Revision Hub / Module 4 · Land Torts

Nuisance Part II & Rylands v Fletcher

Lecture L15 Land-based torts Reading: Horsey & Rackley ch 15; Nolan & Oliphant ch 13

Snapshot

Part II covers defences in private nuisance (notably statutory authority and prescription, plus key non-defences); the remedies regime reset by Coventry v Lawrence [2014]; visual intrusion in Fearn v Tate Gallery [2023]; public nuisance, which admits personal-injury claims; and the rule in Rylands v Fletcher, now (after Transco [2003]) a sub-species of private nuisance for one-off escapes requiring foreseeable damage.

1. Defences in private nuisance

Once unreasonable interference is shown, the burden shifts to D to invoke a recognised defence. Most are narrow.

Statutory authority. Where Parliament has expressly or impliedly authorised the activity, no claim lies for its inevitable consequences.

Allen v Gulf Oil Refining [1981] AC 1001 (HL)

Facts: Residents complained of noise, vibration and smell from an oil refinery built under the Gulf Oil Refining Act 1965.
Holding: The Act impliedly authorised the inevitable nuisance from ordinary refinery operations; no remedy.
Why it matters: Modern test: the defence covers nuisance that is the inevitable consequence of statutorily authorised activity.

Statutory authority differs from mere planning permission, which does not convert unreasonable interference into reasonable (Barr v Biffa [2012]), though a permit that changes the locality's character may rebalance reasonableness.

Prescription. Twenty years of actionable interference without complaint creates a right to continue. The clock runs from when the activity became actionable against C, not when it began.

Sturges v Bridgman (1879) 11 Ch D 852

Facts: A confectioner's mortars had operated 20+ years before a neighbouring doctor built a consulting room where the noise first became actionable.
Holding: The clock ran only from when the activity became a nuisance against C; defence failed.
Why it matters: Prescription is hard to make out; "coming to the nuisance is no defence".

Act of a stranger / Act of God. A nuisance created by a trespasser absolves the occupier unless they "adopt" or "continue" it (Sedleigh-Denfield v O'Callaghan [1940]); extraordinary natural events absolve too (Nichols v Marsland (1876)). Both turn on reasonable foreseeability (cf. Goldman v Hargrave [1967]).

Consent / Necessity. Express or implied consent bars the action (Lyttelton Times v Warners [1907]). Genuine emergency action to prevent greater harm is a narrow defence (Greyvensteyn v Hattingh [1911]).

NOT defences. (i) "Coming to the nuisance" — Sturges; reaffirmed in Coventry v Lawrence [2014]. (ii) Utility of D's conduct (relevant only to remedy). (iii) Planning permission alone. Fearn [2023] adds that abnormally sensitive uses by C do not raise the standard — interference is measured against ordinary uses of similar land (cf. Robinson v Kilvert (1889)).

2. Remedies in private nuisance

Principal remedies are injunction and damages; abatement (self-help) survives but is disfavoured. Historically, the injunction was the default for proprietary infringement.

Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 (CA)

Facts: Vibrations and noise from D's electricity plant disturbed a public-house lessee.
Holding: Injunction granted. A.L. Smith LJ's "good working rule" for damages in lieu: (i) injury small; (ii) estimable in money; (iii) adequately compensated by small payment; (iv) injunction would be oppressive to D.
Why it matters: Cabined the discretion to refuse injunctions for over a century.

Injunctions can be partial: Kennaway v Thompson [1981] (motorboat-racing timetable rather than ban). The Supreme Court loosened the Shelfer straitjacket in Coventry.

Coventry v Lawrence [2014] UKSC 13

Facts: Residents complained of noise from a speedway/motocross track operating under planning permission.
Holding: Liability reaffirmed (planning permission and coming-to-nuisance are not defences); but the court has discretion to award damages in lieu — Shelfer is a guide, not a straitjacket. Public interest and planning permission are relevant factors in exercising that discretion.
Why it matters: Damages in lieu more readily available; may compensate loss of the right to enforce by injunction (Lord Neuberger); public benefit re-enters at the remedy stage.

Damages are compensatory. Amenity awards reflect diminution in use or rental value (Hunter v Canary Wharf [1997] — number of occupants does not multiply the award). They cover abatement costs (Network Rail v Williams [2018], knotweed), consequential damage to chattels (Halsey v Esso [1961]), and consequential economic loss (Andreae v Selfridge [1938]). Damage must be of a foreseeable type (Wagon Mound (No 2); Cambridge Water).

3. Fearn v Tate Gallery [2023] UKSC 4

Fearn v Tate Gallery Trustees [2023] UKSC 4

Facts: Owners of glass-walled Neo Bankside flats sued the Tate over its 360-degree viewing platform allowing visitors to look directly into the flats.
Holding: By 3:2, claim allowed. Visual intrusion can be actionable private nuisance. Test: did D's use substantially interfere with ordinary use/enjoyment of C's land, judged by ordinary uses of similar property in the locality? The viewing gallery was an exceptional, not ordinary, use.
Significance: Reaffirmed Hunter's property-based approach; rejected hostility to overlooking claims; what matters is whether D's use is common and ordinary, not whether C lives in a glass box.

4. Public nuisance

Public nuisance is a common-law crime (also Police, Crime, Sentencing and Courts Act 2022, s.78). A private claimant sues in tort only by showing special damage over and above the class.

Attorney General v PYA Quarries Ltd [1957] 2 QB 169 (CA)

Facts: Quarry blasting caused dust, vibration and stones across many homes; AG sought an injunction.
Holding: Injunction granted. A public nuisance is "an act or omission which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects" (Romer LJ); a "representative cross-section" suffices.
Why it matters: Establishes the "class of HM subjects" test marking the boundary with private nuisance.

Criminal limb. R v Rimmington; R v Goldstein [2005] UKHL 63: the offence requires actual or imminent injury to a class of the public; many discrete private wrongs (offensive mail to individuals) do not qualify.

Civil limb — special damage means damage different in kind or degree from the rest of the class.

Tate & Lyle Industries v Greater London Council [1983] 2 AC 509 (HL)

Facts: GLC ferry terminals caused Thames siltation, interfering with C's vessels and forcing costly dredging.
Holding: Public nuisance to the right of navigation; dredging costs were special damage over and above general inconvenience. (No private nuisance — C had no riparian rights.)
Why it matters: Canonical special-damage illustration; public nuisance protects rights of way/navigation.

Personal injury IS available in public nuisance — the key contrast with private nuisance after Hunter.

Corby Group Litigation v Corby BC [2008] EWCA Civ 463

Facts: Children alleged limb deformities from their mothers' exposure to toxic dust during the council's steelworks reclamation.
Holding: PI damages recoverable in public nuisance; Hunter concerned private nuisance only (Dyson LJ).
Why it matters: Public nuisance offers a PI route that private nuisance cannot.

Highway obstructions are paradigmatic (Castle v St Augustine's Links (1922), golf balls; Dymond v Pearce [1972], parked lorry); planning permission changing the locality's character may immunise port operations (Gillingham BC v Medway Dock [1993]). Defences mirror private nuisance, save that prescription is unavailable against the public.

5. The rule in Rylands v Fletcher

Rylands v Fletcher (1868) LR 3 HL 330

Facts: D's contractors built a reservoir; water escaped through disused mineshafts and flooded C's mine. D was personally without fault.
Holding: Strict liability. Blackburn J: one who "brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril ... answerable for all the damage which is the natural consequence of its escape." Lord Cairns (HL) added the use must be "non-natural".
Why it matters: First articulation of strict liability for escape of dangerous things from non-natural land use.

Modern formulation — five elements:

D brings/accumulates something onto land for D's own purposes — naturally occurring matter does not count (Giles v Walker (1890); Noble v Harrison [1926]).
The thing is likely to do mischief if it escapes — water, fire, gas, chemicals, explosives, etc.
D's use is non-natural / extraordinary, judged in context.
The thing escapes to a place outside D's occupation.
The escape causes foreseeable damage of a relevant type (Cambridge Water).

Read v J Lyons & Co [1947] AC 156 (HL)

Facts: A munitions inspector was injured by a shell exploding on D's wartime factory premises.
Holding: No liability — the rule requires an escape from D's land to a place outside it; none here. (Court also doubted wartime munitions was non-natural use.)
Why it matters: Locks the rule to inter-land geometry; supports the broader exclusion of PI from Rylands.

Cambridge Water v Eastern Counties Leather [1994] 2 AC 264 (HL)

Facts: Decades of small PCE-solvent spills at D's tannery percolated into groundwater, contaminating C's distant borehole and forcing relocation.
Holding: No liability — the type of damage was not reasonably foreseeable. Lord Goff: foreseeability of damage type is required (cf. Wagon Mound); industrial-chemical storage was a "classic example of non-natural use".
Why it matters: Aligns Rylands with nuisance on remoteness; rule is a sub-species of nuisance for one-off escapes.

The House of Lords in Transco declined to abolish the rule (as Australia did in Burnie Port Authority) or merge it with negligence.

Transco plc v Stockport MBC [2003] UKHL 61

Facts: A leak from a council-maintained water pipe saturated an embankment, exposing Transco's gas main.
Holding: No liability. (i) Rule survives as a sub-species of private nuisance for isolated escapes; (ii) "non-natural use" reformulated as extraordinary or unusual use with "exceptionally high risk"; (iii) ordinary water supply is not non-natural; (iv) no PI claims; rule protects interests in land only.
Why it matters: Modern restatement (Lord Bingham). Lord Hoffmann called it a "mouse" — useful only in narrow cases.

Escape of fire. Stannard (t/a Wyvern Tyres) v Gore [2012] EWCA Civ 1248: the rule applies only to escape of the thing brought, not to fire that spreads after it ignites. D's 3,000 stored tyres ignited from an electrical fault and fire spread to C; tyres had not escaped, fire had — and tyre storage was not non-natural anyway. Most fire cases now go in nuisance, negligence, or under the Fires Prevention (Metropolis) Act 1774.

Defences. Consent (Peters v Prince of Wales Theatre [1943]), common benefit, act of stranger (Perry v Kendricks [1956]), act of God (Nichols v Marsland), default of C (Ponting v Noakes [1894]), and statutory authority all apply.

Compensation Act 2006, s.3

Examiner-bait where environmental escape causes mesothelioma. Each "responsible person" who negligently exposed C to asbestos is liable for the whole damage — joint and several liability with contribution. Reverses Barker v Corus [2006] UKHL 20 and restores the Fairchild full-liability rule. Flag in any industrial-escape/mesothelioma scenario.

6. Application framework

Characterise the interference. Is it ongoing and amenity-affecting (private nuisance), public-rights-affecting (public nuisance), or a one-off escape of something dangerous (Rylands)? More than one route can run in parallel — plead in the alternative.
Standing & damage gateway. Private nuisance needs proprietary interest (Hunter) and excludes PI; public nuisance needs special damage and admits PI (Corby); Rylands needs interest in land (Transco) and excludes PI.
Liability test for whichever route applies. Private: substantial / unreasonable interference with locality, sensitivity, malice, duration factored in. Public: act / omission affecting reasonable comfort of a class of HM subjects (PYA Quarries) plus special damage. Rylands: the five-element test above with foreseeability of damage as final filter (Cambridge Water).
Defences. Statutory authority, prescription (private only), act of stranger, act of God, consent, necessity. Note non-defences: coming to nuisance, utility, planning permission alone.
Remedy. Default injunction; Coventry v Lawrence discretion to award damages in lieu (Shelfer factors as guide; planning permission and public benefit relevant). Damages = diminution / amenity / costs of abatement / consequential property and economic loss; PI only via public nuisance.

7. Common pitfalls

Forgetting that private nuisance does not give damages for personal injury after Hunter v Canary Wharf. If the facts include PI from polluting smoke or noise, route the claim through public nuisance (Corby) or negligence — not private nuisance.

Treating Coventry v Lawrence as though it abolished Shelfer. It did not. Shelfer's four factors remain a "good working rule"; Coventry simply confirms that the court has discretion and that planning permission and public benefit can pull the result toward damages in lieu.

Equating planning permission with statutory authority. They are different defences with different effects. Statutory authority can be a complete defence (Allen v Gulf Oil); a planning permit is at best evidence of a change in the character of the locality (Gillingham) and at worst no defence at all (Barr v Biffa; Coventry).

Pleading Rylands v Fletcher for personal-injury claims, ongoing emissions, or escapes of fire without scrutinising whether the "thing brought" actually escaped. After Read v Lyons, Transco and Stannard v Gore, the rule is narrow: tort to land, one-off escape, the dangerous thing itself must escape, foreseeable damage required.

8. Exam checklist

Characterised the interference and chosen private nuisance, public nuisance, or Rylands (or all three in alternative).
Confirmed standing: proprietary interest (private / Rylands) or special damage from a public-rights interference (public).
Stated the appropriate liability test and tied each contested element to authority.
Worked through any defence claimed by D, distinguishing statutory authority from mere planning permission.
Confirmed that "coming to the nuisance", utility and planning permission alone are not defences (Sturges; Coventry).
Considered Fearn if the facts involve visual intrusion or unusual sensitivity arguments.
For Rylands: applied the five elements, including foreseeability of damage (Cambridge Water) and "extraordinary use" (Transco).
Closed on remedy: default injunction; Coventry discretion to award damages in lieu via Shelfer factors; quantified damages on diminution / amenity / consequential basis.