6.2 Nuisance and Rylands v Fletcher Lecture

There are two primary features of nuisance. Firstly, it involves the protection of the use of land (or property). Secondly, that protection is from unreasonable interference.

Property Interests and Private Nuisance

It is necessary that a claimant has a proprietary interest in the property which is interfered with, Malone v Laskey [1907].

What Constitutes Unreasonable Interference?

Unreasonable interference is use of land or property which in a way which would foreseeably interfere with the claimant’s quiet enjoyment of their own land. There are five main factors which determine this:

  1. Character of Neighbourhood:

This refers to what might reasonably be expected of an area, Sturges v Bridgeman [1879].

This will only be relevant where the nuisance is one which causes inconvenience to the claimant, rather than physical damage (which is unreasonable nuisance regardless of neighbourhood context), St Helen’s Smelting v Tippings [1865].

  1. Sensitivity of the Claimant:

The existence of nuisance is judged against its effect on a reasonable person, and if the claimant is unusually sensitive to a nuisance, or is using their property for an unusual (and therefore not ‘ordinary’) purpose, then the nuisance will not be legally recognised, Robinson v Kilvert [1889].

  1. Duration of Nuisance:

There must be some continuity to the duration of the nuisance. Usually, one-off incidents will not constitute a nuisance, save for some rare exceptions, Crown River Cruises v Kimbolton Fireworks [1996].

The ongoing nuisance may be instigated by a single act, Spicer v Smee [1946]. Temporary nuisances may also constitute continual nuisances, De Keyser’s Royal Hotel v Spicer Bros (1914).

  1. Public Benefit:

This is a key mechanism for distinguishing between reasonable and unreasonable conduct; namely whether the activity benefits the public. Construction is often considered to be for the public benefit. 

  1. Malice:

If it is found that the defendant is acting with deliberate hostility or spite, this makes it far more likely that their actions will found to be unreasonable, Hollywood Silver Fox Farm v Emmett [1936].

Private Nuisance Must Cause Harm

The claimant must demonstrate that there has been some harm from the defendant’s actions. Three types of harm were laid down in Hunter v Canary Wharf [1997]:

  1. Encroachment, where the defendant’s activity or land directly affects the claimant’s property;
  1. Physical damage; and
  1. Interference with the claimant’s enjoyment of their property, which includes cases involving noise or odour.

Some scenarios will be a combination of these harms.

Public Nuisance

If an individual can demonstrate that they, as an individual, have been especially affected by public nuisance, then they may make a claim in tort.

Where a substantial proportion of a class of persons is affected by a nuisance, this can be regarded as a public nuisance, Attorney General v PYA Quarries [1957].

What Constitutes a ‘Class of People’?

The affected group of people must be so large that, as per AG v PYA Quarries, ‘it would not be reasonable to expect one person to take proceedings … to put a stop to it but that it should be taken on the responsibility of the community at large.’ The number depends on the case at hand.

The Special Damage Requirement

The claimant must then show that they have suffered damage over and above the class of people affected.

Nuisance Defences

Prescription:

A claim that a defendant has acquired a right to cause the relevant nuisance because they have done so for over 20 years without interruption, Sturges v Bridgman.

Statutory Authority:

However, an authorised activity which is undertaken in an unreasonable manner can still give rise to a claim, Wheeler v JJ Saunders [1996].

Ineffective Defences:

The claimant has ‘come to the nuisance’, Miller v Jackson; Sturges v Bridgman, or the defendant’s actions only constituted a nuisance when combined with others.

Rylands v Fletcher

This case created a nuisance-like tort. It is now only relevant in cases of property damage or harm to proprietary interests, and courts have been reticent to utilise the doctrine. There are four elements:

  1. Collecting and Keeping on Land;
  1. Non-Natural Use of Land;
  1. Likely Mischief; or
  1. Escape and Harm.

Defences:

Contributory negligence and consent can be used. Defendants can also advance an act of god/ nature defence. Third-party action can break the causal link, Rickards v Lothian. Statutory authorisation again excludes liability.


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