The defendant had deposited coal wastes. When the river Taff flooded, the spoil heaps diverted the floods to damage the claimants’ homes. They appealed refusal of their claims in nuisance. The judge applied the common enemy rule: ‘an owner or occupier of land is entitled to use or develop his land so as to prevent flood waters coming on to his land. If in times of flood waters which would have entered his land in consequence damage another’s land – that does not provide a cause of action in nuisance.’ The cases established ‘a bias in favour of natural user, subject to its being no more than reasonably enjoyed; a bias (effectively a conclusive rule) against non-natural user where that involves the escape of something noxious onto a neighbour’s land; a bias against the harbouring of a danger, a hazard, on one’s own land whether the hazard is natural or man-made. And in no case will there be liability without reasonable foreseeability of damage. ‘ and ‘You are entitled to protect yourself against the common enemy’s incursions; but if the incursion upon your land has already happened or is about to happen, you may not export it to your neighbour. ‘ The defendant was not liable at common law. The claim pre-dated Human Rights law, and the common enemy rule, subject perhaps to exceptional instances, is in principle inoffensive to Article 8 and Article 1 of the First Protocol.
Laws LJ
[2004] EWCA Civ 892, [2005] Env LR6
Bailii
European Convention on Human Rights P1 A1 A8
England and Wales
Citing:
Cited – Sedleigh-Denfield v O’Callaghan HL 24-Jun-1940
Occupier Responsible for Nuisance in adopting it
A trespasser laid a drain along a ditch on the defendant’s land. Later the defendants came to use the drain themselves. A grate was misplaced by them so that in a heavy rainstorm, it became clogged with leaves, and water flowed over into the . .
Cited – Transco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
Cited – Leakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
Cited – Bamford v Turnley 2-Jul-1862
The defendant burned bricks on his land, causing a nuisance to his neighbours.
Held: It was no answer to an action for damages that he selected a proper place within his land for an activity which would interfere with a neighbour’s enjoyment . .
Cited – Trafford v Rex CEC 1832
Landowners next to the Mersey had raised the banks to prevent floodwaters coming on to their land. This raised the water level threatening a canal. The landowners appealed a conviction.
Held: A guilty verdict of guilty would only be . .
Cited – Farquharson v Farquharson 1741
‘It was found lawful for one to build a fence upon his own ground, by the side of a river, to prevent damage to his ground by the overflow of the river, though thereby a damage should happen to his neighbour by throwing the whole overflow in time of . .
Cited – Rex v The Commissioners of Sewers for the Levels of Pagham 1828
The court considered responsibility for the inroads of the sea. The Commissioners erected groynes and other works to defend the stretch of coast for which they were responsible against the sea’s encroachment. But the consequence was that the sea . .
Cited – Whalley v Lancs and Yorks Railway Co 1884
After heavy rain, water accumulated against the defendants’ railway embankment, endangering it. The defendants cut trenches in it to allow the water flowed through, where it then went on to the land of the plaintiff, on the far side of the . .
Cited – Rex v Trafford KBD 1831
The river Mersey and an associated brook overflowed their banks in wet weather at the place in question, and the waters went north and west over adjoining lands, at length flowing back into the Mersey. The affected landowners raised banks (referred . .
Cited – Hurdman v North Eastern Railway Co 1878
The defendants raised their land, so that the rain collected and penetrated an adjoining wall and ran into the plaintiff’s land, causing substantial damage.
Held: The heap or mound erected on the defendants’ land had to be considered as ‘an . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited by:
Cited – Anthony and others v The Coal Authority QBD 28-Jul-2005
The claimants lived adjacent to an old coal tip, which caught fire spontaneously and burned for three years. They claimed in nuisance. The defendant argued that the risk of spontaneous ombustion was not reasonable, and that the use was safe.
Cited – Lambert and Others v Barratt Homes Ltd (Manchester Division) and Another QBD 17-Feb-2009
The claimant sought damages in nuisance and negligence saying that in constructing a new housing estate, they had altered the land in such a way as to lead to the repeated flooding of their home.
Held: Both the developer and the council were . .
Cited – Lambert and Others v Barratt Homes Ltd and Another CA 16-Jun-2010
The claimants had bought houses from the first defendants, who in turn had bought the land from Rochdale, the second defendants. In preparing the land for construction the first defendants were said to have negligently filled in a drainage culvert . .
Cited – Lambert and Others v Barratt Homes Ltd and Another CA 16-Jun-2010
The claimants had bought houses from the first defendants, who in turn had bought the land from Rochdale, the second defendants. In preparing the land for construction the first defendants were said to have negligently filled in a drainage culvert . .
Lists of cited by and citing cases may be incomplete.
Nuisance, Human Rights
Leading Case
Updated: 11 November 2021; Ref: scu.199336