Nuisance and the rule in Rylands v Fletcher - Unlawful inter...

Learning Outcomes

This article examines the legal principles governing private and public nuisance, focusing on the requirements for unlawful interference with land, the strict liability rule in Rylands v Fletcher, the elements needed to establish liability, and the main defences. It distinguishes nuisance from Rylands v Fletcher and sets out appropriate remedies for land-related torts. It addresses the assessment of reasonableness by reference to locality, duration, sensitivity, malice and public benefit; the significance of physical damage as an indicator of unreasonableness; who can sue and who can be sued in each tort; and the selection and justification of remedies (damages or injunctions) with reference to modern authority.

SQE1 Syllabus

For SQE1, you are required to understand the law relating to unlawful interference with land, including nuisance and the rule in Rylands v Fletcher, with a focus on the following syllabus points:

• the definition and elements of private nuisance and public nuisance
• who can sue and who can be sued in nuisance claims (including occupiers, creators, and landlords who authorise or continue a nuisance)
• the requirements for liability under the rule in Rylands v Fletcher (accumulation, non-natural use, escape, and foreseeability of damage)
• the distinction between nuisance and Rylands v Fletcher, and their relationship to property damage and personal injury
• available remedies and defences for both torts, including prescription, statutory authority, act of God/stranger, consent and contributory negligence
• the role of locality, duration/frequency, sensitivity, malice and public benefit in assessing unlawfulness
• the limits of public nuisance (class of persons, special damage) and who may bring proceedings (including the Attorney General/local authorities)

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. Who can bring a claim in private nuisance?
2. What are the essential elements required to establish liability under the rule in Rylands v Fletcher?
3. What is the difference between public and private nuisance?
4. Name two defences available to a defendant facing a Rylands v Fletcher claim.

Introduction

Unlawful interference with the use or enjoyment of land is addressed in tort law through the doctrines of nuisance and the rule in Rylands v Fletcher. These torts protect landowners and occupiers from substantial and unreasonable disturbances or dangers originating from neighbouring land. Private nuisance largely protects proprietary interests and focuses on indirect interferences (as opposed to direct trespass), while public nuisance targets widespread interference with public rights. The rule in Rylands v Fletcher is a specialised, strict liability form of private nuisance dealing with escapes of dangerous things from non-natural uses of land. A clear understanding of who may sue, what amounts to unlawful interference, and the appropriate remedy is essential.

Private Nuisance

Private nuisance protects a person's right to use and enjoy their land without substantial and unreasonable interference from others. The interference must be indirect (such as noise, smells, or encroaching roots) and not a direct trespass. It also typically emanates from the defendant’s land or activities there; “one-off” or purely private losses unconnected to land use are not within private nuisance.

Key Term: private nuisance
An unlawful and indirect interference with a person's use or enjoyment of land, or some right over or in connection with it.

Who can sue and who can be sued?

Only those with a proprietary interest in the affected land (such as owners or tenants) can bring a claim in private nuisance. A mere lodger or guest cannot sue. A spouse with a beneficial interest in the family home may qualify. A non-resident landlord may sue where the nuisance causes permanent damage to the property itself.

The defendant may be:

• the creator of the nuisance (who may or may not be the occupier)
• the occupier of the land from which the nuisance originates (where they create, authorise, adopt, or continue the nuisance)
• in some cases, a landlord who has authorised the nuisance (for example, by letting for an activity that inevitably causes the nuisance), or knowingly allows it to continue at the time of letting

Key Term: proprietary interest
A legal right to exclusive possession of land, such as ownership or a leasehold interest.

What amounts to unlawful interference?

To be actionable, the interference must be both substantial and unreasonable. The court will consider several factors:

• Character of the locality: What is reasonable in an industrial area may not be in a residential area. Where interference results in physical damage to property (for example, acid smuts damaging trees), locality carries little weight; such damage is ordinarily unreasonable.
• Duration and frequency: Persistent or long-lasting interferences are more likely to be unreasonable. Some continuity is typically required, although repeated incidents may suffice.
• Sensitivity of the claimant: The standard is that of the ordinary occupier, not someone unusually sensitive. If ordinary use would be affected, the claimant can recover the full extent of their loss even if their use is particularly sensitive.
• Malice: Deliberate acts to annoy or harm are more likely to be unlawful. Conduct that would otherwise be permissible can become unreasonable when done maliciously.
• Public benefit: The usefulness of the defendant's activity may be considered, but does not excuse a nuisance. It is more relevant to remedy (e.g., damages instead of injunction) than to liability.
• Foreseeability: Interference with the claimant’s reasonable use must be a foreseeable consequence of the defendant’s acts or omissions.

Physical damage to land or buildings is a strong indicator of unlawfulness; interferences with comfort (noise, odour, dust) require a contextual assessment of the factors above.

Key Term: unlawful interference
A substantial and unreasonable disturbance to the use or enjoyment of land, judged by the standard of the ordinary occupier.

Types of interference

Private nuisance can arise from:

• encroachment onto land (e.g., tree roots or overhanging branches, subsidence or flooding due to works)
• physical damage to land or buildings (e.g., chemical fumes or particulate smuts damaging vegetation or facades)
• interference with comfort or enjoyment (e.g., persistent night-time noise, strong odours, smoke, vibration, dust impeding garden use)

Interference must relate to the claimant’s use or enjoyment of land (including rights connected with it). For example, the loss of a television signal caused by a new structure will not normally suffice unless it arises from something emanating from the defendant’s land that interferes with use.

Worked Example 1.1

A bakery operates late into the night, producing strong smells and loud machinery noise. A neighbouring homeowner complains that sleep is disturbed every night. Is this likely to be private nuisance?

Answer:
Yes. Persistent noise and odours interfering with sleep are substantial and unreasonable interferences with the use and enjoyment of land, likely to amount to private nuisance.

Defences to private nuisance

• Prescription: If the nuisance has continued for at least 20 years without complaint (and was actionable throughout), the defendant may acquire a right to continue. Time usually runs from when the activity first became a nuisance to the claimant.
• Statutory authority: If the activity is authorised by statute and the nuisance is unavoidable, this may be a defence. The defendant must generally show that Parliament contemplated the activity and that the nuisance is the inevitable consequence of carrying it out properly.
• Consent: If the claimant expressly or impliedly agreed to the interference. The scope of any consent is construed strictly.
• Act of God: Unforeseeable natural events may excuse liability, but the threshold is high. If a defendant’s works obstruct or alter the natural flow of water and exacerbate flooding, the defence is unlikely to succeed.
• Act of a stranger: If the nuisance is caused by an unforeseeable act of a third party, and the defendant exercised reasonable care to prevent such interference.
• Contributory negligence: May reduce damages where the claimant contributed to their loss or damage.

Points to note:

• “Coming to the nuisance” is not a defence. A claimant can sue even if the nuisance predates their occupation, subject to other limits on reasonableness.
• Planning permission does not authorise nuisance, though it may be relevant to locality. Conditions in planning permissions limiting noise or hours may inform the court’s assessment.

Remedies for private nuisance

• Injunction: Court order to stop or limit the nuisance. Relief can be tailored to balance competing interests, including limiting hours or noise levels. Modern authority emphasises flexibility: where damages would adequately compensate and an injunction would be oppressive or contrary to the public interest, the court may refuse an injunction.
• Damages: Compensation for loss or harm suffered, including physical damage to land/buildings and loss of amenity (e.g., inability to use a garden). Damages may be awarded in lieu of an injunction if appropriate.
• Abatement: The claimant may take reasonable steps to remove the nuisance (e.g., cutting overhanging branches), usually after giving notice and without causing unnecessary damage. Care must be taken to avoid trespass or excessive self-help.

When deciding between an injunction and damages, the court weighs factors such as the scale of interference, whether harm is small and quantifiable, whether damages are adequate, and whether an injunction would be oppressive or adversely affect the public interest.

Public Nuisance

Public nuisance is both a tort and a crime. It involves unreasonable interference with rights common to the public, such as the use of a highway or public resources, and addresses broader community harms (e.g., outbreaks of noxious smells, obstruction of public ways, widespread pollution).

Key Term: public nuisance
An act or omission that materially affects the reasonable comfort and convenience of a class of the public.

Who can sue?

Any member of the affected class who suffers special damage (over and above that suffered by the public generally) can bring a claim in tort. The Attorney General or a local authority may also bring proceedings on behalf of the public. The claimant need not have a proprietary interest in land to sue in public nuisance; what matters is the class-wide interference plus special damage.

Elements of public nuisance

• The nuisance must affect a class of people (the court looks at the scope and nature of the impact rather than a set headcount).
• The claimant must suffer special damage beyond that suffered by the general public (e.g., personal injury, property damage, economic loss with a particularised impact).

Typical classes include local residents affected by quarry blasting or emissions, highway users endangered by activities adjoining the highway, and communities impacted by toxic releases. Conduct aimed at disparate individuals across the country (with no commonality) may not constitute a public nuisance.

Worked Example 1.2

A factory regularly emits smoke that causes breathing difficulties for many residents in a neighbourhood. One resident develops a serious lung condition as a result. Can this resident bring a claim in public nuisance?

Answer:
Yes. The smoke affects a class of people (the neighbourhood), and the resident has suffered special damage (serious illness) beyond the general inconvenience.

The Rule in Rylands v Fletcher

The rule in Rylands v Fletcher imposes strict liability for damage caused by the escape of dangerous things from land where they have been accumulated for a non-natural use. It is a specialised form of private nuisance. Modern authority has refined the scope: liability is confined to property damage and requires foreseeability of the kind of damage caused.

Key Term: Rylands v Fletcher (rule)
A strict liability tort where a person who brings onto their land something likely to cause harm if it escapes is liable for damage caused by its escape, provided the use is non-natural.

Elements of liability

To establish liability under Rylands v Fletcher, the claimant must prove:

1. The defendant brought onto their land something likely to do mischief if it escapes. The thing need not be inherently dangerous; the question is whether, if it escapes, it is likely to cause damage. The defendant must have collected or kept it on the land; natural occurrences (e.g., naturally growing thistles) are not enough.
2. There was a non-natural use of the land. This has an elevated threshold. Non-natural use means a special or unusual use, in extraordinary circumstances, creating an increased danger to others by virtue of accumulation and the setting. Routine domestic or utility uses (like a household water supply) are usually natural uses; large-scale industrial chemical storage may be non-natural.
3. The thing escaped from the defendant's land. There must be an escape from the defendant’s control to land outside their occupation; internal mishaps without external escape will not suffice.
4. The escape caused foreseeable damage of the relevant type. The damage must be of a kind reasonably foreseeable if escape occurred. Liability under this rule is for property damage only; personal injury is ordinarily outside scope.

Key Term: non-natural use
A use of land that is extraordinary or unusual in the context of the locality and circumstances.

Key Term: escape
The movement of a dangerous thing from the defendant's land to land outside their control, causing damage.

Key Term: strict liability
Liability imposed without proof of fault or negligence, provided the required elements are met.

The rule has important modern limits. For example, storing tyres on land did not trigger the rule when fire spread from them: the relevant thing brought onto land was the tyres (not the fire), and tyres are not likely to do mischief upon escape in that sense. Utility waterpipe leaks are commonly treated as natural uses unless stored or used in extraordinary ways.

Worked Example 1.3

A chemical company stores large tanks of toxic waste on its land. Due to a leak, the chemicals seep into neighbouring gardens, killing plants and contaminating the soil. Is the company liable under Rylands v Fletcher?

Answer:
Yes. The company brought a dangerous substance onto its land, the use is non-natural, the chemicals escaped, and damage to neighbouring property was foreseeable.

Defences to Rylands v Fletcher

• Act of a stranger: The escape was caused by an unforeseeable act of a third party over whom the defendant had no control.
• Act of God: The escape was caused by an unforeseeable natural event of exceptional severity. The threshold is high.
• Consent: The claimant consented to the accumulation of the dangerous thing or enjoyed a common benefit from it.
• Statutory authority: The activity was authorised by statute and the escape was the unavoidable consequence of proper execution.
• Default of the claimant: The claimant’s own actions caused or contributed to the escape.

Additional points:

• Personal injury is generally not recoverable under Rylands v Fletcher; claims for bodily harm must proceed under negligence or other appropriate torts.
• Non-natural use is judged against contemporary standards; what was “non-natural” decades ago may be routine today.

Exam Warning

For SQE1, remember that Rylands v Fletcher is a strict liability tort, but not absolute. The claimant must still prove the elements, and certain defences may apply. Personal injury is generally not recoverable under Rylands v Fletcher—focus on property damage.

Distinguishing Nuisance and Rylands v Fletcher

While both torts protect interests in land, there are key differences:

Public nuisance differs again: it protects public rights, anyone within the affected class may be impacted, and a private claimant must show special damage.

Key Point Checklist

This article has covered the following key knowledge points:

• Private nuisance protects against substantial and unreasonable interference with land use or enjoyment, judged by locality, duration, sensitivity, malice and foreseeability.
• Only those with a proprietary interest in land (owners, tenants, beneficiaries with exclusive possession rights) can sue in private nuisance.
• Physical damage to property is a strong indicator of unlawfulness; interferences with comfort require a contextual assessment.
• Defendants include creators of the nuisance, occupiers who authorise/adopt/continue it, and (in limited cases) landlords who authorise inevitable nuisances.
• Public nuisance requires interference with rights common to the public and special damage to the claimant; the Attorney General/local authorities may act on behalf of the public.
• The rule in Rylands v Fletcher imposes strict liability for escapes from non-natural uses of land, confined to foreseeable property damage.
• Rylands v Fletcher requires accumulation, non-natural use, escape, and foreseeability; modern cases set a high bar for “non-natural use”.
• Defences include act of a stranger, act of God, consent/common benefit, statutory authority, and default of the claimant; contributory negligence may reduce damages where relevant.
• Remedies include tailored injunctions (which may be refused where damages are adequate and an injunction would be oppressive) and damages (including for loss of amenity); abatement is available with caution.

Key Terms and Concepts

• private nuisance
• proprietary interest
• unlawful interference
• public nuisance
• Rylands v Fletcher (rule)
• non-natural use
• escape
• strict liability