Leakey v National Trust [1980] QB 485 (CA).

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Last modified: 28/05/19 Author: In-house law team

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Landowners in nuisance, and the knowledge of a danger to neighbours caused by natural deterioration of their property; The extent of the landowner’s duty to take reasonable steps to avert this danger.

Facts.

The claimant built two houses at the foot of a large hill on the defendant’s land.  Over a long period of time, soil and rubble had continuously, but slowly, fallen from the mound onto the claimant’s properties, and onto their land, as a result of the natural process of erosion.  After a very dry summer a large crack appeared in the surface of the mound, and the claimants drew the defendant’s attention to the danger caused by a major fall of soil.  The defendants denied any responsibility for the danger, arguing that it was an entirely natural process.  Shortly after this, a large amount of soil and tree stumps fell from the mound onto the claimant’s land, and the claimants brought an action in nuisance as a result of the damage done to their land and property and their interest in the use of their land being interfered with by virtue of the defendant’s failure to take steps to resolve this nuisance.  At first instance, it was held that the defendants were liable in nuisance, and damages were awarded.  The defendant’s appealed against this decision to the Court of Appeal.

Issues.

The first issue was, is a landowner liable in nuisance to their neighbour for a natural hazard occurring on their land which they have failed to address, or are landowners responsible only for man-made hazards?  Following this, if a landowner is liable to their neighbour for natural hazards, what is the extent of their liability, and what steps are required to be taken to avoid liability in nuisance for these natural hazards?

Held.

The defendant’s appeal was dismissed, and the Court of Appeal held that landowners are indeed liable for nuisances caused by natural causes such as weathering which occur on their land, and which they have knowledge of, as long as they fail to take reasonable steps to bring this nuisance to an end.

In this case, the defendants had actual knowledge of the nuisance after having been alerted to the danger by the claimants, and they had failed to take any steps whatsoever to abate this nuisance, going so far as to deny their responsibility for it.  The duty that lies on a defendant in these circumstances is not necessarily to cure the nuisance (which may be impossible) but to take reasonable steps to end the nuisance.  What is reasonable in each case depends on the circumstances, including the defendant’s resources, physical capacity, and the practicality of the remedies which might be required to be applied to bring the nuisance to an end (per Cummings-Bruce LJ at p494).  Whilst the defendant’s argued that engaging in remedial matters in this case was impractical, and would result in them incurring unreasonable costs outside of all proportion to the damage done, this was not in issue, as the defendants had in fact failed to take any action at all, and had denied all responsibility when being asked by the claimants to resolve the nuisance.

Criticism of this case can be made in that the rule appears to impose a potentially extremely wide scope of liability on landowners.  This was a point raised by counsel for the defendants, who also noted that the decision would appear to impose greater liability in nuisance for an omission, or failure to take steps to correct a hazard that was no fault of their own than arose in the analogous law of negligence.   In other words, the rule imposes liability on those landowners for entirely natural events outside of their control.  Unfortunately for landowners however, this has never prevented liability in nuisance according to the rule in Rylands v Fletcher (1868) LR 3 HL 330 in which the “strict liability” of a defendant in nuisance where there has been an accumulation of a hazard on a defendant’s land, and an escape of this thing onto a neighbours land, was established.  Applying Rylands v Fletcher the same result should logically apply to a defendant who has failed to take steps to arrest a nuisance which has arisen on their land as a result of natural processes.

Furthermore, the defendants are liable only in so far as they fail to take “reasonable steps” to resolve the nuisance once they have become aware of it (either actually or constructively).  In circumstances in which there is little to be done and in which resolving the nuisance would be impossible, it is necessary only for the defendant to do what is reasonable within their power to resolve this difficulty (but it is not acceptable to do nothing, and deny responsibility for the nuisance entirely).  Whilst this might be said to protect the defendant landowner from successful claims in nuisance, the landowner is still required by law to take steps to deal with what would otherwise be regarded as an unfortunate event caused by natural causes.  This is all the more so considering the fact that it is no defence for a landowner to argue that the defendant “came to the nuisance” voluntarily as determined in both Sturges v Bridgman (1879) 11 Ch D 852 (CA)and in Miller v Jackson [1977] 3 WLR 20 (CA).  Given this, it is difficult for landowners to avoid liability in these circumstances, and the law might be argued to be aligned too far in the favour of the landowner’s neighbours who are likely to succeed in nuisance.

Regardless of these arguments, the rule determined in Leakey can be regarded, in summary as providing that a defendant landowner is liable for nuisance caused by natural causes on their land as long as they either knew, or ought to have known of the hazard, and that they then failed to take reasonable steps in the circumstances to bring the nuisance to an end.

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