ENVIRONMENTAL LAW
1
COMMON LAW II: NUISANCE AND THE RULE
IN RYLANDS V FLETCHER.
LIMITATIONS OF THE COMMON LAW
Environmental Law
2
 Rylands v Fletcher [1868] LR3 330 HL
 Facts
 No action in Negligence
 No relationship between contractor and mine-owner
 No action in Nuisance
 Isolated incident
 Blackburn J
Environmental Law
3
 ‘...the person who for his own purpose brings onto
his land and collects and keeps there anything likely
to do mischief if it escapes, must keep it at his peril,
and if he does not do so he is prima facie answerable
for all the damage which is the natural consequence
of its escape’
Environmental Law
4
 House of Lords
 Non-Natural User
 Use must be ‘some special use bringing with it
increased danger to others and must not merely be
the ordinary use of land or such use as is proper for
the general benefit of the Community.’ Rickards v
Lothian [1913] AC 263
 ‘Natural’ became synonymous with ‘public benefit’
 Read v Lyons [1947] AC 156 HL refused to extend
doctrine to strict liability for ultra hazardous
activities
Environmental Law
5
 Cambridge Water Co v Eastern Counties Leather [1994]
1 All ER 53
 Facts: First Instance; Court of Appeal; House of Lords
 Held: Irrespective of whether the rule in Rylands v
Fletcher was treated as an aspect of nuisance or as a
special rule pertaining to strict liability for damage
caused by ultra-hazardous operations on land because of
the extraordinary risk to others resulting from such
operations, forseeability of damage of the
relevant type if there was an escape from the land of
things likely to do mischief was a prerequisite of
liability.
Environmental law
6
 Accordingly, strict liability for the escape from
land of things likely to do mischief only arose if the
defendant knew or ought reasonably to have
foreseen that those things might if they
escaped cause damage.
 The rule was one of strict liability in the sense
that the defendant could be held liable where there
was an escape occurring in the course of the nonnatural user of land notwithstanding that he
had exercised all due care to prevent the
escape from occurring
Environmental Law
7
 Since the defendants could not in the circumstances
reasonably have foreseen that the seepage of the
solvent through their tannery floor could have
caused the pollution of the plaintiff’s borehole, they
were not liable under the Rule in Rylands v Fletcher
 Non-natural use
 The storage of substantial quantities of chemicals on
industrial premises is an almost classic case of nonnatural use even in an industrial complex.
Environmental Law
8
 Lord Goff equates ‘natural use’ with ‘ordinary use’.
 Transco plc v Stockport MBC [2004] 1 All ER 589, 596
 Lord Bingham considered non-natural user as equivalent
to extraordinary or unusual circumstances.
 ‘the question is whether the defendant has done
something which he recognises, or ought to recognise, as
being quite out of the ordinary in the place and at the
time when he does it’.
 Lord Hoffman – non-natural user =whether the occupier
could reasonably be expected to have insured against the
damage arising from it
Environmental Law
9
 Strict Liability for the escape of things likely to do
mischief only arose if defendant knew or ought
reasonably to have foreseen escape would cause
damage.
 Important qualification to rule where historic
pollution, ie where pollution has existed for some
time and has not been fully appreciated.
 HL = Rule in Rylands v Fletcher = Nuisance
Environmental Law
10
 Policy= Reluctant to impose retrospective liability.
 Liability for historic pollution is a matter for Parliament.
 Lord Goff ‘I incline to the opinion that, 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 authorities 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.’ [p.
76 (d)]
Environmental Law
11
 Contaminated Land Regime
 Part IIA of the Environmental Protection Act 1990 [inserted
by Environment Act 1995]
 Environmental Liability Regime introduced by EU Law
Environmental Liability Directive 2004/35/EC, wef 2007
[damage to habitats, waters, soil]
Excludes liability for damage to property, personal injury
and economic loss
Environmental Damage (Prevention and Remediation)
Regulations 2009 impose liability on commercial operators
which cause /may cause significant environmental damage
Environmental Law
12
 Limitations of Common Law in protecting /




improving environment
Private law =protector of private interests not
environment
Environment degradation persists
Wider public interest need to be taken into account +
ecological interests and interests of non –
landowners and of future generations
Environmental interest lacks standing!