of God.
A. Introduction
B. Public nuisance
(1) As a criminal offence
Common law criminal offence, codified for criminal law purposes in recent statute. Tort
of public nuisance still exists.
R v Rimmington; R v Goldstein [2005] UKHL 63.
Lord Bingham (at paras [10], [36]) and Lord Rodger (at para. [45]) approved the
definition in Archbold, Criminal Pleading, Evidence and Practice, 2005 edition, para. 31-
40:
“A person is guilty of a public nuisance, who (a) does an act not warranted by law, or (b)
omits to discharge a legal duty, if the effect of the act or omission is to endanger the life,
health, property, […] or comfort of the public, or to obstruct the public in the exercise or
enjoyment of rights common to all Her Majesty’s subjects.” All of the public are not
relevant in this definition, however.
Cf. Winfield and Jolowicz on Tort (20th ed, 2020, p.425):
“A public…nuisance is one which materially affects the comfort and convenience of life of
a class of the public who come within the sphere or neighbourhood of its operation. The
question whether the number of persons affected is sufficient to constitute a class is one
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