Nuisance and Rylands v Fletcher — SQE1 FLK1 Tort Law

A commercial unit beside a terraced house is now a music rehearsal studio. Bands practise there from ten in the morning until midnight, seven days a week. The homeowner has lived there twelve years and owns the place. She cannot sleep. Ornaments are shaken off the shelves, and cracks have opened in the plasterwork on the party wall.

Nothing has been discharged onto her land. Nobody has entered it. No other household in the street is affected. Which tort? Private nuisance. Not negligence, not trespass, not Rylands v Fletcher, not public nuisance. Every one of those exclusions is a rule in this episode.

This is Nuisance and the rule in Rylands v Fletcher, the last topic in Tort Law. Keep her house in mind. We come back to it.

Here is the route. Private nuisance first: what it protects, and who is allowed to sue. Then the test for unreasonable interference, and the factors that decide it. Then public nuisance, and the special damage a private claimant must show. Then the rule in Rylands v Fletcher, and its four requirements. Then remedies. And finally the defences, including the one everybody thinks exists and does not.

Private nuisance is an unlawful, unwarranted or unreasonable interference with a person's use or enjoyment of land, or of some right over or in connection with it. Notice the word doing the work. Land. A tort about land, not personal comfort. Get that wrong and you pick the wrong claimant.

So the first question is never whether the interference is bad enough. It is who owns what. A woman complained that vibrations from her neighbour's machinery shook the lavatory cistern in her house. Real interference. No claim, because she had no interest in the property. Only her husband did.

You need a sufficient interest in the land affected. A freeholder, a leaseholder, a tenant, anyone with a right to exclusive possession. A licensee generally has none. The House of Lords confirmed that in Hunter v Canary Wharf, 1997, disapproving a wider approach that had briefly let anyone with a substantial link to the home sue. Our homeowner owns hers. Standing, done.

Hunter decided something else worth keeping. A tall building interfered with television reception for the residents around it, and that was held not to be an actionable nuisance. The tort protects the land itself, not what arrives at it through the air. No right to receive a signal, and no natural right to a view.

Four categories, worth naming first. Encroachment, meaning roots or branches over the boundary. Interference with enjoyment: noise, smell, dust, vibration, fumes, light. Interference with easements, such as a right of way. And interference with a public utility.

Now the central test. Is the interference unreasonable? The old formulation comes from Sturges v Bridgman, 1879: what would be unreasonable to the ordinary person using land in the normal way. A confectioner had worked a noisy pestle and mortar for over 20 years. A doctor then built a consulting room next door, and the noise became a nuisance to him.

What was not a nuisance to one use of land became a nuisance when a more sensitive use arrived. And the confectioner got no protection from having been there first. Coming to the nuisance is no defence. Hold that one. It comes back twice.

The Supreme Court restated the test in Fearn v Tate Gallery, 2023. The touchstone is whether the defendant's own use of land is a common and ordinary use, judged by the standards of the locality. And there is no fixed limit on what can be a nuisance. A gallery built a public viewing platform from which visitors looked straight into glass-walled flats. Visual intrusion. Actionable.

The gallery argued it was too valuable to restrain. The public benefit, said the court, goes to the remedy, not to liability. Then six factors. Character of the neighbourhood, duration and frequency, time of day, the utility of the conduct, the sensitivity of the claimant, and malice.

Locality first, because it sets the baseline. What is normal beside a factory in an industrial zone is not normal in a residential suburb. There, a circular saw in a converted garage, audible indoors with the windows shut, is out of keeping.

But there is a line running through all of that. Locality governs amenity nuisances, noise and smell and the like. Where the nuisance causes actual physical damage to property, locality is irrelevant. Copper smelter fumes that kill a homeowner's trees are actionable in the middle of an industrial area. Which is why the cracks in our homeowner's party wall matter more than her lost sleep.

Two calibrations. First, hypersensitivity. Heat from the defendant's basement rose and damaged the claimant's exceptionally heat-sensitive brown paper. Ordinary paper would have been fine, so the loss came from the claimant's own sensitivity. No nuisance. Fine dust that ruins precision optical lenses gets the same answer.

Second, malice. A man fired guns near his neighbour's breeding foxes, knowing it would make them miscarry. The noise alone might have been reasonable. The deliberate purpose to harm made it a nuisance. But malice has a hard limit. A landowner who drained the percolating water under his own land, purely to force a corporation to buy him out, was not liable. A lawful act done as of right does not become unlawful because the motive is bad.

You can also be liable for a nuisance you did not create. A trespasser laid a drainage pipe in a ditch on the occupiers' land. They knew about it, knew there was no grid to stop it blocking, and did nothing. It blocked and flooded the neighbour. Liable. Once an occupier knows of a nuisance on his land and fails to take reasonable steps to end it, he adopts and continues it.

Natural conditions too. A mound of earth on the occupier's land became unstable and threatened the house below. An occupier who knows of a natural danger owes a measured duty to do what is reasonable, taking account of his own resources.

And a landlord out of occupation can be liable where the nuisance was the inevitable consequence of the purpose of the letting. Think of land let expressly for go-kart racing.

Public nuisance now, a different animal. An unlawful act or omission that endangers the life, health, property, morals or comfort of the public, or obstructs rights common to all. It must affect a section of the public as a class, not a collection of individuals. A quarry throwing dust across a whole area is the classic case.

It has a dual character, and the statute matters. Since s.78 of the Police, Crime, Sentencing and Courts Act 2022 the crime is a statutory offence, and the old common-law crime is abolished. The tort survives, expressly preserved by s.78(8). So a colleague who says public nuisance no longer exists is half right and wholly wrong.

But a private individual suing in public nuisance must show special damage. Loss over and above what the public generally suffered, and different in kind from it. A chemical works discharges into a river. A commercial fisherman loses his livelihood and sells his boat. Special damage. A woman who can no longer sit in her garden because of the smell, like every neighbour along the bank, has none.

So line the two up. Private nuisance: you need an interest in land, and you sue for the interference with your own land. Public nuisance: no interest needed at all, but you must show special damage. That woman with the smell? Her public nuisance claim fails. Her private nuisance claim may well succeed.

Now the rule in Rylands v Fletcher, from 1868. Strict liability for damage caused by the escape of a dangerous thing brought onto land. No fault to prove. The defendant built a reservoir to supply his mill. Beneath it, unknown to him, were abandoned mine shafts. It was filled, the water burst through, and it flooded the neighbouring mine. Liable, though he knew nothing of the shafts and had not been negligent.

Four requirements, and every one must be met. One: the defendant brought the thing onto the land, a deliberate accumulation, not something growing there naturally. Two: it was likely to do mischief if it escaped. Three: it actually escaped. Four: the escape caused damage of a foreseeable type. Miss one and the rule does not apply at all.

Non-natural use is where most claims die. The original case called it a use not ordinary or natural, and the modern courts have squeezed it hard, down to what is genuinely exceptional and dangerous.

Then Cambridge Water v Eastern Counties Leather, 1994, added a requirement that changed both torts at once. Chemicals from a tannery seeped through the ground and reached the claimant's borehole 40 years later. Foreseeability of the type of damage is required in nuisance and under Rylands alike. Contamination of that kind was not foreseeable when the chemicals were spilled, so the claim failed.

Escape is not optional either. A munitions inspector was injured by an explosion inside the defendant's factory, while on the premises. Nothing had escaped to a place outside the defendant's control. No escape, no liability, whatever the danger.

In Transco the House of Lords narrowed it again. A water pipe serving a block of flats leaked undetected, the escaping water collapsed an embankment, and the claimant's gas main was left exposed. Piping a normal water supply is an ordinary use of land. The rule now reaches only what is extraordinary and unusual, judged by the standards of the time and the place.

So what is left? Reservoirs, hazardous chemical storage, explosives. A slurry lagoon holding several million litres. Not a heating oil tank of the size normal for the building it serves. And the thing accumulated must be the thing that escapes. A tyre fitter accumulated tyres, not fire, so the rule did not apply when fire spread.

One more limit. Rylands protects interests in land. It does not reach personal injury, and a claimant with no interest in the land affected cannot use it. And strict is not absolute. Where a vandal broke in and opened a valve against reasonable security, that unforeseeable act of a stranger gave the occupier a defence.

Remedies. Damages are compensatory: physical damage, loss of use and enjoyment, financial losses. But measure them by the injury to the land. Dust on a family home does not produce five awards because five people live there.

Injunctions are the main event. Four types. Prohibitory, ordering the defendant to stop. Mandatory, ordering positive steps. Interim, granted before trial. And damages in lieu, under s.50(1) of the Senior Courts Act 1981. For an interim injunction the court asks whether there is a serious question to be tried, then weighs the balance of convenience.

Damages in lieu were long controlled by an 1895 working rule of four conditions. In 2014 the Supreme Court held those conditions must not fetter the discretion, and that damages may be awarded more readily. Where soundproofing would cost more than the business is worth, that matters.

And abatement, the self-help remedy. Your neighbour's branches overhang your garden, and you may cut them back to the boundary without going to court, peaceably and reasonably. One catch. What you cut off is not yours. The severed branches remain the tree owner's property.

Defences. Prescription first. Under the Prescription Act 1832, twenty years of continuous enjoyment as of right, without force, secrecy or permission, gives a right to continue. But read the clock. Time runs from when the activity became an actionable nuisance to that land, not from when it began. Which is why the confectioner's twenty years bought him nothing.

Statutory authority next. Where Parliament authorises an undertaking by a private Act, it impliedly authorises the interference that is the inevitable consequence of carrying it on. An oil refinery authorised by a private Act was protected on that basis. But the defence goes no further than inevitability. Interference that better practice could have avoided was never authorised.

Three more, quickly. Act of God: natural forces so exceptional that no foresight could anticipate them. An ordinary winter gale is not one. Contributory negligence, under the Law Reform (Contributory Negligence) Act 1945, reduces damages proportionally. And the act of a third party, where someone else caused the nuisance entirely.

Which claim, then? Negligence where there is a duty and a breach. Private nuisance where the interference is with land. Rylands where a dangerous thing escapes from a non-natural use. Back to our homeowner. Noise until midnight, cracks in her party wall, the freehold in her name. Private nuisance, and an injunction to ask for.

A word on how SQE1 tests this. You are not asked to recall case names or section numbers. You get a scenario, five answers, and one instruction: pick the best. So learn the rules and how they decide facts. The names in this episode are memory pegs, nothing more.

If you keep only three. Sturges v Bridgman, for the confectioner and the doctor, because coming to the nuisance is no defence and locality sets the baseline. Rylands v Fletcher, for the reservoir over the mine shafts, because liability there needs no fault at all. And Cambridge Water, because foreseeability of the type of damage is now required in nuisance and under Rylands alike.

Four traps. One: coming to the nuisance is not a defence, and it never becomes one. But do not overstate it. Locality is still relevant. And if you changed the use of your own land, so that the activity next door became a nuisance only because of that, the answer can shift.

Two: do not confuse that with prescription. Twenty years of noise buys nothing on its own. The clock only starts when the activity became an actionable nuisance to the land you are standing on.

Three: planning permission is not statutory authority. It permits the development as a matter of planning law, nothing more. It does not authorise a nuisance and is no defence, though it can bear on locality and on whether you get an injunction or money.

Four: keep the standing rules the right way round. Private nuisance needs an interest in land and no special damage. Public nuisance needs special damage and no interest in land. Swap them and you pick a confident wrong answer, which is what the next question is built to catch.

Quick check. A man rents out a room in his house to a lodger of three years. There is no tenancy. The lodger pays weekly, and the owner may enter the room whenever he likes and may move him to a different one. The workshop next door runs heavy machinery that makes the floors shake and the pipes rattle from early morning until night.

He finds it intolerable. He has asked the owner to complain, and the owner will do nothing. Can the lodger bring a claim in private nuisance? Three candidate answers. One: yes, because anyone who lives in the affected property may sue.

Two: no, because only a freehold owner may sue in private nuisance, and he is not one. Three: no, because he has no right to exclusive possession of any part of the house. Pause here if you want a moment.

The answer is three. Private nuisance protects interests in land, so the claimant needs a right to exclusive possession: a freeholder, a tenant, or an exclusive licensee. This lodger pays weekly for a room the owner may enter at will and move him out of. No exclusive possession, no standing, however bad the vibration is.

Why the others fail. One treats mere residence as enough. The tort is concerned with rights in land, not with who happens to live there. Two reaches the right answer for the wrong reason, and that still costs you the mark. A tenant may sue, and so may anyone with exclusive possession.

Five things to take away. One: private nuisance protects land, so the claimant needs exclusive possession. Two: the test is whether the defendant's use is common and ordinary, judged by the locality, except where there is physical damage, when locality drops out.

Three: public nuisance needs a class of the public, and a private claimant needs special damage, different in kind. Four: Rylands needs an accumulation, a thing likely to do mischief, an escape, foreseeable damage, and an extraordinary use of land. Five: prescription runs twenty years from when the nuisance became actionable, and planning permission is no defence.

And our homeowner? She owns her house, the noise runs to midnight, and her party wall is cracking. Physical damage means the character of the street cannot be used against her. That is the end of Tort Law. Next time, a new subject: Business Law and Practice.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.