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Private Nuisance in the House of Lords: Back to Basics

RECENT YEARS have provided the House of Lords with several opportunities to work through the contemporary role of private nuisance and the rule in Rylands v Fletcher:1 Cambridge Water Co Ltd v Eastern Counties Leather plc,2 Hunter v Canary Wharf Ltd,3 Baxter v Camden LBC,4 and Delaware Mansions Ltd v Westminster CC 5 each addressed different aspects of these torts. 2003 added two further House of Lords decisions to the list: Marcic v Thames Water Utilities Ltd 6 and Transco plc v Stockport MBC.7 As one might expect in an area subject to so much high level judicial attention, private nuisance and the rule in Rylands v Fletcher have been under considerable pressure. Three issues, which have resurfaced once again in these most recent cases, have been repeatedly addressed in the case-law. First, the absorption of the rule in Rylands v Fletcher into the more dominant tort of negligence has been much discussed, and it should be recalled that nuisance more generally has often been vulnerable to fault-based analysis.8 Secondly, the Human Rights Act 1998 has, as in other areas of tort law, reopened questions that had seemed to be resolved. Thirdly, many of the situations that are most likely to give rise to common law nuisances are subject to pollution control or development planning regimes, and the relationship between private nuisance and statute or regulation can be fraught.