Common law is case law made by judges


Common law is case law made by Judges which establishes legal precedents arising from disputes between one person and another [1]. It differs from statutory law which is made by Parliament and sets out measures for the courts to follow. Common law is ‘Judge made’ rather than statue law [2]. A Tort is a wrong which results when there is a breach of civil duty owed to someone else. Torts have been used to control environmental pollution although the environment is not their primary purpose which is the protection of people and private property [2].

The development of modern torts grew at great pace during the 19th century [3]. Common law looks at the reasonableness of actions and where actions are judged to be against established rights, the courts can impose civil sanctions such as injunctions, compensatory damages or court orders [2]. In providing environmental protection the common law actions (environmental torts) which are most relevant are the torts of nuisance, trespass, negligence and the rule in Rylands v Fletcher [2]. In addition there are rights of civil action under statute which give rise to liability under the principle of breach of statutory duty therefore are not strictly tort but treated here as a related concept [2].

Each environmental tort has its own area of application and general principles that have been established and have evolved through a series of previous cases [2]. Of the four torts, nuisance appears to be the most popular ground of action [2]. The other tool in place to deal with environmental pollution is legislation which are acts passed through Parliament. With increasing environmental concerns regarding the impact pollution can have on human health, environmental legislation has dramatically increased over time. This second mechanism in place to deal with environmental pollution creates clear rules which must be adhered to such as setting out limits for specific substances in different environments which must not be exceeded [2]. This essay will discuss whether or not the Judiciary prefers to control environmental pollution through legalisation rather than developing the common law further.

Common law

Common law is an important tool for environmental pressure groups or individuals affected by environmental damage where no statutory legislation exists to cover an instance where an act of pollution has taken place [2]. Common law can be an important basis of action in several circumstances as it has the capacity to react quickly and flexibly to redress issues where individuals have been affected by environmental damage and for whom there is no relief under current statutory provisions [2]. Common law also benefits enforcement agencies such as the Environmental Agency where a prosecution under a statutory provision may not be possible perhaps due to a lack of burden of proof. Common law also provides a mechanism of environmental protection where no legislation exists or that prosecution is not possible under a statutory provision [2].

Common law can provide a back up should the statute laws fail for example in the case of the National Rivers Authority (NRA) and Anglers Co-operative association v Clark (1994). In this case a pig farmer (Mr Clarke) released three million gallons of slurry into a 75km stretch of the river Sapiston and Little Ouse which subsequently destroyed a fishery [2]. The NRA attempted to prosecute the pig farmer under sections of the Control of Pollution act 1974 and the Salmon and Freshwater Fisheries act of 1975 [2]. The court of appeal ruled that the farmer could not be held liable as his knowledge of the discharge could not be proven [2]. The NRA and the Anglers association who were representing the interests of the local angling club proceeded with a civil action against Mr Clarke [2]. The civil action case was successful and the NRA was awarded £90,000 in legal expenses and to investigate the extent of damage and restock the fishery the local angling club received £8,450 in damages [2]. In this case the common law provided a secondary option after the legislation in place had failed and inadvertently led to the protection of the environment. This case shows that the common law does have its advantages and shows that environmental legislation can sometimes fail. In this legalisation failed because it could not be proven that the Mr Clarke had knowingly caused harm [2].

Development of the common law

The case of Ryland and Fletcher is thought of as one of the best attempts of early 19th Century English judges to build up the law of negligence thus developing the common law. The case imposes the principle of strict but not absolute liability for damage caused by the escape of dangerous things [2]. This was a land mark case which further developed the common law. The outcome of this case was significant in that it enabled judges to impose strict liability on defendants without any need to prove negligence [2]. The claimant will succeed if he or she establishes a casual connection between the escape and the damage sustained [2]. The case of Ryland and Fletcher demonstrates that the development of the common law can provide solutions for environmental pollution and remain useful for many years and is one argument for its continued development.

This leads on to the case of Cambridge water co v Eastern Counties Leather plc which was a very important case in the interpretation and application of the common law [2]. The following is adapted from Wolf and Stanley, 2010. This case presented an opportunity to further develop the common law. The case arose when Cambridge Water Company purchased a piece of land formerly used as a paper mill which had in its possession a license to abstract water [2]. Cambridge Water began to extract water for public consumption in 1979. Unknown to Cambridge water was that the water had been contaminated from the solvents (PCE and TCE) leached from the tannery between 1950 and 1976 when it was operated by Eastern Counties Leather plc [2]. This historic pollution only became a problem with the introduction of tighter drinking water standards implemented through EC directive [2]. This directive lowered the concentration of PCE and TCE allowed in drinking water [2]. As this was historic pollution litigation for this case could not be carried out under the Water Resources Act 1991 so Cambridge Water Company began civil proceedings against Eastern Counties Leather using the common law torts nuisance, negligence and the rule in Rylands and Fletcher [2].

At first instance the claims in nuisance and negligence failed in the high court because it was held that ECL could not in 1976 reasonably have foreseen that the spillage of PCE would cause damage of the type which occurred to Cambridge Water [2]. The claim under Rylands v Fletcher was dismissed on the ground that the storage of PCE at the tannery was a natural use of land [3].

This decision made by the high court was over turned by the court of appeal and Cambridge water was awarded £1 million in damages and held that Eastern Counties Leather plc had interfered with Cambridge Water Company’s natural right to abstract naturally occurring water [2]. Eastern Counties Leather plc successfully appealed to the House of Lords, were they were unanimously not found liable, on the basis of a lack of foreseeability with regards to strict liability as outlined in Rylands v. Fletcher [2].

This case demonstrates the Judiciaries lack of willingness to develop the common law further e.g. create a common law principle such as the rule in Rylands v Flecher. Instead the House of Lords stated that there was so much well informed and structured legalisation put into place for environmental protection that there was less need for the courts to develop a common law principle to achieve the same end [2]. Although this case did free up the restriction on liability under the Rylands v Fletcher tort because the House of Lords observed that the storage of substantial quantities of chemicals on industrial land should be regarded as a case of non natural use [2]. This case also shows how the judiciary do not like retrospective liability as the requirement of foreseeability was introduced [2].

Perceived limitations of the common law

Common law does have its limitations as discussed in Wolf and Stanley, 2010. The torts are essentially individualistic as they provide for the individual rather than the public in comparision to environmental legalisation which primarily focuses on the protection of the environment and not on the protection of private rights for the benefits of the public [2]. Torts cannot prevent environmental pollution from occurring as they are a reactive mechanism used to seek damages after the incident has occurred [3]. The cost of financing common law is often prohibitive where legal aid is not available and it’s only the wealthy who can take action such as Roger Daltry in the case of Beju-Bop v Home Farm Ltd (1990) [2].

The case of Hunter v Canary Wharf Ltd [1997] 2 All ER 426 shows another limitation in the use of common law for environmental protection. This case stated that a nuisance must affect the land belonging to the claimant or which the claimant has a property interest [2]. In this case local residents sued on action of nuisance by Canary wharf’s tower sheer size and metallic construction causing disruption of television signals [2].The decision by the House of Lords rejected the private nuisance actions by the residents as they had no legal right as owners or tenants of the land [2]. The outcome of this case limits the ability of individuals or groups without an interest in the land to bring an action in nuisance.

The biggest disadvantage of common law is that it can only be used in the event of pollution and cannot not prevent pollution from occurring to begin with [4]. This is again related to its original purpose of protecting private property and not the environment [2].

Advantages of Legalisation

Modern pollution legislation such as the Environmental Protection Act 1990 and the Water Resources Act 1991 are often referred to as command and control regimes [2]. Pollution legislation is formed from acts of parliament which creates a broad framework for the control of pollutants [1]. They can be much more specific than common law when it comes to environmental pollution. Under common law nuisance is the most commonly used tort but as it involves an unreasonable interferences with another’s use and enjoyment of rights in land [3]. it is difficult to define what is a reasonable use of the land and is open to interpretation. While Legislation sets specific numerical values to the maximum accepted pollutant concentration for different environments, this enables the legislation to be specific or provide a broad application. For instance the Water Resources Act of 1991 was simply concerned with water while the Environmental Pollution Act 1990 regulates discharges from polluting activities into air, water and land [2]. While specific pollution legislation is focused on environmental protection the common law is concerned with the protection of private rights.

In the case of National Rivers Authority v Yorkshire Water Services Ltd [1995] 1 AC 444 a large quantity of isooctonal was spilt into the sewer [5].The chemical passed through sewerage system and was transmitted by sewers to a treatment works which was operated by a sewerage works operated by Yorkshire Water Services Ltd [5]. The contamination severely reduced the capacity of the sewage treatment works to deal with effluent [5].The resulted in the discharges to controlled waters to breach its consent for the treatment works [5]. The National Rivers Authority brought proceedings against the Yorkshire water for the discharge breaching its effluent limit [5].This is an example of how legislation can be an effective tool in pollution control as it is easy to determine when damage is being caused as it is a numerical vale to compared to common law which would be open to debate on when reasonable.

The case of Circular Facilities (London) Ltd v Sevenoaks District Council ([2005] EWHC 865) is a good example where environmental legislation provides a solution to pollution although it does demonstrate the difficulty in claiming the costs back [2]. In this case the contaminated land regime contained in Part IIA of the Environmental Protection Act 1990 was used [6]. The site in question had formerly been a brickworks on which clay pits had been dug these were filled in during the 60’s and 70’s by one owner then a subsequent owner Mr Scott who in 1979 sold the land to Circular Facilities [6]. The case arose when Sevenoaks District Council issued a remediation with Circular Facilities due to methane gas escape at a housing development built by Circular Facilities [6]. Circular facilities appealed against the remediation notice served by sevenoaks district council [6]. The council carried out emergency remediation on the site and planned to reclaim the costs from Circular Facilities once the appeal had been determined. Circular Facilities tried to argue that they were not “causers or knowing permitters" [6]. This changed when evidence of a 1978 geotechnical report submitted by Mr Scott as part of a 1980 planning application on behalf of Circular Facilities [6]. This said that black organic material had been found a little below ground level in a trial pit on the site and that water entering the pit had “gases bubbling through it" [6]. The court therefore concluded that this report “must have been available to Circular Facilities" [6]. Circular appealed to the High Court, which held that the magistrates’ court had not explained on what basis it had concluded that Circular had been aware of the 1978 report, and ordered a retrial [6]. Although re trial never took place as Sevenoaks District Council withdrew its remediation notice and agreed to settle the case with Circular [6]. It was believed this was due to financial issues [6].

It was confirmed by Newman J that the knowledge of the presence of the substance alone which is later found to contaminate is all that is required to knowingly permit [6]. This favours the enforcing authority in the difficult task of proving liability [2]. This case has shown that there is a fault with Part IIA of the Environmental Protection Act 1990 as it didn’t allow Sevenoaks to require that Circular Facilities to disclose documents that may have proven knowledge [2].

Disadvantages of legislation

The fate of environmental litigation in Budden v BP Oil and Shell Oil (1980) 124 SJ 376 amply demonstrates the inherent difficulties of actions in nuisance and negligence for damage suffered as a result of environmental harm [7]. The plaintiff claimed damages, alleging nuisance and negligence, for harm alleged to have been suffered as a result of lead pollution caused by emissions from petrol during the refining process [7]. The defendants applied to have the action struck out as disclosing no reasonable cause of action. It was clear from the evidence that the plaintiff had suffered no more harm than any other small child living near a main road might suffer and thus no claim in nuisance could lie [7]. The court of appeal rule accepted the argument put forward by the defendants that they had complied with the relevant statutory provision under the Control of Pollution Act 1974 thus the statutory standard establishes the common law standard [2]. Thus the action in negligence also failed because the defendant companies had at all times complied with the regulations laid down by the secretary of state under the Control of Pollution Act 1974 [2]. This case shows how legislation can have an adverse effect on pollution control because if legislation sets a certain standard that turns out to be too great and leads to environmental damage then the common law cannot be used as an alternative.


The development of the law of torts has been ad hoc and is largely dependent on the claimant having an interest in the land to protect and the financial resources to engage litigation [2]. Lord Goff of Chieveley said that although environmental protection was a matter of crucial importance, the role of the courts is very much secondary to the legislature [4]. Legacy remains that environmental protection is perhaps too big a subject for the common law to be truly innovative and that the large difficult long term reforms must be left to the legislators [4]. As professor Cocks put it the environment has never found a judicial champion or sponsor in the way that negligence has in Lord Atkins [4]. It has been suggested that tort law as a means of protection against environmental harms is seemingly on the wane [4]. If statutory protections systems did everything that they should, then role of the common law would dwindle [4]. In reality that such systems are incomplete and cannot prevent all environmental harm [4]. The common law appears to work best when it is on familiar territory dealing with those matters which have always been the familiar staples of tort lawyers such as noise, dust, smells etc [4]. The challenge is whether it can adapt to address those issues which at present appear to give it so much difficulty such as when contamination constitutes actionable damage, causation problems where the mechanisms for harm may be unclear and whether the risk of harm is a matter for the common law [4].

In my opinion I believe that the common law does have an important role to play in environmental protection but neither common law nor legislation alone can perform this role alone simply due to their limitations. Where one has a limitation the other can often provide a solution. Overall there have been cases which could have developed the common law such as the Cambridge water case but as stated in Wolf and Stanley 2010 it would be unfair and to penalise people and impose retrospective liability fro operation there were considered normal at the relevant time and in my opinion it simple wouldn’t be possible.