Contamination of land

Simon Tolson explains the Rylands rule - where users of land must ensure toxins do not leak on to neighbouring land.

The pollution of someone's land from adjoining land was thought to be a strict liability offence - without proof of fault - under the Rylands v Fletcher rule ⁽¹⁾. Recent case law has changed this. Now, those claiming their land has been polluted must prove the contaminator knew it was causing the pollution.

A party responsible for contaminating land can also be prosecuted on grounds of nuisance, where there is interference with another's use of land; negligence, where a breach of a duty of care owed to the injured party must be shown; and trespass. But, where possible, claimants have used the rule in Rylands v Fletcher because it can be a faster form of redress.

The Rylands v Fletcher rule has been applied to the escape of many substances, provided that the use that caused the contamination was "non-natural". The term non-natural refers to the storing of substances not "naturally" kept on land.

The non-natural matter must escape from the land. Escape can take various forms, including seepage to ground water through, say, defective tanking. Proof that the contractor was aware of the contamination was not needed in the Rylands case. So, once the presence and escape of non-natural contamination was proved, liability was established.

1. 1868 LR 3 HL 330

Then came the seminal House of Lords decision in Cambridge Water Company v Eastern Counties Leather ⁽²⁾. The water firm supplied an area of Cambridgeshire via a borehole in an aquifer. The water in the borehole was found to be contaminated by substances, including a chlorinated solvent - PCE. The PCE came from the tannery and a claim was made against the firm in nuisance and under Rylands. When the case was heard in the High Court, the court rejected liability under the Rylands rule, saying the tannery's premises were a natural use of land.

The Court of Appeal then found that the rule in Rylands was not applicable. It held that the rule makes a person liable for the event of an escape rather than for actions; but, in the Cambridge case, liability attached because the leather firm spilled PCE. The PCE did not escape because of cracks in a storage tank.

The House of Lords reversed the Court of Appeal's £1m damages award against the tannery. The Lords said the Court of Appeal was wrong to find that it was not necessary to show that the defendant could have foreseen the possibility that ground water would be polluted at the time of the event that led to the pollution. So, foreseeability of harm was needed, not directness of consequences. The Lords held that foreseeability of damage was a prerequisite of liability in Rylands. Liability arose only if the defendant knew, or ought to have foreseen, that those things might, if they escaped, cause damage. In other words, the same tests that applied in nuisance and negligence.

The rule is far from dead because the Lords accepted that all Rylands v Fletcher did was to apply a general rule of strict liability and nuisance to situations where there was a claim for damages for an isolated escape rather than the more usual ongoing state of affairs.

The rule still has a role as there are clearly instances where fault-based torts such as nuisance are able to co-exist with a strict liability-based tort such as Rylands.The judgment has, however, tightened the circumstances in which a "contaminator" can be held strictly liable for the contamination of land. In most cases, it would now seem that a claimant has to prove likelihood or real possibility of escape and harm, previously thought unnecessary.

2. (1994) 2 WLR 53