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Private nuisance and the rule in Rylands v Fletcher—common law liability for environmental harm

Private nuisanceRelevance of private nuisance in modern lawNotwithstanding the quite complex level of environmental regulation, private nuisance (along with other torts such as negligence and trespass) continues to play an important part in modern environmental law. This is unsurprising in a common law jurisdiction where the judiciary has a central role in the constitution. Also, some environmental issues fall outside the regulatory regimes. For instance, the statutory nuisance regime under Part 3 of the Environmental Protection Act 1990 (EPA 1990) only covers those environmental nuisances listed in EPA 1990, s 79(1) but if the environmental harm has abated there could well remain a justifiable claim in damages for past nuisance which is not available under the statutory environmental protection systems. The tort of private nuisance is also important because recent legislation has, following earlier patterns of legislative reform, continued to adopt the meaning and definition of common law nuisance in for example the Police, Sentencing and Courts Act 2022 (PSCA 2022) but also in the Anti-Social Behaviour Act 2003 and...

Environmental issues in property transactions—acting for a buyer

Environmental issues in property transactions—acting for a buyer Buyer beware An innocent buyer can inherit significant environmental liabilities in relation to land and buildings. ‘Caveat emptor’, meaning ‘let the buyer beware’, is a common law principle meaning the seller is under no duty to disclose material facts to a prospective buyer. See Practice Notes: Property—enquiries before contract and Misrepresentation, misstatement and non-disclosure in property matters. The buyer must therefore make its own searches, enquiries and inspections before entering into a contract, to find out the information it requires about the property. See Practice Notes: Pre-contract searches and Types of environmental searches and investigations. Contaminated land Clean up of contaminated land can include very high costs for land remediation, running into several million pounds for liabilities associated with groundwater contamination. It can also result in property blight and frustrate the property transaction. The local authority has a statutory duty under Part IIA of the Environmental Protection Act 1990 (EPA 1990) to investigate and secure remediation of contaminated...

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Letter of claim—nuisance (flood)

Letter of claim—nuisance (flood) [ON THE HEADED NOTEPAPER OF CLAIMANT’S SOLICITORS] FAO [RELEVANT NAME] [NAME OF DEFENDANT OR DEFENDANT’S SOLICITOR IF KNOWN] [ADDRESS LINE 1] [ADDRESS LINE 2] [POSTCODE] [DATE] Dear [insert organisation name] [PROSPECTIVE CLAIMANT’S NAME] AND [PROSPECTIVE DEFENDANT’S NAME] Introduction [We write further to our letter dated [insert date] OR We write further to your letter dated [insert date]]. [As you know, we OR We] act on behalf of [insert client’s full name], whose address is [insert full address]. This is our client’s letter of claim sent in accordance with the Practice Direction Pre-Action Conduct and Protocols of the Civil Procedure Rules (the Practice Direction), a copy of which is enclosed for your ease of reference. We draw your attention to the final section of this letter which sets out the deadline by which your response is required, and the consequences of failing to respond properly within that time. [Your client should notify their insurer of this claim immediately. We would be grateful...

Letter of claim—nuisance (chemical contamination)

Letter of claim—nuisance (chemical contamination) [ON THE HEADED NOTEPAPER OF CLAIMANT’S SOLICITORS] FAO [RELEVANT NAME] [NAME OF DEFENDANT OR DEFENDANT’S SOLICITOR IF KNOWN] [ADDRESS LINE 1] [ADDRESS LINE 2] [POSTCODE] [DATE] Dear [insert organisation name] [PROSPECTIVE CLAIMANT’S NAME] AND [PROSPECTIVE DEFENDANT’S NAME] Introduction [We write further to our letter dated [insert date] OR We write further to your letter dated [insert date]]. [As you know, we OR We] act on behalf of [insert client’s full name], whose address is [insert full address]. This is our client’s letter of claim sent in accordance with the Practice Direction Pre-Action Conduct and Protocols of the Civil Procedure Rules (the Practice Direction), a copy of which is enclosed for your ease of reference. We draw your attention to the final section of this letter, which sets out the deadline by which your response is required, and the consequences of failing to respond properly within that time. [Your client should notify their insurer of this claim immediately. We would be...

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Where a builder working on property A causes damage to a neighbouring property, who is liable to the neighbour for that damage, the employer (who owns property A) or the builder?

Where a builder working on property A causes damage to a neighbouring property, who is liable to the neighbour for that damage, the employer (who owns property A) or the builder? If a builder causes physical damage to a neighbouring property then it is possible that both the employer (who owns the property on which the builder is working) and the builder would be directly liable to the owner of the adjourning damaged property. The basis for such liability can be in negligence, nuisance, disturbance of easements, or liability under the rule in Rylands v Fletcher which provides that a person who allows a dangerous element on their land which, if it escapes and damages a neighbour, is liable on a strict liability basis—it is not necessary to prove negligence on the part of the landowner from which has escaped the dangerous substance (see Practice Note: Private nuisance and the rule in Rylands v Fletcher—common law liability for environmental harm). Liability in negligence is established in...

If a sales agreement is silent as to environmental liabilities, what is the position? If an actionable nuisance comes to light after the property has been sold (such as escape of water onto neighbouring property) who is liable; (a) the party that caused the nuisance, or (b) the owner of the property at the time the nuisance is discovered? Is there a Precedent contract clause which states that the seller retains liability for actionable nuisance, if it can be shown that they caused the issue?

If a sales agreement is silent as to environmental liabilities, what is the position? If an actionable nuisance comes to light after the property has been sold (such as escape of water onto neighbouring property) who is liable; (a) the party that caused the nuisance, or (b) the owner of the property at the time the nuisance is discovered? Is there a Precedent contract clause which states that the seller retains liability for actionable nuisance, if it can be shown that they caused the issue? Position where the contract for sale is silent in relation to environmental liabilities If a contract for the sale of land is silent in relation to environmental liabilities, the position on who is liable depends on a number of factors such as the nature of the liability, who caused or knowingly permitted the issue and when it occurred. For example, there are several types of liability for land contamination including liability for contaminated land under Part IIA of the Environmental Protection...

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Environment weekly highlights—8 February 2018

This week’s edition of Environment highlights includes analysis from our PSL team of the new civil penalties regime for the enforcement of F-gas regulation from 1 April 2018. In addition we include news relating to approval of the reforms to the EU emissions trading system and publication of the UK Environmental Law Association report on post-Brexit environmental standard setting. This week we have published a new suite of flooding Practice Notes and a new Practice Note on the International Convention for the Prevention of Pollution from Ships 1973 as modified by the 1978 and 1997 Protocols. In addition we have updated existing Practice Notes on flooding and on Regulation (EC) 1013/2006 on shipments of waste.