10.3 Nuisance and Rylands v Fletcher

Quick Answer: Private nuisance is a land tort requiring a proprietary interest and an unreasonable interference; public nuisance protects a class of the public; Rylands v Fletcher imposes strict liability for a mischievous escape from an extraordinary use, with foreseeability of the relevant damage, and does not cover personal injury.

FLK1 groups private nuisance, public nuisance, and Rylands v Fletcher (1868) LR 3 HL 330 because they police how land is used, not because they are interchangeable. Occupiers' liability and product liability (the previous sections of this independent OpenExamPrep chapter) protect personal safety on premises or in goods. Nuisance and Rylands primarily protect land and amenity. Choose the wrong tort and you will invent standing, recover the wrong heads of loss, or miss a defence that only one tort recognises.

Private nuisance: who can sue and what counts

Private nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it. Physical damage to buildings, encroachment by tree roots, noise, smell, dust, vibration, and — after Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4 — intensive visual intrusion from a viewing platform can all qualify. There is no easement of a pleasant view in the abstract, and Hunter v Canary Wharf Ltd [1997] AC 655 still holds that blocking a television signal by building a lawful tower, without more, is not nuisance. Fearn does not turn every overlooking window into a tort; it treats a dedicated viewing platform that constantly watches dwellings as an interference with ordinary residential use.

Standing. Hunter confines claimants to those with a right to exclusive possession of the affected land: freeholders, tenants, and some licensees with exclusive possession. Family members, lodgers, and mere occupants cannot sue in private nuisance for their own discomfort. They may have other claims (harassment, on the right facts), but not this tort. That is one of the highest-yield SQE1 traps in the whole topic.

Who can be sued. The creator of the nuisance is liable even after leaving the land. The occupier who continues or adopts a nuisance created by a trespasser or predecessor is liable (Sedleigh-Denfield v O'Callaghan [1940] AC 880). For naturally occurring hazards, occupiers owe a measured duty to do what is reasonable: Leakey v National Trust [1980] QB 485 (slipping bank). Landlords are not generally liable for a tenant's nuisance unless they authorised it, participated, or let in circumstances where the nuisance was almost certain to result.

Unlawfulness is not "anything annoying". The court balances give and take in the locality (Sturges v Bridgman (1879) 11 Ch D 852: what is a nuisance in Belgrave Square may not be so in Bermondsey). Duration, frequency, intensity, time of day, and the character of the neighbourhood all count. Planning permission is not a licence to commit nuisance, though it can change the locality's character over time and is highly relevant to remedy (Coventry v Lawrence [2014] UKSC 13; contrast the older Wheeler v JJ Saunders Ltd [1996] Ch 19). A claimant's abnormal sensitivity is discounted: Robinson v Kilvert (1889) 41 Ch D 88 (unusually delicate paper). Malice can convert otherwise reasonable conduct into nuisance: Christie v Davey [1893] 1 Ch 316; Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468.

Public nuisance and the Rylands restatement

Public nuisance is a tort (and historically a crime) affecting a class of Her Majesty's subjects: Attorney-General v PYA Quarries Ltd [1957] 2 QB 169. The Attorney General may sue on a relator action. A private claimant needs special damage over and above the class — particular injury, not merely a share of the common inconvenience. Obstruction of the highway, widespread contamination, and some large industrial escapes are typical. Unlike private nuisance, public nuisance is not confined to claimants with a land interest, and personal injury has been treated as recoverable special damage (Corby Group Litigation [2008] EWCA Civ 463). Do not use public nuisance as a shortcut around Hunter unless the facts really show a class plus particular damage.

Rylands v Fletcher is now treated as a sub-species of nuisance (Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61; Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264). The classic formulation: a person who, for their own purposes, brings onto land and collects and keeps there something likely to do mischief if it escapes, must keep it in at their peril. After Transco and Cambridge Water, teach it as a checklist:

1. the defendant brought onto the land something likely to do mischief if it escaped (not a natural accumulation: Giles v Walker (1890) 24 QBD 656);
2. that thing escaped from land in the defendant's control to other land (Read v J Lyons & Co Ltd [1947] AC 156: explosion inside a munitions factory, no escape, no Rylands);
3. the use was non-natural / extraordinary rather than ordinary domestic or municipal use (Rickards v Lothian [1913] AC 263; ordinary water or gas pipes failed in Transco);
4. the claimant has a land interest (because the tort is a form of nuisance);
5. the type of damage was a reasonably foreseeable consequence of the escape (Cambridge Water).

Personal injury is not recoverable in Rylands (Transco, following Read v Lyons). Use negligence, occupiers' liability, or CPA for bodies. Stannard (t/a Wyvern Tyres) v Gore [2012] EWCA Civ 1248 is the fire trap: tyres stored on land caught fire; the fire spread but the tyres did not escape; Rylands failed. Colour Quest Ltd v Total Downstream UK plc [2009] EWHC 540 (Comm) (Buncefield) shows when a bulk fuel escape can support both nuisance and Rylands for land damage.

Defences, remedies, and exam technique

Coming to the nuisance is not a defence. A claimant who moves next to an existing cricket club or motor-racing circuit is not barred merely by arrival (Bliss v Hall (1838) 4 Bing NC 183; confirmed in Coventry v Lawrence). The defendant's long use may still matter for prescription: 20 years' nuisance as of right can legalise a private nuisance, but only if the activity was a nuisance throughout, not merely a use that later became one when the claimant built (Sturges v Bridgman). Statutory authority defeats claims where the nuisance is the inevitable result of a scheme authorised by statute (Allen v Gulf Oil Refining Ltd [1981] AC 1001). Public benefit, planning permission, and "many jobs" are not complete defences to liability.

Rylands adds act of God (Nichols v Marsland (1876) 2 Ex D 1: extraordinary rainfall), act of a stranger over whom the defendant had no control (Rickards v Lothian; Perry v Kendricks Transport Ltd [1956] 1 WLR 85), default of the claimant, and common benefit/consent (Peters v Prince of Wales Theatre (Birmingham) Ltd [1943] KB 73). These defences do not automatically transplant into ordinary private nuisance, though some facts overlap.

Remedies. Damages compensate land damage (diminution in value or reasonable reinstatement) and amenity loss. Stigma and consequential business interruption need careful remoteness analysis. For a continuing nuisance, an injunction is the ordinary and historically primary remedy. The court may award damages in lieu of an injunction (Senior Courts Act 1981 s.50, the successor to Lord Cairns' Act). Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 offered a four-part test (small injury, estimable in money, adequately compensable, oppressive to injunct). Coventry v Lawrence [2014] UKSC 13 holds that Shelfer must not be applied mechanically: an injunction remains the starting point, but the court has a structured discretion, and planning permission and the public interest can influence the choice of remedy even though they do not authorise the tort. Quia timet injunctions restrain an imminent nuisance before damage. Abatement (self-help, such as cutting encroaching roots) is allowed within strict limits: no unnecessary damage, and notice is often required if the abater must enter the defendant's land.

Worked pattern: a speedway has operated for 15 years with planning permission. A tenant who took a lease two years ago sues in private nuisance for night-time roar and for oil that escaped from a bulk tank onto her garden. Her partner, who lives there without a tenancy, wants damages for insomnia and a burned hand from the oil. The tenant has standing; the partner does not for private nuisance or Rylands. Planning permission and "coming to the nuisance" do not defeat liability. Prescription is unlikely if 20 years of nuisance as against this land is not made out. Oil from a bulk tank may be Rylands if the accumulation is extraordinary and the oil escaped; the burned hand is not a Rylands head — try negligence. Remedy: injunction against future meetings versus damages in lieu under Coventry v Lawrence, with the planning history relevant to that choice.

Traps: letting a spouse without a lease sue in private nuisance; awarding Rylands damages for personal injury; treating planning permission as an automatic defence; assuming fire spread is an "escape" of stored goods; applying occupiers' 1984 property bar to a neighbour's land damage; writing "the court will always injunct" after Coventry v Lawrence, or "the court will never injunct" after Shelfer.