Learning Outcomes
After reading this article, you will be able to distinguish private and public nuisance, identify when interference with land is actionable, explain who can sue and be sued, understand strict liability under the rule in Rylands v Fletcher, and apply the correct defences and remedies for both claims. This will support you in analyzing SQE2 scenarios requiring application of nuisance and Rylands v Fletcher principles.
SQE2 Syllabus
For SQE2, you are required to understand nuisance and the rule in Rylands v Fletcher from both a practical and procedural standpoint. Focus your revision on:
- the essential elements of private and public nuisance (including who can claim, types of actionable damage, and necessary unreasonable interference)
- how to advise on whether conduct constitutes a nuisance or falls under Rylands v Fletcher, including the strict liability basis and what counts as a "non-natural" use of land
- identifying appropriate remedies and defences
- recognizing and applying the distinct requirements for who can claim, the types of loss recoverable, and the differences from trespass and negligence
- analyzing scenario-based and multiple-choice questions involving land, interference, and strict liability
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.
- Which of the following best describes when private nuisance is actionable?
a) Any minor inconvenience, regardless of duration.
b) Only with unreasonable and substantial interference with land.
c) Only where personal injury occurs.
d) Where the interference was deliberate. - Who is the most appropriate defendant in an action under the rule in Rylands v Fletcher?
a) The occupier of land from which a dangerous substance accumulated and escaped.
b) Any neighbouring tenant, regardless of control.
c) The occupier's family.
d) The local planning authority. - In nuisance, can a lawful visitor claim for noise disturbance if they do not have a proprietary interest in the land?
a) Yes
b) No
Introduction
Nuisance and the rule in Rylands v Fletcher concern unlawful interferences with a person's use or enjoyment of land. For SQE2, you must distinguish private and public nuisance, know who can sue, understand what makes an interference unlawful, and identify when strict liability under Rylands v Fletcher applies.
Key Term: private nuisance
Private nuisance is an unreasonable and substantial interference with a person’s use or enjoyment of land, or with rights connected to it.Key Term: public nuisance
Public nuisance is conduct that unreasonably affects the comfort, convenience, or health of a class of the public, requiring particular harm or damage to claim.Key Term: unreasonable interference
Unreasonable interference is a use of land that goes beyond what is normal or expected, taking into account duration, intensity, locality, sensitivity, and motive.Key Term: the rule in Rylands v Fletcher
The rule in Rylands v Fletcher imposes strict liability when something dangerous, accumulated on land for a non-natural use, escapes and causes foreseeable damage.
Private Nuisance
Private nuisance protects the use and enjoyment of land from unlawful interferences. Not all inconveniences amount to actionable nuisance—only those that are both substantial and unreasonable after balancing all circumstances.
Who can sue and be sued
Only those with proprietary interests (owners, tenants, and those with exclusive possession) in affected land can sue for private nuisance. Those who create, adopt, or continue the nuisance, or who are the occupiers of the land from which the nuisance emanates, can be liable. Landlords will be liable only if they participate in or authorize the nuisance.
Types of actionable nuisance
There are three main types:
- Encroachment onto land (e.g., tree roots, overhanging branches)
- Physical damage to land or property
- Loss of amenity (e.g., excessive noise, odours, smoke, or dust)
Assessing unlawfulness
Not every inconvenience is nuisance. The following factors are assessed collectively:
- Duration and frequency: Persistent interference is more likely to be actionable.
- Character of locality: Expectations differ between urban and rural settings, but physical damage is always actionable regardless of locality.
- Sensitivity: Only interference with normal use is actionable—unusual sensitivity does not justify a claim.
- Malice/motive: Deliberate interference to cause annoyance can make otherwise lawful acts unlawful.
Worked Example 1.1
A bakery operates machinery emitting occasional vibrations and noise. A pianist next door, whose grand piano goes out of tune from the vibrations, brings a claim. Is nuisance established?
Answer:
Nuisance is not established unless the interference is unreasonable to the average occupant. Because the pianist is particularly sensitive and the interference is not substantial or typically damaging to ordinary users, the claim is likely to fail.
Public Nuisance
Public nuisance protects the public's rights and the wellbeing of the community or a defined class. It covers interference with public rights (such as use of a highway) but can only be claimed in tort by an individual who can show particular damage over and above that suffered by the public as a whole (e.g., personal injury, property damage, financial loss).
Remedies in Nuisance
The main remedies are:
- Damages: For physical loss, financial loss, or discomfort.
- Injunction: To stop or limit ongoing or potential future nuisance, subject to discretion.
- Abatement: Self-help in some cases (e.g., cutting back encroaching branches after giving notice).
Exam Warning
In nuisance, claimants must have a proprietary interest in the affected land. Family members and licensees (without exclusive possession) cannot sue, even if they suffer discomfort.
Defences to Nuisance
Effective defences include:
- Prescription: If an activity has been actionable nuisance continuously for at least 20 years without challenge.
- Statutory authority: Lawful conduct authorized by statute.
- Consent: Where the claimant has agreed to the activity.
- Act of God: Damage arose from extraordinary natural events foreseeably unpreventable.
Ineffective defences:
- Coming to the nuisance (moving near the source knowingly).
- Public benefit of the activity.
- Claimant's unusual sensitivity.
Worked Example 1.2
Simon moves next to a long-operating night club and complains of noise disrupting his sleep. Can the club raise "coming to the nuisance" as a defence?
Answer:
No. "Coming to the nuisance" is not a defence. The club cannot avoid liability simply because Simon moved near it knowing its activities.
The Rule in Rylands v Fletcher
Rylands v Fletcher is a strict liability tort, not requiring proof of fault. Liability arises if four conditions are met:
- Accumulation: The defendant accumulates a dangerous thing on their land.
- Non-natural use: The accumulation is for a non-natural use (beyond normal, everyday use).
- Escape: The thing escapes from the defendant’s property.
- Foreseeable damage: The escape causes foreseeable type of property damage.
Key differences from nuisance
- Applies to isolated escapes; nuisance generally requires ongoing interference.
- Only property damage is covered; personal injury is not recoverable.
- Claimant must have a proprietary interest in the affected land.
Worked Example 1.3
A factory stores large quantities of chemicals for manufacturing. An accidental leak causes the chemicals to escape and damage a neighbour’s crops. Is the factory liable under Rylands v Fletcher?
Answer:
Yes, if the chemicals are dangerous, their storage is non-natural, and their escape causes foreseeable property damage. Liability is strict—no need to prove negligence.
Defences to the Rule in Rylands v Fletcher
Available defences:
- Act of a stranger: An unforeseeable act by a third party caused the escape.
- Act of God: Extraordinary natural events that could not have been anticipated.
- Statutory authority: If the accumulation is expressly permitted by law.
- Consent: Claimant expressly or impliedly agreed to the risk.
- Contributory negligence: Damages may be reduced if claimant's own carelessness contributed.
Revision Tip
Always distinguish strict liability under Rylands v Fletcher (requires proof of escape, non-natural use, and damage) from negligence (requires proof of fault) and nuisance (ongoing, unreasonable interference).
Key Point Checklist
This article has covered the following key knowledge points:
- Only those with a proprietary interest in affected land can sue in private nuisance.
- Private nuisance requires substantial and unreasonable interference with land rights.
- Public nuisance requires unreasonable interference with public rights and particular damage to sue in tort.
- The rule in Rylands v Fletcher imposes strict liability for escape of dangerous things from non-natural uses of land causing property damage.
- Key defences include prescription, statutory authority, act of God, and act of a stranger.
- Remedies include damages, injunctions, and (in some cases) self-help abatement.
Key Terms and Concepts
- private nuisance
- public nuisance
- unreasonable interference
- the rule in Rylands v Fletcher