ENVIRONMENTAL LAW Common Law II: Nuisance and The Rule in Rylands v Fletcher. Limitations of the Common Law

Environmental Law 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 ‘...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 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 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 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 non-natural user of land notwithstanding that he had exercised all due care to prevent the escape from occurring

Environmental Law 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 non-natural use even in an industrial complex.

Environmental Law 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 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 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 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 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!