Nuisance and the rule in Rylands v Fletcher—common law liability for pollution
Nuisance and the rule in Rylands v Fletcher—common law liability for pollution

The following Environment practice note provides comprehensive and up to date legal information covering:

  • Nuisance and the rule in Rylands v Fletcher—common law liability for pollution
  • Private nuisance
  • The rule in Rylands v Fletcher
  • Damage must be reasonably foreseeable
  • Transco—criteria for Rylands v Fletcher liability
  • Rylands v Fletcher and fire
  • Rylands v Fletcher and vibrations
  • Successors in title
  • Potential defences to liability under 'the rule in Rylands v Fletcher'

Private nuisance

Private nuisance is an unlawful interference with a person's use or enjoyment of land or some right over or in connection with it. Interference must be unreasonable, and may be caused, eg by water, smoke, smell, fumes, gas, noise, heat or vibrations.

Where the defendant has not caused the nuisance, but merely permitted it to continue, then proof of negligence is required. Liability only arises where the defendant failed to take reasonable steps to abate the nuisance once it knew or ought to have known about it.

Pollution of ground or surface water that flows through the property of another constitutes a nuisance. In Willis v Derwentside District Council, the council was liable in nuisance for gas escaping not only from its land, but also from gas merely passing through the property in underground pipes.

The duty to abate a nuisance is not limited to solving the physical nuisance. In Willis, despite having completed remedial work, the Council continued to be liable until it issued a certificate of completion for the work and provided an adequate undertaking in relation to future monitoring.

For more on private nuisance, see Practice Notes:

  1. Private nuisance—general principles

  2. Nuisance—establishing a claim for private nuisance

  3. Nuisance—what are public and private nuisance claims? and

  4. Neighbour disputes—noise and nuisance

The rule in Rylands v Fletcher

Under Rylands v Fletcher the occupier of land who

brings and keeps on it anything likely to do damage if it escapes is bound to prevent its escape and is liable for the consequences of its escape, even if he has not been negligent.

Damage must be reasonably foreseeable

In Cambridge Water, the defendant had used a chemical solvent in its tanning process. There were regular small spillages before a change of method in 1971. The spilled substance seeped through the tannery floor into the soil below and reached an impermeable stratum, from where it percolated along a plume into the stratum from which the plaintiffs extracted water for domestic use. The judge found that the defendant could not have foreseen at the time that repeated spillages of small quantities of solvent would enter the underground strata and pollute the ground water. The House of Lords held that foreseeability of damage is a prerequisite of liability. Strict liability for the escape of a substance from land arises only if the defendant knew or ought reasonably to have foreseen that its escape might cause damage. The defendant will be liable where there is an escape occurring in the course of the non-natural use of land, even if he had exercised all due care to prevent the escape from occurring. Since, in Cambridge Water, the defendant could not reasonably have foreseen that the seepage of the solvent through its tannery floor could have caused the pollution of the water extracted by the plaintiffs from the borehole, they were not liable under the rule in Rylands v Fletcher.

In Cambridge Water, Lord Goff said:

'as a general rule, it is more appropriate for strict liability in respect of operations of high risk to be imposed by Parliament, than by the courts. If such liability is imposed by statute, the relevant activities can be identified and those concerned can know where they stand. Furthermore, statute can, where appropriate, lay down precise criteria establishing the incidence and scope of such liability.'

Transco—criteria for Rylands v Fletcher liability

In Transco, Lord Hoffmann, emphasised the very limited circumstances to which Rylands v Fletcher is confined and that there was not a reported case since the Second World War in which anyone had succeeded in a claim under the rule. That situation changed after the Buncefield explosion with a ruling that included Rylands v Fletcher liability in Colour Quest.

Transco clarified that the criteria for liability under Rylands v Fletcher are that:

  1. the defendant must be the owner or occupier of land

  2. he must bring or keep or collect an exceptionally dangerous or mischievous thing on his land

  3. he must have recognised or ought reasonably to have recognised, judged by the standards appropriate at the relevant place and time, that there is an exceptionally high risk of danger or mischief if that thing should escape, however unlikely an escape may have been thought to be

  4. his use of his land must, having regard to all the circumstances of time and place, be extraordinary and unusual

  5. the thing must escape from his property into or onto the property of another

  6. the escape must cause damage of a relevant kind to the rights and enjoyment of the claimant's land

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