Nuisance and Rylands v Fletcher Lecture

Just as tort law extends to cover more than personal injury, into property damage and economic harm, it has also developed a mechanism to deal with the ongoing annoyance that can arise as a result of certain land usage. This is known as the tort of private nuisance. A good preliminary definition can be found in Miller v Jackson.

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. There is no requirement that the claimant and defendant properties be adjoined - so a neighbour two doors down can be a defendant in a case of nuisance. Conversely, there is no need for the properties to be separate buildings, so claimant and defendant can live in flats in the same block. Nuisance does not have to be artificial - it can be naturally occurring, so encroaching branches can constitute nuisance, or a neighbour could plant a nursery of extremely smelly corpse flowers. As seen in Miller v Jackson, it can cover activities which take place on a piece of land. A factory might pour acrid smoke into a residential area - but it should also be noted that private nuisance does not just protect residential rights, but all land uses. A residence can, thus, cause nuisance to an industrial site.

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. Further details on the concepts of proprietary interests and beneficial interests can be found within property law resources.

The need for proprietary interest stems from Malone v Laskey.

For a brief period of time in the mid-90s, this requirement was removed, in the case of Khorasandijan v Bush [1993] QB 727. The claimant, an 18-year-old woman, was subjected to a campaign of harassment by a 23-year-old man. He threatened her with violence and behaved aggressively towards her, even spending time in prison for threatening to kill her. An injunction was obtained against the defendant on the basis of private nuisance. On the basis that it would be absurd to not extend the protection of private nuisance to the claimant on the basis of her lacking proprietary rights, this requirement was overturned, and the injunction remained in place.

This stance changed in 1997, however. It should be noted that the Protection from Harassment Act 1997 came into force, providing a non-nuisance basis for injunctive protection from Khorasandijan v Bush type behaviour. The proprietary right requirement was reinstated in Hunter v Canary Wharf [1997] AC 655. A number of residents living in the Canary Wharf area experienced interference with their television signals due to the construction of the 800-foot Canary Wharf Tower. Some of the claimants were homeowners and leaseholders, whilst some were family members, lodgers, and others who lacked a proprietary interest. The House of Lords reinstated the proprietary interest requirement of Malone v Laskey, although added an amendment that a spouse’s beneficial interest (another property law concept) conferred upon him or her a proprietary interest.

This means that, as in 1907, private nuisance remains a matter of property rights, rather than personal rights.

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, claimant sensitivity, nuisance duration, public benefit, and defendant malice.

Character of Neighbourhood

Character of neighbourhood refers to what might reasonably be expected of a particular area - so whilst it would be unreasonable for a factory to cause a lot of noise in the middle of an idyllic countryside setting, the same noise would likely be found reasonable if found in an industrial estate. Thus, the relative amplitude of a nuisance depends on its context. This principle can be found in Sturges v Bridgeman [1879] 11 Ch D 852.

The defendant ran a confectionary shop, and used a noisy pestle and mortar in his kitchen for the purpose of grinding up ingredients. A physician moved into the neighbouring property, and built a consulting room next to the noisy kitchen. The claimant brought an action in nuisance against the defendant, aiming for an injunction against the noise. The claim succeeded on the basis that the activity was unreasonable, given the character of the area. In giving his judgement Thesiger LJ provided the principle of neighbourhood consideration:

"…whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey;"
- Thesiger LJ, at 865.

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. So, if the subject of the complaint is noise or smell, then the defendant will be able to refer to the character of their neighbourhood as a demonstration of how their behaviour is not unreasonable. If the nuisance causes physical damage (such as acid discharge damaging a claimant’s trees, or cricket balls damaging paint and roof tiles), 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 [1865] 11 HL Cas 642. The claimant owned a manor house and some 1300 acres of land. This was situated nearby to the defendant’s copper smelting business. Discharge from the smelting process caused damage to greenery on the claimant’s land. The defendant argued that his business was located amongst a number of other heavy industrial processes, including an alkali processing plant, and that the claimant had purchased the property in the knowledge of this. The claim succeeded - neighbourhood character had no bearing on claims in tort of the nuisance of property damage.

Sensitivity of the Claimant

Whilst claimants will by definition be annoyed by a nuisance (else why would they bring a claim?), 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.

This can be argued to be a theoretical inconsistency within the tort of nuisance - the claimant who brings the case to court must have a personal (and thus subjective) proprietary interest, but in examining their claim the courts take an objective, rather than a subjective view of nuisance. This can perhaps be explained by reference to the fact that whilst the need for a proprietary interest is a personal hoop the claimant must jump through, it provides a convenient gatekeeping mechanism to prevent all-comers from lodging claims (and by extension, stops businesses from using nuisance as a way to stop competitors’ operations.)

The use of the reasonable person/ordinary land use test can be seen in Robinson v Kilvert [1889] 41 Ch D 88. The defendant ran a business which manufactured boxes. This process required that the basement of the defendant’s property was kept at a warm, dry temperature. The defendant let out the room above the basement to the claimant, a paper merchant, who stored his stock in the room. Due to the heat of the basement operation, the claimant’s stock was damaged, and he brought a claim in nuisance. The claim failed - it was held that the nuisance was not one which would affect the reasonable claimant, and it was only the claimant’s particular business which caused the nuisance to manifest.

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. So in the case of Robinson, if the room above the heated basement was uncomfortably warm at all times of the day so that an ordinary person wouldn’t have been able to spend their time there, then the claim would likely have succeeded.

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. So it might be that a nuisance prevents rugby from being played in a field - as long as the court holds that playing sport in the field constitutes ordinary use, then the claim will likely succeed.

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. So whilst loud trucks five days a week leaves an occupier with two days of peace, the fact that the nuisance reoccurs means it is actionable, since it will be regarded as continual for the purpose of nuisance. This is a practical principle - it wouldn’t be sensible to allow a defendant to point to brief periods of non-nuisance as a defence. At the same time, the law is usually only concerned with dealing with nuisances that will likely reoccur: a one-off music festival might annoy the neighbours, but there’s nothing for the law to do once it has been and gone forever. There have been rare exceptions to this rule, however, as in Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyds Rep 533. The defendant put on a firework display, during which some burning debris from the display landed on the claimant’s barge, setting it aflame. Despite the nuisance of burning debris only continuing for 20 minutes, the claim succeeded. This case should be considered an eccentricity, however - the judiciary even noted that the finding of nuisance was an attempt to avoid applying the Rylands doctrine (see Potter J’s judgement in this case, and the discussion of Rylands below.)

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 [1946] 1 All ER 489. The defendant installed faulty wiring on his property, which eventually caused a fire to break out which damaged the claimant’s property. Although the act of installing faulty wiring was a one-off, the ongoing threat of fire from that wiring was considered an ongoing state of affairs, and thus satisfied the test for nuisance.

It should be noted that temporary nuisances can still be considered continual - so a month-long music festival which goes on all night can be considered a nuisance. An example of both the continuance principle and of temporary nuisance can be seen in De Keyser’s Royal Hotel v Spicer Bros (1914) 30 TLR 257.

The defendants were using a noisy pile driver to complete a construction project. The claimants - hoteliers, had complaints from their guests that they could not sleep, and that after-dinner speakers could not be heard. The claimants sought an injunction against the defendant’s activity. The claim was successful - the interference was of an unreasonably nature, and its temporary nature was not obstacle to a finding of nuisance.

Public Benefit

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 conduct - a neighbour playing thrash metal loudly all day is doing little to benefit the public, but a hospital which is carrying out building works to create a new treatment wing is. The courts will generally hold that construction is of public benefit - after all, everywhere you’ve ever lived, and every shop or business you’ve ever used had to be built at some point!

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. Building a new library is great, but not if work continues 24/7 in a residential area without good reason.

Malice

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 [1936] 2 KB 468. The claimant was engaged in the (now banned) practice of fox fur farming. Silver foxes are particularly timid, and if disturbed whilst pregnant are especially prone to miscarriage. They are also prone to infanticide if they are disturbed whilst they have cubs. The defendant took issue with the claimant’s farm, on the grounds that he thought it devalued his neighbouring property. He, therefore, took to firing his shotgun regularly in order to disturb the claimant’s foxes. The claim succeeded - whilst it was ordinarily reasonably for a farmer to fire his shotgun on his land, and the claimant’s activity was out of the ordinary, the fact that the farmer’s actions were malicious rendered them unreasonable.

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.

Public Nuisance

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

Thus, the key to public nuisance is that a class of persons are affected by a nuisance (but not all of them, just a substantial proportion). This can be regarded as an extension of the ethos of private nuisance - just as tort law will seek to ensure an individual can enjoy their property in relative peace, the criminal law will seek to extend this protection to a group of people. This also recognises the fact that there will often be nuisances which affect more than one individual. Rather than several individual cases in nuisance, public nuisance deals with activities which are so anti-social in nature that they become criminal. Since criminal sanctions will do little to aid the individuals affected, a tort case can thus be appended to the criminal case so that individual claimants can seek compensation for their harm.

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.”

This doesn’t give us a direct number, however. This is because 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 [1991] 13 CR App R the organiser of a rave in a field was held criminally liable for public nuisance - the loud music and litter was held to have caused a public nuisance to local residents. It can, thus, be seen that a local community can constitute a class of people.

In R v Ong [2001] 1 Cr App R (S) 117 a betting scam was orchestrated in which the floodlights at a Premiership football ground were sabotaged so that they could be turned off via remote, causing an abandonment of the match. This meant that the defendant could profit from a rule of their betting syndicate which stipulated that the result of an abandoned match would be recorded as it stood at the point of abandonment (so if the bookie’s favoured team was winning, they could effectively end the match at will.) This was held to be a public nuisance to the spectators, who had their enjoyment of the match impaired. Thus, a group of people with a common interest can constitute a class of people.

A group of road users can be a class of people, as in Castle v St Augustine’s Links [1922] 38 TLR 615. Golf balls were regularly hit onto the road from a nearby course - constituting a public nuisance.

Even if the effect of a nuisance action is indirect, it can still affect a class of people. So in R v Lowrie [2005] 1 CR App R (S) 95 the defendant made a number of hoax calls to emergency services, thus diverting the services away from genuine cases. The community affected by this was held to constitute a class of people.

Smaller groups of people can be considered a class, as long as they have common characteristics. So in R v Johnson [1997] 1 WLR 367 a group of women who all lived in a similar area were subjected to obscene phone calls from the defendant. 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 [2006] 1 AC 469. The defendant sent racially abusive communications to over 500 individuals. A distinction was made between nuisances which affect communities as a whole, and those which affect several individuals. This should not be regarded as a rejection of the criminalisation of the conduct in the case at hand - indeed, the judiciary noted that statutory offences existed which covered such conduct (namely, the Malicious Communications Act 1988), and that this was the motivation for not finding public nuisance to have occurred.

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.

Nuisance Defences

Prescription

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. This is similar to the manner in which certain property rights come into existence. The logic is that a defendant can assume that there is nothing wrong with their activity if it has persisted for over 20 years. 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 (the case of the confectioner and the doctor discussed above). The defendant claimed that he had been operating his pestle and mortar for over 20 years, but this argument failed - the activity only took on the nature of being a nuisance when the doctor built his consulting room.

Statutory Authority

If a defendant’s activity is authorised by statute, then this will likely constitute a valid defence. This is based on the fact that statutes are the creation of Parliament, and the judiciary is remiss to usurp its authority. Certain statutes (such as the Civil Aviation Act 1982) will explicitly note that activity covered by them cannot give rise to a claim in nuisance. Others will simply authorise the activity - this will not form a barrier to using the statute as a defence. Notably, this covers the process of planning permission, meaning most authorised construction will be covered. 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 [1996] Ch 19. The defendant built a pig house with planning permission. The claimant brought a case in private nuisance on the basis that smells and noise coming from the pig house disturbed the guest house he had built close by. Nevertheless, the claim for nuisance succeeded since the activity of the pig house was held to be unreasonable.

Ineffective Defences

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. This is anomalous: there are few cases which can be said to have given rise to their own special tort.

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. So, in Miles v Forest Rock Granite Co (Leicestershire) Ltd (1918) 34 TLD 500, the defendant kept explosives on his land which then caused an explosion, causing rocks to be ‘freed’ from his land, causing damage.

This is particularly important for cases of fire - which naturally ‘escapes’ and does damage. So in LMS International v Styrene Packaging and Insulation Ltd [2005] EWHC 2065, the thing kept on the land was a hot wire for cutting polystyrene, but the thing that was caused to escape was fire.

It is worth noting the requirement for the active collection of the mischievous object - so naturally occurring objects will not be covered by Rylands. So if the rocks in Miles were simply knocked loose by a falling tree which happened to be on the land, then the claim would not have come under the Rylands doctrine.

Non-natural Use of Land

Non-natural use of land is largely context dependant. So, in Rickards v Lothian [1913] AC 263, it was held that water coming out of an overflow pipe onto the land was not unnatural. This was not a special use of the land, and there was nothing innately dangerous about the operation of the overflow pipe which made it dangerous to others.

What is natural and what is not is a matter of context, and thus has the definition of ‘natural’ can change over time. This can be seen in Musgrove v Pandelis [1919] 2 KB 43. A car was stored in a garage below the claimant’s rented property. One of the defendant’s employees spilled petrol whilst filling the car, which caught alight. The fire spread, damaging the claimant’s property. It was held that storing the car and refilling it in the garage was unnatural. Nowadays this would not satisfy the non-natural condition. The current working definition of “unnatural” can be seen in Transco plc v Stockport MBC [2004] 2 AC 1. A pipe managed by the defendant developed a leak, causing an embankment to collapse. This exposed a gas pipe, and so the claimant had to carry out emergency maintenance, at some cost. The claim, however, failed - the water pipe was not an unnatural use of the land. Non-natural use was described as “an exceptionally dangerous or mischievous thing in extraordinary or unusual circumstances”.

Likely Mischief

Likely mischief can be obvious (like keeping deadly bees) but can also include things which are not dangerous whilst contained, but become dangerous when released - so the water in the reservoir in Rylands was not dangerous whilst contained, but caused substantial damage when released. This can be seen in Crowhurst v Amersham Burial Board [1878] LR 4 Ex D 5. The defendant kept yew trees on his land. The branches of the trees hung into a neighbouring field, and were eaten by the claimant’s horse. The horse died as a result of eating the poisonous leaves.

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 [1994] 2 AC 264. The defendant stored tanning chemicals in drums. The claimant tested its water, and it emerged that the defendant’s chemicals had tainted it. The claim, however, failed - it was not foreseeable that the chemicals could taint the water supply.

It should be noted, however, that a defendant cannot take reasonable steps to prevent the escape to discharge their duty. If an object escapes, and the escape is foreseeable, then liability will be imposed, even if the defendant has attempted to prevent the escape.

Defences

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. For example, if it was only unusually heavy flooding which caused the reservoir to collapse in Rylands, then the claim would have likely failed.

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). This can be seen in the aforementioned Rickards v Lothian - flooding was caused by a mischievous third party who blocked a water outlet and then left a tap running. The defendant was, thus, able to avoid liability.

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.

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