Nuisance: applying old rules to modern cases
16 February 2018
Shy Jackson reviews a 150-year old ruling on nuisance, highlighting its applicability to modern land and construction cases
RICS was founded in 1868 and has been developing ever since. Land and construction law has likewise changed in that time, although one important survivor from those days is the House of Lords’ judgment in Rylands v Fletcher  L.R. 1 Exch. 265. This holds that the occupier of land who brings and keeps any substance there likely to do damage if it escapes is bound to prevent its escape and is liable for the consequences should it do so, even if there has been no negligence.
That liability in such cases will be for private nuisance, which is an unlawful interference with a person’s use or enjoyment of land. In that case, the defendants constructed a reservoir and, unknown to them, the land contained mines that connected to a colliery operated by the owner of neighbouring land. It was held there was no negligence but that the defendants were liable when, on the reservoir being filled, the water flowed through the old mines into the neighbouring land. The Rylands rule has developed since 1866, but it is still relevant and applicable; though, as the following cases show, careful consideration of the facts in each case is needed.
Use of land and escape
In order for liability to arise, the use has to be unnatural, and the substance has to escape from one land to the other. In Transco v Stockport Metropolitan Borough Council  UKHL 61, water escaped from a pipe carrying it from mains to storage tanks in a block of flats belonging to the local authority, causing the collapse of an embankment supporting a gas main. It was held that the rule did not apply in this case, as it was impossible to regard the supply of water by the council to the block of flats as anything other than a natural or ordinary use.
Liability is not limited to the owner of the land – it extends to the person who controls or manages the dangerous substance, and it could therefore make a contractor liable for the escape of, for example, building materials or fuel kept for its plant. There are some defences that can be raised, including where the injured party caused the escape, or where the escape was due to an act of god or a third party.
In order to make a claim for damages, the harm must also be foreseeable. In Cambridge Water v Eastern Counties Leather  2 AC 264, water in a borehole was contaminated by solvent seeping into the ground from a tannery that was located 2km away. It was held that the use of land was unnatural, but that the harm caused could not be regarded as foreseeable.
A more recent example is the decision reached in Northumbrian Water Ltd v Sir Robert McAlpine Ltd  EWHC 1940 (TCC), when the statutory sewerage undertaker sued a contractor after concrete that had been poured as part of the piling works got into private drains and caused a blockage in a neighbouring property. Neither party was aware of the private drain until an inspection of a 1908 plan of the connection, which was found in the drainage archives at the Newcastle Discovery Museum. The judge decided that as the contractor was not negligent, it had not been established that the existence of the drain was reasonably foreseeable and, therefore, neither was the damage to the sewer.
As can be seen, liability under the rule in Rylands is not easy to establish, but any liability that may arise cannot be ignored. The rule can impose a liability on contractors and owners of land and construction practitioners, and while the law has developed substantially over the past 150 years, there are still circumstances in which it might apply as part of the general tort of nuisance.
Shy Jackson is Partner at Pinsent Masons