Rivers Nuisance & Escapes

Public Nuisance

There is a tort of public nuisance. It is also a crime at common law. However, it is quite narrow. It applies where there is an injury to a public benefit or interferance with the reasonable comfort and enjoyment of the public or a section of the public. Generally, only the Attorney General can take or consent to taking civil proceedings.

A person who has been injured in a particular way over and above that suffered by the general members of the public may take civil proceedings without the consent of the Attorney General. The injury or damage of that person must be appreciably more serious than that suffered by the general public.

It is possible that a person damaged by contamination from a  river might be able to sue by way of public nuisance. It is more likely that the person would make a claim by way of negligence, breach of statutory duty or interference with the right to bodily integrity.

It is conceivable that there may be  liability for public nuisance in relation to the pollution of rivers or something else arising in a similar context. However, in most cases a claim in nuisance or under modern environmental legislation which gives rights of compensation would be more appropriate.

Private / Ordinary Nuisance

The common law claim of nuisance protects owners in the enjoyment of their property. It may protect riparian rights. The owner or, more correctly, the occupier of the property may make a claim in nuisance where there is interference in the enjoyment and use of the land. It is very broad and covers everything from physical intrusions, intrusion of trees, smells, noises, et cetera. It covers anything which affects the senses or the nerves as well as other more tangible damage.

Where a person, often an adjoining owner, causes a nuisance to another owner in the use or employment of his land, he may be liable to pay compensation or be subject to an injunction at common law. Negligence on the part of the person concerned is not required.

Nuisance involves the courts balancing the actions of owners. Where the adjoining owner is doing something that is reasonable in its own interests, it is not necessarily a nuisance. To a large extent, people are expected to live and let live. However, if an action has no good reason or justification and causes interference, annoyance, et cetera to the adjoining owner, it is likely to constitute a nuisance.

The key element of the claim is that something that emanates from something under the control of the defendant, including, for example, the escape of water or other persistent ongoing action, it may be prevented by way of injunction or be the subject of compensation by way of damages.

Overlaps with other areas

In practice, many such claims would now be based on a multitude of grounds, including potential nuisance, negligence as well as legislation allowing for damages (compensation) for pollution based on a breach of modern environmental laws.

Some such claims may overlap with interference with riparian rights. For example, where a person upstream interferes with water flow upstream and causes flooding downstream, this may constitute nuisance and/or interference with riparian rights. Breach of riparian rights by way of polluting water would constitute a nuisance in many cases.

Equally, principles of negligence are applied between adjoining owners and owners in various parts of the river. Many claims are often discussed both in terms of negligence and riparian rights.

Nuisance Protecting Riparian Rights

A nuisance may arise where the flow of the river is interfered with, causing flooding and damage to lower-lying or downstream owners. There may also be liability in negligence.

At common law, the abstraction of water in an undefined channel is not subject to the riparian rights of others. Where it exists as an absolute property right of the landowner, the courts may be less willing to allow damages or to enjoin the action by way of injunction.

The occupier of land to water in defined channels, whether on the surface or underground, is not entitled to deprive the downstream occupier of its flow. A lower occupier was liable in nuisance for putting up an earth mound that interfered with the natural drainage of the plaintiff’s land. The mound had been made to facilitate landscaping of the defendant’s property with a view to complying with a planning requirement. The court found that the defendant acted unreasonably in putting up the earth mound as he was not required to do so and had alternative methods of screening.

The owner or occupier of the land only, may sue for private nuisance. This does not include family members. To an increasing extent, the courts are allowing persons who have no property interest in the land to be treated as occupiers.

Legal action may be taken by way of nuisance against a person who created it. This may be a landlord or tenant. The landlord may be liable where he is obliged to repair or has authorised a nuisance. Generally, it is the occupier, the person in possession of the land is liable.

Defences

There are some important defences which are relevant to actions taken by state bodies. Sometimes state bodies undertaking works are immunised by the legislation from liability for nuisance.

Even if this is not the case, things that are done and required by legislation which might otherwise constitute nuisance are usually immune from a claim for nuisance, unless they are done negligently. This is because in balancing the relevant rights and obligations of adjoining owners, including state bodies and statutory bodies, which are required to perform obligations in the public interest, the latter is usually deemed to act legitimately.

If, for example, however, the works are undertaken negligently, such as to cause damage, then the statutory body is liable by reason of negligence rather than the nuisance in itself.

Accumulations on Land

Apart from nuisance, it is a principle that where a person brings something onto land which involves the use of the land in a “non-natural” way, he is liable strictly for the consequences of its escape from his land, causing damage to others. There is a liability at common law when an owner accumulates something that is not part of the land in its natural state, on land which causes damage and loss to other owners when it escapes. The owner who has accumulated the dangerous thing which may cause damage if it escapes has strict liability for the consequence of escape.

The principle arises from a famous case where a defendant built a reservoir to supply water to a mill on his land. The landowner was not negligent. However, it escaped and damaged the adjoining mine owned by the claimant. Although there was no negligence, the court found that when a person brings onto land or collects and accumulates something likely to do damage if it escapes,  he is presumptively answerable for all the damage and loss that is a natural consequence of this escape.

An owner of land who uses it in a natural manner without negligence or wilfulness is not liable at common law for escapes of water which cause damage to a neighbour’s land. The higher-level owner has the right to have the water which falls on his land discharged onto the contiguous lower land of his neighbour.

Natural Use

The above “strict” liability applies where the use is not natural. Cases differ as to what is and is not natural for this purpose. It must not be the ordinary use of land or such use that benefits the general public or for the general benefit of the community.

Nonnatural uses in this context would include industrial large-scale use and action as opposed to ordinary agricultural or other practices. The courts make a judgement as to what is not non-natural use in accordance with ordinary practice and changing times. In recent times, some quasi-industrial and commercial uses have been held to be natural.

This rule can be of relevance in the context of water flow. The lower-level owner generally has no right against the higher-level owner for water inundation caused by nature. However, if there is a non-natural use (e.g. industrial) involving the accumulation of water, followed by sudden escape and damage, there is likely to be strict liability for its consequences under the rule.

The principal may apply to the accumulation of water bodies on the land as in the original case. Non-natural use implies some special use bringing increased danger over and above, say, domestic or agricultural use. It is sometimes said to be excessive or extraordinary use. Carrying water in large quantities in mains can be a nonnatural use. It is argued that the drainage of bogs is subject to the rule where it is done commercially

There is a defence in relation to a claim in nuisance and the above principle for a so-called act of God. This applies to extreme circumstances such as a violent storm. In a case concerning Hurricane Charlie, where flooding occurred, the defence was available. Actions authorised by a State body may be immunised from liability under the principle.