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2.1 Private Nuisance, Public Nuisance

Tort Law (Queen Mary)

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Private Nuisance:

 Definition: ‘an unlawful interference with a person’s use or enjoyment of his land, or some right over, or in
connection with, that land’: Read v Lyons [1945] (per Scott LJ)

ELEMENT 1: PROVING AN INTERFERENCE

A. Element 1: Can C prove an interference?

1. Has there been an interference that could potentially trigger nuisance?

a. What types of interference trigger nuisance?

Three potential types: Hunter v Canary wharf [1997] per Lord Lloyd

b. It must an actionable ‘interference’ (and the type of damage recoverable)

A tort against land, not a tort for protecting essentially personal interests: Hunter v Canary Wharf, supra (Lords Lloyd and
Hoffmann)

Subtle distinctions between physical damage and amenity nuisances

 The smell is not going to cause physical damage to the property, so what one has to prove is that there is
reduction in the value of the Land (amenity Nuisance) – how you would do this is to show a reduction in the
capital value or rental value of the Land (i.e. need re-estate evidence) per Hunter v Canary Wharf

The status of personal injury damages?

 Personal injury cannot be claimed on its own one has to suffer a personal injury in addition to a reduction in
value of Land. (post hunter v Canary Wharf)
 No recovery for pure relational economic loss

The status of chattel damage?

 Hunter v canary Wharf seems to suggest that chattel damage is recoverable, if it’s consequential on property
damage, i.e. you need to prove some damage to the Land and then you tag on your chattel damage.

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Lord Hoffman gave the example, that if a claimant land is flooded because the defendant let the water flood it, and as a
result the Cattle are killed then Cattle could be recovered for as they are chattels (tag on chattel damage).

Halsey v Esso Petroleum [1961]

o Mr Halsey Lived next door to Esso depot and this was used for both processing and distribution of oil, the Esso
depot had to massive chimney which reaslsed abnoxtion fumes, they condensed and fell on Mr Halsey property
and it messed up the paint work on his car and also affected the clothes that he left out to dry. This was seen as
chattel damage. The court said that nuisance succeeded their and he could recover. (These days you would
need to show or attach this chattel damage to a reduction in the value or rental value of the land. (you need to
have property valuations done)

c. The interference must not be trivial

 ‘Trifling nuisances have never been actionable’, per Southwark LBC v Tanner [2001] (Lord Millett) (i.e.
mere inconvenience is not enough)

Numerical calculations:

Watson v Croft Promo-Sport Ltd [2009 (CA) (noise nuisance)

o Promo sport operated a race track which run 200 days a year, according to the evidence on 140 of those days
there was a high level of noise coming from the venue. The Watson lived very close (300 meters) by and were
frustrated about the noise and sued the Croft promo sport. They were prepared to accept 20 days of high level
nuisance. It went up to the court of appeal as to whether you can impose such a threshold on a defendant.
o The court of appeal held that there was a Nuisance here and injunction was awarded to stop this track over a
certain number of days. The court felt that the correct threshold of noise was 40 days and anything above that
was a nuisance for which an injunction would be awarded.

Note: since then the court said it is not right to impose a certain threshold, they said there is no set numerical
threshold (2012) see Barr v Biffa.

 There is ... no precedent for requiring claimants to specify a precise limit of acceptable smell,…They
were entitled to have their cases assessed by the same standards, and not by reference to an arbitrary
numerical test set by the judge.

d. The interference must affect a ‘right’ of the claimant

 right’ to television reception

Bridlington v Yorkshire [1965]

o The defendant was Yorkshire electricity broad, who built high tension electricity capable in England, according
they emitted some electric magnetic interference, which affected residents TV reception. This went to the court
as to whether it was a private nuisance.
o It was held that there was no private nuisance here, the reason he gave was that this right to watch TV, was
recreational activity and it is not part of peaceable use and enjoyment of the premises that it could be regard as
nuisance. (Buckley LJ)

Hunter v Canary Wharf

o This case arose out of the building of the Canary Wharf tower in Isle of Dogs. This was 250 Meters high, once it
was built it disrupted the TV Signal in crystal palace, this caused problems that lived in lime house and
Shadwell, there TV Signals in these households were disrupted or non-existence. This was brought as a group
claim, it went to the house of lord as to whether this was a nuisance. The ratio in this case was actually
concerned about standing, i.e. who sue for these disruption must have possessory interest.
o It was held by a 3:2 majority that a TV Signal reception could be protected in private nuisance in the modern
era. (Whatever they say about this is only dicta). They said that this was due to three reasons:
1. Unlike Bridlington they did not regard TV Viewing as pure recreational, the
world had moved on. They said that it’s an educational and a social purpose.
Evidence was given to the court that the average person watches 24 hrs. Of

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TV a week. As a result anything that interfered with this must be considered

to a serious interference with the enjoyment of the Land. They said that
anything which was said in Bridlington should be overruled.

 ‘Right’ to a view: (not protectable in private Nuisance, not a property right) – however you can sue for
interruption to your light. Also if you are confronted with upsetting sites on your neighbour’s property then you
can sue, these are caveats to the general rule.

e. The interference must generally emanate from the defendant neighbour’s land

Rule: A Nuisance generally arises from something emanating from the defendants land. (You need show that something
came from the defendant’s land that interfered with use and enjoyment of your land. These things that emanate could be
electromagnetic wave, smell, fire etc…

Hunter v Canary Wharf, Lord Goff:

o The issue in hunter v Canary Wharf is that nothing emanated from the building it was just there. It was just in the
pathway of the TV signal. Could this be a private nuisance, it was held in hunter v Canary wharf, that No it can’t if
it does not emanated from the defendants land. (dicta)- They said that there was no emanation in this case the
building was just there. Just because a building get in the way that prevent something does not mean that it’s
emanating from the Land.

However,

Bank of New Zealand v Greenwood [1984] 1 NZLR 525

o In this case the defendant had built a glass roof and because of the angle of the glass roof, light reflected to the
claimant premises which blinded them and they could not look in that direction. They sued in private nuisance, it
was held that this was a private nuisance and he was instructed to change or alter it. The house of lord said that
this was not like the canary wharf tower something did emanate from, these were the light rays that came from
the defendant land, and the house of Lord in hunter approved this case.

The exceptional ‘rare cases’

Thompson v Costaki [1956]

o This was a case in which the defendant had a brothel and the claimant lived next door. The claimant objected to
the site of prostitutes coming with clients. He sued in private nuisance,
o It was held in this case that private nuisance should succeeded. There was nothing that was emanating from
the defendant land, it was all taking place on his own land, yet the house of Lord said that this was an
exceptional rare case.

f. The interference must be reasonably foreseeable (i.e. damage)

 Old view — that the defendant was strictly liable in nuisance, even when he was not in a position to know of it
or to remedy it: Ballard v Tomlinson (1885)

Modern view: the interference with the claimant’s enjoyment must have been reasonably foreseeable

 Cambridge Water v Counties Leather plc [1994]: (modern Law)

o The defendant, Counties Leather made leather and they used a solvent which degreased the fat
from the hide to make leather good. This solvent was used every day and bit of these fell on the
floor. Unfortionely it went through tiny cracks in the concrete floor and unknown to the
defendant, there was an aqua fill running underneath these premise, this solvent was going
through soil and into the aqua fill. (They had no clue). This solvent made it 17 miles into Cambridge
water which was going to be expanded and used to provide water for those who lived in
Cambridge. This was then found to be contaminated water and had to be taken off grid and
cleaned. Cambridge water sued the counties in private nuisance.
o It went to the house of Lord, they had no idea as to what the solvent had or could have done, or
knew of the aqua fill below its premises. So the court said that Cambridge water could not

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succeed in private nuisance, the reason for this, was that now the modern law the defendant
must know or reasonable foresee the damage that it might cause a private nuisance, (the
defendant in this case knew nothing)

ELEMENT 2: AN UNREASONABLE USER

B. Element 2: Can C prove an unreasonable user?

1. Distinguish unreasonable user and using unreasonably

 General rule: ‘if the user is not reasonable, the defendant will be liable, even though he may have exercised
reasonable care and skill to avoid it.’(not the same as negligence)

Balancing treatment required, under physical damage nuisance compared with amenity

St Helen’s Smelting v Tipping:

o In this case St Helen’s run a cooper smelting company, Mr Tipping owed a large estate in which he grew
several fruity trees, Unfortionely the St Helen’s factory released sulphuric acid from its chimney and as a result
this caused acid rain, which landing on his trees. Mr tipping was not seeking damage but rather he was seeking
an injunction to shut down the factory.
o It was held by the house of Lord, that there was private nuisance and that injunction would be put in order
to close down the factory. The unreasonable user element, was in favour of Mr Tipping as it caused physical
damage on his land.

Ellison v Ministry of Defence [1997] (no longer the law that physical damage is more when considering the balancing of
unreasonable user.

o In this case the Ministry of defence had big fuel tanks on an airfield, which the Mod Owned. As a result of
building these fuel tank, a lot of soil was pushed to one side. Then a huge rain storm occurred and this poured
from across the air field in to the property of Ellison who had a manufacturing business. This cause significant
damage to the land and was said that this rain was pushing carvans from their places. They sue the MOD for
them causing these re-element of the landscape which resulted in the flood that cause the damage on their
property.
o It was held by the court of appeal that there was no private nuisance, the court said that the MoD Building
these fuel tank was a reasonable use of their Land and the fact that there was physical damage to the
claimant land did not he tip the balance in favour of th claimant. There was also argument of national security.
(this case shows That St Helens should not be taken literally)

A balancing exercise?

 To determine reasonable user, the court must balance the right of the defendant to use and enjoy his land as
he wishes, against the interference to the claimant’s enjoyment of his land

The factors which the court must balance are derived principally from Pollock BC in Bamford v Turnley (1862)

Consider the factors that must be balanced

Factor 1: Locality of the nuisance

 Relevance – ‘the character of the neighbourhood’: what that means is that louder, smellier that
neighbourhood is, the more unlikely you can prove private nuisance, as the area is already smelly or busy and
thus loud.

Murdoch v Glacier Metal [1998]

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o In this case Glacier run a factory and at night the drone of the factory affected the resident around. The
Murdoch sued for private nuisance as their sleep was getting disrupted every night. They argued that noise
exceed that of the world health organisation recommended noise level for passive sleep.
o It was held by the court of appeal said that there was no nuisance here, the two reasons given: the court said
that the locality was already nosey as there was a busy motorway behind the factory, which also generated
some noise at night. (There said that this was large industrial area). The second key reason was there was no
complaints made by other residents in the area, to which the court of appeal could have regard.

The effect of D obtaining planning permission —

 ‘the mere fact that the activity which is said to give rise to the nuisance has the benefit of a planning permission is
normally of no assistance to the defendant in a claim brought by a neighbour who contends that the activity
cause a nuisance to her land in the form of noise or other loss of amenity’: per Coventry v Lawrence [2014] (Lord
Neuberger)-

(Not an outright defence if they have a planning permission)- would need to be balanced, with other factors such as
duration.

Coventry v Lawrence [2014]

o This was a case which concerned a speed way circuit in which a planning permission was given to turn it into a
motor way circuit. Mrs Lawrence bought a house in 2002 in the same year, it was almost a kilometre a way. In
2008 Mrs Lawrence sued for private nuisance, and the wanted either damages or injunction.
o It was held by the Supreme Court that this was a private nuisance by the noise being generated, for the
present purposes the fact that the speed way operator had planning permission was not an outright defence for
private nuisance. The second point, is that having a planning permission is relevant as to whether a nuisance is
created, but it’s more relevant with respect to the remedy that would be awarded.

Gillingham BC v Medway Dock: (LJ Barkley) (planning permission still relevant)

o In this case there was a disused navel block, the council decided to convert it to a commercial port. The planning
permission. The realised that if this port did not operate 24 hrs a day then it would not make a profit, so they
gave permission for it to operate for 24 hrs a day. This resulted in a lot of noise when loading and unloading at
night, the neighbouring was affected. They sued for private nuisance.
o The court held that there was no private nuisance here and that the planning permission cannot be an outright
defence (approved by the SC in Coventry), the second point he made, and the change in planning permission had
changed the character of the neighbourhood. They neighbourhood and the locality had to be considered in light
of that changed neighbourhood (it was seen as a noisy area)

Factor 2: Abnormal sensitivity of the claimant

 The rule: is that if a claimants is abnormally supsecitbale to inconvenient, due to what the defendant is doing,
they he must show that a property owner of ordinary sensitivity claimant would have suffered some property
damage. Once that is proven then the abnormal sensitive claimant can claim all the damage suffered

McKinnon Industries Ltd v Walker [1951] (Canadian case)

o The defendant run a manufacturing business, in which abnoxitious fumes went to the claimant, who had very
valuable orchids as part of her nursery business. The claimant sued in private nuisance, and the court held that
this was a private nuisance, the reason being that these abnoxtion fume would have affected ordinary plants of
ordinary susceptibility, she could claim all of her loss.

Compare:

Robinson v Kilvert [1889]

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o The defendant run a manufacturing business in the basement of the building and on the first floor was, he
manufacture and distributed paper products. These were extremely light and sensitive paper product. The heat
came from the basement and it damage and in destroyed these paper product. The claimant sued in private
nuisance.
o It was held that there was no private nuisance, the reason for this was that this level of Heat would not have
affected reasonable ordinary paper and therefore the claimant could not succeeded.

However, the modern treatment of this factor may differ: as it might not be seen as foreseeable.

Network Rail v Morris:

o The claimant had a studio and there was no issue until network rail had change it signalling system. Once that
happened Mr Morris had a significant amount of Noise interference with his amplifier, which meant that he lost
customers. He sued Network rail in private nuisance.
o It was held by the court of appeal that there could be no nuisance here, the three reason was given:
1. This interference was unforeseeable and they said that no expert that was willing to say that there was
an electrical interference 80meters away from the signal box (something less than that was consider to
be yes).
2. The second reason there was no evidence of other complaints about interference.
3. The third reason given by the court of appeal was that this was an abnormally sensitive claimant, he
had several sensitive equipment, and an abnormally sensitive claimant would not be foreseeable in
modern time. (Go back to element one).

Factor 3: Duration of the defendant’s interference

Relevance – what if a temporary or a one-off interference?

 Old law: importance of a continuing ‘state of affairs’ that gave raise to private nuisance: (a one of interference
was viewed as not private nuisance)

British Celanese Ltd v Hunt [1969]

o The defendant made electric strips, they put these strips in a great mound at the back of their factory in the
open. There was a strong wind that took these electric strips and they blew around and went on to a power
station and it blew the power station (i.e. power failure). British Celanese suffered some property damage from
the power station. (this happened twice) as a result, They sued in private nuisance,
o This was held to be a private nuisance as this was a continuing state of affairs, the mound was asked to be
secured so that it did not happen but even though it happened twice it was seen as a continuing state of affairs

You can have a one off or short interference:

Crown River Cruises Ltd v Kimbolton Fireworks Ltd (1996);

o This case concerned a festival that had fireworks taking place in themes, it went on for about 10/15 minutes. One
of the fire work fell into crown river cruise boat. The boat was destroyed as a result. They sued for private
nuisance.
o It was held that this was a private nuisance even though it did not last that long, the reason given by the court
was that yes it was for a short duration 10/15 minutes but it was highly dangerous activity, which can tip this in
favour of an unreasonable user.

(Note the short the period the less likely it would be a private nuisance, but it’s not actually necessary)

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Factor 4: whether the defendant’s activity has a public benefit, i.e. economic, or social utility (albeit of low weight)

 Not an absolute defence: cannot be argued that the defendant’s user is reasonable, because the public interest
‘trumps’ the damage to the claimant: per Miller v Jackson [1977]

The court might consider or take into account ECHR article 8(2) - i.e. national security

 Dennis v Ministry of Defence [2003] (QB)

o The claimant in this case was Mr and Mrs Dennis, they owed this very large estate. This was right next
door to the RAF Army air base. These planes were used for training and they were flying in low altitude.
This was very noisy aircraft. Mrs Dennis sued in private nuisance, they wanted either an injunction to
prevent flying or even ask for them to relocate or damage.
o It was held that there was a private nuisance, they said that they had suffered a sustained noise. The
second point was there was a huge public benefit, for the defence of realm, and it was huge to relocate.
The court said that this could not be an outright defence. The third point was that the Mod had recourse to S.8 (2) that the
use of their land was in the interest of national security, which would be relevant to the remedy awarded. The remedy that
was awarded was 950,000 for interference and no injunction.

Factor 5 whether the defendant was motivated by malice

 The rule: where there is malice that could tip the balance in favour of the unreasonable user but it won’t
necessary do so.

Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468

o The Hollywood silver fox farm, bread foxes and Mr Emmett living next door, objected to what they were doing.
And He took to firing his gun close to the cannel in which the foxes were bread. He Knew that if foxes were
agitated during breading they would eat their young, this is what happened. The Farm sued Mr Emmett in private
nuisance.
o It was an actionable private nuisance, they said that this was an abnormally sensitive claimant here, that fact
the foxes ate there young was a peculiar suspeciablity. (Would this sound have affected other animals perhaps
not)? The second point was that this was Malice intent which tipped the balance in favour of the unreasonable
user (when weighed against the other balance)

Does C have a capacity to sue in private nuisance?

Current restrictive view per majority in Hunter v Canary Wharf:

Rule: Those that can sue are those with a proprietary or possessory interest in the land which is affected.

 This cover those who own the land, people who rent (i.e. tenants, licensee), also trespassers. Those who are
simply spouses of children, who are not in the rent agreement or own the land cannot bring a claim, (this was
the ratio in hunter v Canary Wharf) – the group claim went down as a result. (4:1)

The old view endorsed: by Hunter

Malone v Laskey [1907]

o The claimant lived in part of a pub, the premise above it. The defendant operated this very large machine, next
door the machine caused real vibration. As a result something fell from the wall and hit Mrs Malone head, the
problem was that she lived there with her husband, but he was the licensee, (his name was on it). She tried to
sue but it was said that she had not standing to sue, as she did not have a proprietary or possessory interest
in the land.

Hunter v Canary Wharf Ltd [1996] CA)-

o In the court of appeal they said that a person who has a substantial link to the land can sue. The other issue in
this case or other group action was the dust emanating from the building of the lime house tunnel. The court
of appeal said that was fine they all had a substianal link to the land. But when it went to the house of Lord,
the majority held that what you need is a proprietary or possessory right to the land.

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‘Four reasons why HL majority (Lord Cooke dissenting) overruled CA’s wider view:

1. They said that private nuisance is a property base tort, meant to protect your property interest and thus the
standing rule must be reflect this of this.
2. If large group action were possible, this would have a chilling effect on developers, who are building multi-storey
building. (policy reasons)
3. Mr Khorasandjian had other redress, under the Harassment act 1997

‘Several anomalies in English law of private nuisance as a result

McKenna v British Aluminium [2003] (per Neuberger MR)

o ‘’The restrictive nature of the standing rule may infringe on article 6 ECHR’’

Pemberton v Southwark BC [2000] (squatter allowed)

o Mrs Pemberton was a squatter and she had lived in these premises for several years (i.e. 5 years). There was
a cockroach infestation in her the house and she sued the council in private nuisance. The case went to the
court of appeal as to whether she had standing to sue in light of hunter v canary wharf.
o The court of appeal held that she did have the standing to sue, as her squatting for 5 years amounted to a
possessory interest.

Does D have the capacity to be sued in private nuisance?

1. Identify the type of defendant

Page Motors v Epsom BC (1982)

o In this case the Epson borough council allowed a gypsy community to be established on some of the council
land. The council tolerated their present on the land, the council proved this Gypsy community with rubbish
bins and also a water supply. Page Motor were a business who was next door, they suffered a loss of
business as a result of the activities of the gypsy such shooting air rifles into the premise, the dogs which
chased customer. As a result page Motor sued the council and not the Gypsy’s in private nuisance.
o It was held by the court of appeal that they had adopted and continued this nuisance and therefore the
council must be liable. They continued it because they knew of it and they adopted it

Hussain v Lancaster CC [1999]

o The Hussein family were a victim of racial harassment by other tenants, (abuse, and intermediation). They
sue the council in private nuisance and argued that the private use or enjoyment of the Land was being
effected.
o It was held that the council were not libel, the reason it was said that the council did not have sufficient
knowledge of the harassment and the intimidation in order to warrant a liability

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2. Has there been a ‘failure to take all reasonable means’ to abate?

Subjective test (i.e. in accordance with the resources of the defendant, such as money): Page Motors Ltd v Epsom & Ewell
BC, above

Positive duty to abate hazards/interferences, in two circumstances

a. Where Trespassers has caused nuisance on the defendant property, per Sedleigh-Denfield, supra
b. A naturally-occurring danger that occurred on their land but they did not remove

Goldman v Hargrave [1967] (obvious danger)

o The west Australian wheat farm, in which a lighting had hit a tree, and they got an independent contractor
who cut the tree and left it to burn out. Three days later this hot wind created a massive fire storm. This
was successful in negligence and private nuisance. The reason why private nuisance was successful, was
said that fire on the tree could have been abated within the resource of the defendant. (i.e. put out with
water)

 Holbeck Hall Hotel v Scarborough BC [2000] (not obvious danger)

o The claimant owed a hotel in Scarborough near a cliff overlooking the sea. The area the between the hotel
and beach, the cliff was owned by the council. There had been a few minor landslide along the cliff. On this
day there was a massive land slide in which part of the hotel structure became exposed as result the entire
hotel had to be demolished. The owner of the hotel then sued the Scarborough council in private
nuisance.
o It was held that the defendant council was not liable in private nuisance and the case was distinguished
from Goldman v Hargrave. The court gave two point:

1. Firstly the council would have a duty to abate obvious or patent dangers, such that of the fire
in the tree in Goldman.
2. The second point was that this was not an obvious danger and therefore not expected of the
council, it was outside their resources. (it was a hidden danger)- it would have required a
geological survey

DEFENCES TO PRIVATE NUISANCE

Can D rely on any defences?

1. Prescription: were the defendant carries out the nuisance activity for 20 years without protest, then the
Defendant can carry on the activity, but he must be doing the nuisance for 20 years not activity itself. It must be
the nuisance of that activity. Coventry v Lawrence [2014]
2. The effect of planning permission is not a defence: Coventry v Lawrence [2014]
3. contributory negligence ‘consent to the interference: Leakey
4. The claimant coming to the nuisance: (the defendant cannot use this as a defence)-but may have an impact on
the remedy, such that they don’t get an injunction. Coventry v Lawrence [2014]
5. A public benefit is not an outright defence.

REMEDIES FOR PRIVATE NUISANCE

a. Damages
 What damages assesses in nuisance (the damages given must reflect the injury or damage to the property)- you
must get valuation in order to show a devaluation in the value of the property as a result of the nuisance or the
rental value (hard economic value)

Hunter v Canary Wharf, supra – personal injury is not recoverable but chattel damage might be recoverable

b. Injunction (equity remedy- it’s the courts discretion)

 equitable + how it’s used ( but just the nuisance, i.e. to put a time restriction on the nuisance activity or to lower
the noise level)
 Damages in lieu of an injunction: (this is given if this would be oppressive against the defendant to give an
injunction) Coventry v Lawrence [2014] UKSC 13; cf. Kennaway v Thompson [1981] QB 88 (Also their aircraft
case)

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 Usefulness of interlocutory injunctions: (shutdown until a full trial takes place). Laws v Florinplace [1981] All ER
659 (pornography case)
 a quia timet injunction may be warranted, although try to establish a present nuisance: Leakey, supra

c. Abatement

 This is where the claimant removes the nuisance themselves (i.e. a self-help remedy). – cutting trees or tree roots

Meaning and limitations: Burton v Winters [1993] 1 WLR 1077 conditions

a. Notice of the abatement must be given to the defendant

b. Must be exercised with reasonable care (not to damage his property)

PUBLIC NUISANCE

1. Definition

 ‘An act or omission which materially affects the reasonable comfort and convenience of life of a class of Her
Majesty’s subjects’

 A person commits a public nuisance if by his unlawful act he endangers the life, health or safety of the public’:
Claimants appearing on the Register of the Corby Group Litigation v Corby DC [2009]

 Who brings the action: Local Government Act 1972, s 222 (it’s the Local government bring the
action in some instances), or the chancellor, but normally injured claimants
 Personal injury can be claimed recently discussed and resolved could be recovered (by CA) in:
Corby Group Litigation v Corby BC [2008]

ELEMENT 1: INFRINGEMENT OF PUBLIC CONVENIENCE AND SAFETY

1. Obstructions on highways can give rise to public nuisances (obstruction of a river way etc...)

Obstructions on a highway which are inconvenient or produce a risk of physical harm

Nottingham CC v Zain [2001]

o In a particular road in Nottingham drug dealers were very active, and they felt scared of walking down that
road, this was seen as a public nuisance.

Wandsworth v Railtrack plc [2001]

o In this case Railtrack were sued because pigeons were on these rail tracks and their droppings were
inconvenient to people passing by, this was public nuisance.

Example: you can have an object which comes from the defendant land and blocks or injures someone on the highway, this
would be seen as a public nuisance and there is no requirement of standing, such that the person injured needs to be a
proprietary or posseory owner of the highway, this is not required. Anyone whose use of the highway is affected could sue.

Premises adjoining the highway:

Woolfall v Knowsley BC [1992]

o A flying tin that hit a pass by as he used the path, this was a public nuisance.

2. If no ‘public’ element, then no public nuisance

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Consider the setting aside of convictions in:

R v Rimmington and Goldstein [2005]

o Mr Rimmington had sent racists literature, to a number of household and much of it was offensive, he
was convicted of private nuisance. The other guy put salt as a joke and sent it to his friends, this then
split open in the post office which they then thought it was anthrax and they evacuated the area
o The house of Lord said in both these case that this was not public nuisance. The person who sent the
racist literature was to finate number and did not have a public element (over 500 people)-still no public
element, they said that this would also apply to nuisance phone calls. However, in the second case Mr
Goldstein, the cancellation of the post office was seen to have the necessary public element.

ELEMENT 2: THE MENS REA ELEMENT (foreseeability)

 Defendant must have known or ought to have known that the inconvenience would be a result of what he had
done’: R v Shorrock [1994] QB 279;
 The court said that case above the salt (Mr Goldstein) in the envelope could not have foreseen this, he wanted it
to go to his friend not to cause public problem.

ELEMENT 3: WAS THE DAMAGE TO THE CLAIMANTS OVER AND ABOVE THAT SUFFERED BY THE PUBLIC?

 A class of claimants who are affected by the defendant’s action per A G v PYA Quarries Ltd [1957]

THE RULE IN RYLANDS v FLETCHER

Define:

Statement of the rule

 ‘the person who for his own purposes brings on his lands and collects and keeps there anything likely to do
mischief if it escapes [and is a non-natural use], must keep it in at his peril, and, if he does not do so, is prima
facie answerable for all the damage which is the natural consequence of its escape’ per Blackburn J in Rylands v
Fletcher (1866) LR 1 Ex 265 [added by Lord Cairns at HL in the same case, subsequently accepted as part of the
rule]
 This a ‘Strict liability’ rule

ELEMENT 1: A DANGEROUS THING WHICH ESCAPES

1. What ‘dangerous’ means

 Things that are likely to cause damage if they escape, they don’t necessary need to be dangerous) –i.e. water is
not dangerous but it can cause damage if it escaped.

Examples:

Rylands v Fletcher, above – water kept in reservoir

o The defendant Mr Rylands was a Mill owner who wanted a resvour to be built, to store for his Mill. He
employed an independent contractor, but the contractor did not block our certain shafts. As a result these
shafts went down deep underground which linked up with tunnels to the claimant coal mine next door. (The
contactor or Mr Ryland knew nothing about it). The Weight of this reservoir went under the tunnels and
flooded Mr Fletcher coal mine. He sued Mr Rylands.
o It was held that this was an actionable claim.

Transco plc v Stockport: – water kept in pipes

Cambridge Water: –chemicals used by defendant

Mason v Levy Auto Parts [1967] – combustible materials

o The defendants had a store of machinery in inflammable packings, together with a quantity of petroleum,
acetylene and paints. A neighbour claimed from fire damage.

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o Held: They were liable for the damage when fire broke out and escaped to the neighbouring property. He
found that the circumstances of the storage amounted to a non-natural user and that consequently the
Defendants were liable under the rule in Rylands v Fletcher

Miles v Forest Rock [1918] – rocks thrown by explosion

o The defendant was blasting rocks using explosives which they had brought onto their land. Some of the rocks
flew onto the highway and injured the claimant. The claimant brought an action based on the principal
established in Rylands v Fletcher.
o Held: The defendant was liable despite the fact that the rocks were not brought on to the land nor purposively
collected and kept there. The explosives were accumulated and caused the rocks to escape.

British Celanese Ltd v Hunt Ltd (1969) – flying metal foil strips

o The storage of metal foil on premise situated on an industrial estate was held to be natural use of the Land. The
foil in question had escaped and came into contact with an overhead power cable resulting in a power cut. The
court said that there was no special risk attached to storing the foil and the use of the land was beneficial to the
community.
o Therefore the defendant were held not liable under Rylands and fletcher.

Perry v Kendricks Transport Ltd (1956) – petrol tank of a disused bus

o Two young boys trespassed onto the defendants land and threw a lighted match into the petrol tank of a disused
bus. There was an explosion and the plaintiff was injured. As the defendant had no control over the trespasser he
was held not to be liable by the court of appeal under Ryland v Fletcher.

LMS International v Styrene Packaging (2005) above – fire**

Treatment of the abnormally sensitive claimant (that the escape of the dangerous thing would effect a person of ordinary
suspeciablity and if then they can prove it they could recover the full injury (same as private nuisance)

2. The ‘escape’
 Test: Reasonable Foreseeability of damage: The defendant is only liable for that damage caused by the escape
which a reasonable bystander in the defendant’s position would have foreseen: Cambridge Water, supra (ratio:
that it must be foreseeable).

The damage caused to the Cambridge was not foreseeable to the leather manufactures, this changed the rule in Ryland v
Fletcher, and as if this was applied then the defendant would not have foreseen the resvour underneath the land that
caused the flood in the coal man in Ryland.

3. Was there an escape? And has the escape caused the requisite (and foreseeable) damage?

Case examples:

Transco plc v Stockport: – water kept in pipes

o The defendant council were responsible for the maintenance of the pipe work supplying water to a block of flats.
A leak developed which was undetected for some time. The water collected at an embankment which housed the
claimant’s high pressure gas main. The water caused the embankment to collapse and left the gas main exposed
and unsupported. This was a serious and immediate risk and the claimant took action to avoid the potential
danger. They then sought to recover the cost of the remedial works under the principle established in Rylands v
Fletcher.
o Held: The defendant was not liable. As it was seen as a natural use of their land

Cambridge Water: –chemicals used by defendant

o The defendant, Counties Leather made leather and they used a solvent which degreased the fat from the hide to
make leather good. This solvent was used every day and bit of these fell on the floor. Unfortionely it went

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through tiny cracks in the concrete floor and unknown to the defendant, there was an aqua fill running
underneath these premise, this solvent was going through soil and into the aqua fill. (They had no clue). This
solvent made it 17 miles into Cambridge water which was going to be expanded and used to provide water for
those who lived in Cambridge. This was then found to be contaminated water and had to be taken off grid and
cleaned.
o Held: could not succeed as the damage was not foreseeable.

Mason v Levy Auto Parts [1967] – combustible materials

o The defendants had a store of machinery in inflammable packings, together with a quantity of petroleum,
acetylene and paints. A neighbour claimed from fire damage.
o Held: They were liable for the damage when fire broke out and escaped to the neighbouring property. He
found that the circumstances of the storage amounted to a non-natural user and that consequently the
Defendants were liable under the rule in Rylands v Fletcher

Miles v Forest Rock [1918] – rocks thrown by explosion

o The defendant was blasting rocks using explosives which they had brought onto their land. Some of the rocks
flew onto the highway and injured the claimant. The claimant brought an action based on the principal
established in Rylands v Fletcher.
o Held: The defendant was liable despite the fact that the rocks were not brought on to the land nor purposively
collected and kept there. The explosives were accumulated and caused the rocks to escape.

British Celanese Ltd v Hunt Ltd (1969) – flying metal foil strips

o The storage of metal foil on premise situated on an industrial estate was held to be natural use of the Land. The
foil in question had escaped and came into contact with an overhead power cable resulting in a power cut. The
court said that there was no special risk attached to storing the foil and the use of the land was beneficial to the
community.
o Therefore the defendant were held not liable under Rylands and fletcher.

Perry v Kendricks Transport Ltd (1956) – petrol tank of a disused bus

o Two young boys trespassed onto the defendants land and threw a lighted match into the petrol tank of a disused
bus. There was an explosion and the plaintiff was injured. As the defendant had no control over the trespasser he
was held not to be liable by the court of appeal under Ryland v Fletcher.

LMS International v Styrene Packaging [2005] – fire**(test)

o The claimants sought damages after their premises were destroyed when a fire started in the defendants
neighbouring premises which contained substantial volumes of Styrofoam, (epsb). They alleged this was an
unnatural use of the land.
o Held: To establish liability for the escape of fire under the rule in Rylands, ‘the defendant must have brought
onto his land things which were likely to cause and/or catch fire, and kept them in such a condition that, if
they ignited, the fire would be likely to spread to the claimant’s land. Liable as Storage of large flammable epsb
was a non-natural use of the land.

Must be an ‘escape’ from the defendant’s premises required: (not enough if it remains in the defendant land)

 Read v J Lyons: it cannot just take place on the defendants land

The escape of the fire:

Stannard (Wyvern Tyres) v Gore:

 Ratio/principle: the Court of Appeal held that there is no special modification of the rule under Rylands v
Fletcher for cases involving the escape of fire. It is an essential requirement of this rule that the “dangerous
thing” brought onto the defendant’s land should escape. In so-called fire cases, where fire escapes but the
“dangerous thing” does not, the defendant will not be liable under Rylands v Fletcher, notwithstanding that the
“dangerous thing” may have played a role in the start or spread of the fire.

Facts:

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o The defendant, Mr Stannard, operated his tyre fitting and supply business, known as Wyvern Tyres, from a
trading estate in Hereford. The claimant occupied an adjoining unit. an electrical fire started at the defendant’s
premises, which developed and ignited some 3,000 tyres. As a result, the fire spread rapidly, destroying the
defendant’s premises, the claimant’s unit and other adjoining units. The claimant brought a claim against the
defendant in negligence and in strict liability, relying on Rylands v Fletcher.

Majority Held:

o The defendant is not liable under R&F. It is an essential requirement of the rule in Rylands v Fletcher that the
defendant has brought some exceptionally dangerous “thing” onto its land and that “thing” must escape causing
damage. In Wyvern, the “thing” (the tyres) did not escape. The fire fuelled by the tyres had escaped, but the
defendant had not brought the fire onto his land. In these circumstances a claim based on Rylands v
Fletcher must fail. The tyres were not exceptionally dangerous or mischievous. The D’s commercial activity as a
motor tyre supplier was perfectly ordinary and thus not a non-natural use of the Land

Harooni v Rustins [2011]:

o A fire spread through the former Gamages toy warehouse in North London at Waterloo Road. The fire had
started in a carpet warehouse, then spread to adjoining paint storage warehouses and to Mr Harooni’s Motor car
pars warehouse. The cause of the fire remained unknown. Unfortunately, due to ‘several unfortunate
administrative errors’ the insurer declined to cover the loss. Hence, Mr Harooni brought an action in Rylands v
Fletcher against the paint storage warehouse owners, on the basis that there was over 200,000 litres of
flammable materials in their warehouse which ignited during the course of the fire spreading to Mr Harooni’s
warehouse.
o Held: The claim failed because the judge decided that Rustins’ warehouse was not the source of the fire and
that the claimants had failed to prove that Mr Harooni’s warehouse had been destroyed by fire emanating from
Rustins. The judge added, however, his views that Rustins’ storage of the substantial quantities of flammable
materials was a “non-natural” use and that, if Mr Harooni’s warehouse had only been destroyed because of the
conflagration of that material and the consequential escape of fire from the conflagration on to Mr Harooni’s
premises, there would have been liability under Rylands v Fletcher against Rustins.

ELEMENT 2: ACCUMULATION OF DANGEROUS THINGS ON DEFENDANT’S LAND

1. Deliberate accumulation required (not a natural thing)

i. Unnatural accumulation –liable

LMS International v Styrene Packaging (2005), above

o In this case, the claimant rented an industry factor and next door, they were manufacturing plostryne, they
need epsb which is very danger, it caused them to catch fire. It damaged the next doors neighbours property
LMS. The court said that the first element of escape was met and the second was that this was a deliberate
accumulation of property.

In Ryland v Fletcher

o the deliberate accumulation was water container and it was a unnatural water container that escaped

ii. Natural accumulations- not liable

Ellison v Ministry of Defence

o held No Ryland and fletcher, (this Rain storm and the water that run off the landscape was natural escape

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ELEMENT 3: A NON-NATURAL USE (quite too difficult to meet)

1. Meaning of ‘non-natural use’ :

 (the defendant) The use must carry with it an abnormal and extraordinary use when compared with the social
utility of the defendant’s activity – if the use was a routine function which would not have struck a reasonable
person as raising any special hazard, it will be a natural use, not attracting the rule’s application.

i. Natural use: not liable

Ellison v Ministry of Defence:

o The MOD was allowed to make fuel tanks in the principle of national security which was a natural use of the
Land. Thus claimant could not succeed on this point.

Transco,

o Escape of water, it was held: Ryland and Fletcher must fail, this was a natural use of the Land, as providing
water to a domestic building- it was perfectly ordinary for the council to do.

British Celanese Ltd v Hunt Ltd (1969) – flying metal foil strips

o The storage of metal foil on premise situated on an industrial estate was held to be natural use of the Land.

ii. Non-natural use: (liable)

Cambridge Water (HL)

o The large store of chemical is good example of a non- natural use of the land, they only failed as the damage
was not foreseeable, and if they were then this would have succeeded under Ryland v fletcher.

LMS International v Styrene Packaging,

o Storage of large flammable epsb was a non-natural use of the land.

CAPACITY TO SUE UNDER RYLANDS v FLETCHER (exactly the same private nuisance)

 The modern rule: the need for a proprietary and possessory interest ; authority: Cambridge Water Co v
Eastern Counties Leather, supra, Transco

WHO CAN BE SUED UNDER RYLANDS v FLETCHER? (Occupation is enough on the defendant side)

 what the defendant must prove (that he is merely occupying is enough) : LMS International v Styrene Packaging
(2005), above

DEFENCES

 contributory negligence (not likely)

 consent of the claimant (not likely)

Most likely:

 acts of God, or acts of a stranger, over whom the defendant has no control

Perry v Kendricks Transport Ltd (1956) – petrol tank of a disused bus

o Two young boys trespassed onto the defendants land and threw a lighted match into the petrol tank of a disused
bus. There was an explosion and the plaintiff was injured. As the defendant had no control over the trespasser he
was held not to be liable by the court of appeal under Ryland v Fletcher.
o Parker LJ said that once the defendant proves that the escape was caused by a stranger or third party the burden
of proving Ryland v Fletcher rest with the plaintiff. This defence is restricted in the sense that it can only afford a
defence in the case of extreme natural conditions ‘which no human foresight can provide against’. The defendant
was not liable as the escape was caused by the deliberate action of a third party.

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