Nuisance and the rule in Rylands v Fletcher - Defences and r...

Learning Outcomes

This article outlines defences and remedies in private nuisance and key defences under the rule in Rylands v Fletcher, including:

• identification and analysis of principal defences to private nuisance—consent, prescription, statutory authority, act of God, and act of a stranger—with their elements, evidential burdens, and common pitfalls in SQE1 questions;
• clear differentiation between genuine defences and arguments that merely influence remedy—such as planning permission, public benefit, and “coming to the nuisance”—and how examiners typically test these distinctions;
• structured coverage of remedies in private nuisance, including types of injunctions (interim, prohibitory, mandatory, and quia timet), damages for amenity loss and property damage, abatement, and the circumstances in which damages in lieu of an injunction are appropriate;
• detailed treatment of defences under Rylands v Fletcher—act of a stranger, act of God, consent, statutory authority, and contributory negligence—together with the requirement that damage be of a reasonably foreseeable type;
• guidance on evaluating remedial options and defence strategies in realistic problem-style scenarios, enabling precise selection of the strongest arguments for claimants and defendants;
• clarification of how strict liability in Rylands v Fletcher interacts with fault-based concepts in nuisance, helping you avoid common doctrinal confusion in multiple-choice and case-based questions.

SQE1 Syllabus

For SQE1, you are required to understand defences and remedies in private nuisance and under the rule in Rylands v Fletcher, with a focus on the following syllabus points:

• the main defences to private nuisance (consent, prescription, statutory authority, act of God, and act of a stranger), including limits and case law illustrations
• why planning permission, public benefit, and “coming to the nuisance” are not defences (and where they may be relevant to remedies)
• specific defences to claims under Rylands v Fletcher (act of a stranger, act of God, consent, statutory authority, and contributory negligence)
• the distinction between strict liability and fault-based liability, especially in Rylands v Fletcher, and the role of reasonable foreseeability of damage
• the range of remedies available in private nuisance: prohibitory and mandatory injunctions, damages (amenity and property damage), and abatement, including damages in lieu of injunction and quia timet relief
• how to select an appropriate remedy and advise on defence strategy in practical scenarios

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is a valid defence to a claim in private nuisance?
   1. The claimant moved next door after the nuisance began
   2. The nuisance has continued openly for 20 years without interruption
   3. The defendant did not intend to cause a nuisance
   4. The claimant is unusually sensitive
2. Under the rule in Rylands v Fletcher, which of the following is NOT a defence?
   1. Act of God
   2. Act of a stranger
   3. The escape was caused by the defendant’s employee
   4. Statutory authority
3. What is the main remedy typically sought in a successful private nuisance claim?
   1. Damages only
   2. Injunction only
   3. Injunction and/or damages
   4. Abatement only

4. True or false? A defendant can always avoid liability in nuisance by showing they took all reasonable care.

Introduction

Private nuisance and the rule in Rylands v Fletcher are torts that protect the use and enjoyment of land. Both can give rise to claims for interference with property, but they differ in their requirements, available defences, and remedies. For SQE1, you must know the main defences to these torts and the remedies a claimant can seek.

Defences in Private Nuisance

A defendant facing a claim in private nuisance may be able to rely on several defences. Not all arguments will succeed—some commonly raised points are not valid defences.

Consent (Volenti non fit injuria)

If the claimant has expressly or impliedly agreed to the interference, they cannot later claim it is a nuisance. Consent must be informed and truly voluntary; knowledge of a risk is not the same as agreeing to assume it. In practice, consent is more likely where the claimant actively participated in or requested the activity causing the interference.

Key Term: Consent (volenti non fit injuria)
A complete defence where the claimant has agreed to the interference, preventing them from claiming for nuisance.

Practical limits: consent fails if the claimant had no realistic choice but to accept the activity, or if the scope of consent does not extend to the manner in which the interference occurred (for example, foul play or negligent operation in a sporting or recreational context).

Prescription

If a nuisance has continued openly and without interruption for at least 20 years against the specific claimant (or their predecessors in title), the defendant may acquire a legal right to continue the activity. Time runs from the point at which the activity first became an actionable nuisance to that claimant, not from its first commencement on the land. Mere longevity of an activity does not suffice if it only recently became a nuisance.

Key Term: Prescription
A defence where a defendant acquires a right to continue a nuisance after 20 years of uninterrupted, open activity actionable against the claimant.

Sturges v Bridgman illustrates that if the interference only becomes actionable (e.g., after a neighbour’s change of use bringing them closer to the source), 20 years must run from that point.

Statutory Authority

If the defendant’s activity is expressly or impliedly authorised by statute, and the nuisance is an inevitable result of carrying out what the statute authorises, this can be a defence. The burden is on the defendant to show the nuisance cannot reasonably be avoided while complying with the statutory power. Negligent performance will not be protected.

Key Term: Statutory Authority
A defence where the nuisance is the unavoidable result of an activity authorised by statute.

Allen v Gulf Oil Refining indicates that the defence is confined to nuisances necessarily resulting from the authorised operation; discretionary or negligent aspects fall outside it.

Act of God (Vis Major)

A rare defence, available where the nuisance is caused by a natural event so extraordinary that it could not have been foreseen or guarded against. Courts treat “act of God” narrowly: extreme weather is increasingly considered foreseeable; altering natural watercourses or creating structures that exacerbate flooding can defeat the defence.

Key Term: Act of God
A defence where an unforeseeable, extraordinary natural event causes the nuisance or escape.

Greenock Corporation v Caledonian Railway shows the defence fails if the defendant’s works changed the natural flow in a way that made flooding probable during heavy rain.

Act of a Stranger

If the nuisance is caused by the unforeseeable act of a third party over whom the defendant has no control, the defendant may escape liability. The defendant should show reasonable inspections and prompt remedial steps upon becoming aware of the third-party act.

Key Term: Act of a Stranger
A defence where a third party, outside the defendant’s control, causes the escape or nuisance.

Ineffective Defences

Some arguments do not succeed as defences in private nuisance:

• The claimant “came to the nuisance” (i.e., moved next door after the nuisance began). This is not a defence, though it might inform remedial discretion.
• The defendant took all reasonable care (nuisance is about unreasonable use of land, not fault).
• The defendant did not intend to cause a nuisance (intention is irrelevant).
• The claimant is unusually sensitive (unless the nuisance would also affect a normal user).
• Planning permission does not convert an unreasonable interference into a defence; it can be relevant to locality but cannot legalise a nuisance.
• Public benefit is not a defence to liability, though it may affect whether an injunction is granted or damages awarded instead.

Worked Example 1.1

A factory emits noise that disturbs a neighbour’s sleep. The factory has operated for 15 years, and the neighbour moved in 10 years ago. The factory claims the neighbour “came to the nuisance.” Is this a defence?

Answer:
No. The fact that the neighbour moved in after the nuisance began is not a defence. The factory cannot rely on “coming to the nuisance” to avoid liability. The court may later consider locality or public interest when selecting remedies, but liability is unaffected.

Worked Example 1.2

A local authority grants planning permission for a motorsports venue with noise limits. The operator complies with permission, but neighbours suffer substantial interference. Can the operator rely on planning permission as a defence?

Answer:
No. Planning permission is not a defence to private nuisance. It may inform the character of the locality and the remedy (e.g., tailored injunction or damages), but it cannot legalise an unreasonable interference.

Defences under the Rule in Rylands v Fletcher

Claims under Rylands v Fletcher are subject to strict liability, but several defences are available. Liability depends on an escape of a dangerous thing brought onto the land in a non-natural (extraordinary or unusual) use, causing reasonably foreseeable damage of the relevant type.

Exam context note: No personal injury damages are recoverable under Rylands v Fletcher; the tort is confined to damage to land or property on land.

Act of God

If the escape is caused by an unforeseeable, extraordinary natural event, the defendant is not liable. The threshold is high and rarely met.

Act of a Stranger (Rylands v Fletcher)

If the escape is caused by the unforeseeable act of a third party whom the defendant could not anticipate or control, the defendant is not liable. The defence is defeated if such acts were reasonably foreseeable in the circumstances without appropriate precautions.

Consent

If the claimant consented to the accumulation of the dangerous thing or both parties derived a common benefit from it (for example, shared drainage), the defendant may avoid liability.

Statutory Authority (Rylands v Fletcher)

If the defendant’s activity is authorised by statute and the escape is an inevitable result, this is a defence. As with nuisance, negligent performance is not protected.

Contributory Negligence

If the claimant’s own carelessness contributed to the loss, damages may be reduced under the Law Reform (Contributory Negligence) Act 1945.

Foreseeability: Even in strict liability under Rylands v Fletcher, the damage must be of a reasonably foreseeable type (Cambridge Water). Routine activities such as domestic water supply are generally not “non-natural” uses in modern conditions (Transco), and the thing itself must escape (Stannard).

Worked Example 1.3

A landowner stores chemicals on their land. A lightning strike causes a fire, leading to chemicals escaping onto a neighbour’s property. Can the landowner rely on the act of God defence?

Answer:
Yes, if the lightning strike was truly unforeseeable and extraordinary, and the landowner could not have guarded against it, the act of God defence may apply. If the way the chemicals were stored made escape likely during foreseeable storms, the defence would fail.

Worked Example 1.4

The defendant stores tyres which catch fire; flames spread to the neighbour’s premises, but the tyres themselves remain on the defendant’s land. Is the defendant liable under Rylands v Fletcher?

Answer:
No, under Rylands v Fletcher the dangerous thing must escape. Tyres did not escape; fire did. Fire was not the accumulated thing brought onto land, so the claim fails under Rylands. Other causes of action (e.g., negligence or nuisance) may be available.

Remedies in Private Nuisance

A successful claimant in private nuisance may seek several remedies. The court will select the most appropriate remedy based on the facts.

Injunction

An injunction is a court order requiring the defendant to stop or limit the nuisance. It may be prohibitory (preventing an activity) or mandatory (requiring positive action). Courts can grant interim relief pending trial, and in appropriate cases quia timet injunctions to prevent anticipated interference where there is a high likelihood of harm, imminent risk, and no realistic prospect of voluntary restraint.

Key Term: Injunction
A court order requiring a party to do or refrain from doing something, commonly used to stop a nuisance.

Key Term: Quia timet injunction
An order granted to prevent an anticipated nuisance where harm is likely, imminent, and cannot be prevented without court intervention.

Tailoring and discretion: Injunctions in nuisance are equitable and discretionary. They are often tailored to balance competing land uses (for example, limiting hours, decibel levels, or frequencies). If damages are an adequate remedy, or an injunction would be oppressive, the court may award damages instead. The classic Shelfer guidelines (small harm, quantifiable, compensable by money, oppression to grant an injunction) guide—but do not fetter—discretion; courts also consider wider public interest and whether planning conditions can inform workable limits.

Key Term: Damages in lieu of injunction
Damages awarded instead of an injunction where money can adequately compensate and injunctive relief would be oppressive.

Damages

Damages compensate the claimant for losses suffered, such as physical damage to property or loss of amenity (personal discomfort and inconvenience). For property damage, the usual measure is reasonable costs of repair or, where appropriate, diminution in value. Loss of amenity is assessed by the nature, intensity, duration, and impact of the interference on ordinary use of the land. While private nuisance protects interests in land, personal injury damages are not typically recoverable; negligence is the usual route for personal injury.

Key Term: Damages
Monetary compensation awarded for loss or harm caused by a tort.

Abatement

In some cases, the claimant may take reasonable steps to stop the nuisance themselves (e.g., cutting overhanging branches) and recover the costs. Abatement must be exercised carefully: give prior notice where practicable; do not enter beyond the boundary unless necessary; act proportionately; return any cuttings belonging to the neighbour; avoid causing damage.

Key Term: Abatement
The right of a claimant to take reasonable steps to remove or stop a nuisance, sometimes recovering costs from the defendant.

Worked Example 1.5

A neighbour’s tree branches overhang your property and block sunlight. You ask the neighbour to trim them, but they refuse. What remedy is available?

Answer:
You may abate the nuisance by trimming the branches yourself (without trespassing beyond your boundary) and return the cut branches to your neighbour. Alternatively, you may seek an injunction or damages if harm has occurred.

Worked Example 1.6

A watersports operator’s activities cause intrusive noise on weekends and evenings. The court finds nuisance. How might relief be structured?

Answer:
The court may grant a tailored injunction limiting the frequency, timing, and noise levels of events rather than prohibiting all activity, balancing both parties’ rights. If limits are workable and damages are adequate for residual harm, the court may award damages in lieu of a blanket injunction.

Exam Warning

In private nuisance, the court will not always grant an injunction even if the claimant wins. If damages are an adequate remedy, or an injunction would be oppressive, the court may award damages instead. Public interest and practicality can influence this choice.

Revision Tip

For SQE1, remember that strict liability under Rylands v Fletcher does not mean absolute liability. The defendant can escape liability if a valid defence applies, and damage must be of a reasonably foreseeable type.

Key Point Checklist

This article has covered the following key knowledge points:

• The main defences to private nuisance are consent, prescription, statutory authority, act of God, and act of a stranger; each has narrow limits and burdens.
• Planning permission and public benefit are not defences; “coming to the nuisance” does not bar liability.
• Under Rylands v Fletcher, strict liability applies but several defences are available, including act of God, act of a stranger, consent, and statutory authority; contributory negligence can reduce damages.
• Damage under Rylands v Fletcher must be of a reasonably foreseeable type; the dangerous thing must escape; personal injury is not recoverable under this tort.
• Remedies in private nuisance include injunctions (interim, prohibitory, mandatory, and quia timet), damages (amenity and property damage), and abatement.
• Courts may refuse an injunction if damages are adequate or an injunction would be oppressive; damages may be awarded in lieu of an injunction and relief can be tailored to balance land uses.
• Abatement requires reasonable, proportionate self-help with notice, respecting boundaries, and returning cuttings; overreach may amount to trespass.

Key Terms and Concepts

• Consent (volenti non fit injuria)
• Prescription
• Statutory Authority
• Act of God
• Act of a Stranger
• Injunction
• Quia timet injunction
• Damages
• Damages in lieu of injunction
• Abatement