Question 1

Robert and Linda Snow moved in the winter of 2012 into a scenic riverside bungalow which featured a jetty where they moored their rowing boat. At the bottom of the long garden was a small group of allotments, provided for the last 30 years by

Avonmere District Council, where local residents can grow fruit, vegetables and flowers on small plots.

When spring arrived, they realized that Arthur, the allotment holder nearest to their garden, burned his refuse in a bonfire on the other side of their wall. Smoke and ash frequently blew into their garden. When they put out their garden furniture and sun canopies, they often became stained and smelly. The situation became even worse when Robert realized that someone on the allotment must be growing marijuana, the seeds of which had blown into his garden and self-seeded.

In 2014 their jetty became unusable when it was blocked by silt from a small industrial quarry upstream, ‘Rocks R Us’ having obtained planning permission to do so from Avonmere DC.

In 2015 Robert and Linda were horrified to realize that sewage was seeping into the basement of their bungalow. Neighbours told them that Avon Water has been failing for years to maintain the local sewage works for which they are responsible.

Advise Linda and Robert.

Outline

• Identify the areas of law involved. Although this is the Rylands v Fletcher chapter, there are also potential causes of action in nuisance, negligence and trespass which must be considered.
• Set out the actions which may be brought by each claimant and then apply appropriate legal rules and assess their likelihood of success. Don’t forget to consider defences.
• Brief conclusion

The majority of the causes of action in this problem appear to be linked to Snows’ property, therefore the areas of law involved are nuisance (private and public), Rylands v Fletcher and trespass to landbut negligence must also be considered.

We will assume that Linda and Robert have the requisite interest in land either as joint owners or joint tenants to bring an action in private nuisance (Hunter v Canary Wharf), R v F or trespass to land.

• Private Nuisance – define the tort

Snows v Arthur – re smoke and ash from bonfire; Arthur being the creator of the nuisance. This is affecting the use and enjoyment of property and causing property damage (St Helens Smelting v Tipping). This may be held to constitute private nuisance, more certainly if

Arthur is doing this maliciously (Christie v Davey).

Snows v Avonmere – Council landlord unlikely to be liable for tort of its tenant or licensee (Hussain v Lancaster CC).

The defence of prescription will not apply as private nuisance to the Snows has not continued for 20 years (Sturgis v Bridgeman)

Snows v Avon Water – re seeping of sewage. Marcic v Thames Water is relevant – a claim under ECHR or statutory scheme may be most appropriate.

• Public nuisance  - define the tort

Snows v Rocks – re blocking of the jetty. Tate and Lyle v GLC is applicable here. Have the Snows suffered special damage which is financially quantifiable? The planning permission element requires application of Coventry v Lawrence.

• Rylands v Fletcher

Snows v Arthur – Because of the element of escape of ash, RvF must beconsidered however it will fail on the element of non-natural user (Rickards v Lothian)

Snows v Avonmere, or grower of marijuana if identifiable - The fact that marijuana (cultivation illegal) is the source of the seeds, does not make its spread more likely to be non-natural user; it is basically a type of agriculture.

Snows v Avon Water – re seeping of sewage – not actionable because sewage works would be natural user of land (Transco)

• Negligence

Snows v Avon Water – re seeping of sewage. A possibility, as in Marcic

• Trespass to land

Snows v Arthur – re ash. Not actionable in trespass because indirect.

Snows v Avon Water – re seeping of sewage. Not actionable in trespass because indirect.

Question 2

What is the future of the tort in Rylands v Fletcher, following recent key cases?

For the general approach, refer to ‘Approaching an essay question’, above.

Outline

• Begin with an introduction to the tort in Rylands v Fletcher,  its components, history, function and relation to other torts particularly nuisance.
• Proceed to recent key cases, eg Cambridge Water v Eastern Counties Leather and Transco v Stockport MBC. In both, future developments for the tort were considered and determined.
• Conclude with your own prediction, supported by appropriate legal authority.

The detail for the first introductory paragraph can be found Chapter 12. It is important to stress its close relationship to nuisance – indeed following Cambridge Water it is clear that it is a sub-category of nuisance. It is a land-based tort and its particular characteristic is that can comprise a single rather than repeating event and it a tort of strict liability. Key cases are Rickards v Lothian, Read v Lyons and Mason v Levy Autoparts.

Cambridge Water is a key case because it was a modern opportunity for the House of Lords to consider and refine the concept of non-natural user. It also produced the surprising requirement for reasonable foreseeability of the type of damage.  In Transco, further definitions of non-natural user were produced. The House of Lords considered the Australian decision in Burnie Port Authority v General Jones where it was decided to absorb the tort into negligence.

The reasons given in Transco for not taking that option are significant and will inform your paragraph 3. They include the fact that such a decision would more appropriately be taken by parliament. It is a common law principle of long-standing and is still an important tool in environmental protection.