WATER POLLUTION AND NUISANCE

Summary of this section

(updated September 2025)

Contamination or pollution of water and private nuisance – its meaning – historical introduction – lack of clarity between trespass, nuisance and Rylands v. Fletcher – sewers and sewerage – anything which sensibly diminishes the purity of water – ‘standing’ and the claimant in private nuisance: the riparian owner – a ‘several’ fishery owner – is there a right of access to the beach and therefore bathing? – causation in nuisance where there are several tortfeasors (special rules)

Introduction

Little has changed over the decades when it comes to cases of water pollution and the consequences, whether connected with rivers, lakes or the sea.

In Goldsmid (1865), for instance, the increase in the number of homes locally gave rise to a corresponding increase in pollution of the water used domestically by the claimant.  The water became gradually more impure and unable to be used as drinking water and this also made fishing difficult or impossible.  The defendant argued that the cause of the pollution was the highly manured farmland uphill which gave rise to polluted groundwater. These are all very contemporary issues 120 years later.

The constituent elements of a claim for water pollution (which in this context of this website is concerned with its purity otherwise than in connection with siltation and especially as it may affect health) can be broken down into those parts which are considered in detail elsewhere in this website, such as who can constitute a claimant or who may be a defendant. However, it is convenient to summarise the main issues here, especially since there are some items which have clear historical roots connected with the law of nuisance which are only relevant to this section.  (Trespass is not a specific topic within this website.)

Liability in general

The courts consider water contamination a serious form of nuisance, falling within category 1. Even in United Utilities (2024), which admittedly concerned the extent of the defence of statutory authority, the court did not differentiate between whether or not the correct tort of action was trespass or nuisance.
As it was put in Jones (1911), anyone who turns contaminating material (such as sewage), or who allows it, once collected (such as in a sewer), to escape, so that the wind or current takes it into another person’s water, will be liable in trespass. Where damage is the result, then the outcome is liability under the principle in Rylands v. Fletcher or nuisance. Damage, as it was said in Jones, is anything which sensibly (‘seriously’) diminishes the purity of the water in question and which renders it sensibly less fit for the purposes for which the claimant is entitled to use it. So too in Foster (1906) the court did not clearly allocate a claim for damage by sewage to oyster beds on the foreshore to a particular action, whether trespass, private nuisance or under the principle in Rylands v. Fletcher. See also Nicholls (1931).
There may be circumstances in which the Leakey duty may give rise to liability, but such cases will be unusual. This page is concerned with category 1 liability. In Glossop (1879) the court noted that the pollution of the water in issue also rendered it “injurious to the health and comfort” of the occupants of the claimant’s house, which would invoke the principles relevant to category 2 , but such issues (such as ‘give and take’ and locality) were not contested.

Private nuisance

So far as private nuisance is concerned, some specific questions arise in relation to the position of the claimant and the claimant’s standing, private nuisance being a tort connected with land and rights over land and a claimant being required to have some possessory right in the way of ownership.
Thus, a riparian owner on the banks of a natural stream has right of property and is entitled to the flow of pure water past his land (such as the cotton mill owners whose machinery was affected by discharges of sulphuric acid from a colliery (Pennington, 1877)).

There is also the presumption that the bed of a non-tidal river is owned by the riparian owner up to the mid-way mark (“usque ad medium filum”) (relevant where contaminating material collects on a shoal in the middle of a river).

Where the banks of a river are let to tenants, as in other cases of nuisance, the question is the nature of the damage to the reversion. Where there is permanent damage to the reversion, then the riparian owner will have ‘standing’.

A claimant with a right to a several fishery, whether or not the claimant has a right to take out the fish, also has sufficient title to take proceedings in nuisance (Nicholls, 1931). Care must be taken since the claim in nuisance may be one which is relevant to a profit á prendre or easement.

Areas of uncertainty – public nuisance and causation

Whilst the general principles of both private and public nuisance apply to complaints about the contamination of water, there are certain specific issues which are contentious.

Thus, whilst it has authoritatively been said that contaminating material which comes from the sea cannot give rise to a private nuisance, only to a public nuisance (Esso Petroleum, 1952), this was not the agreed basis on which the parties proceeded in Jalla (2024).

Another issue of debate is whether or not a person who claims access to a beach can raise a complaint about pollution of the sea (Blundell, 1821).

As to causation, it has been argued that in a case of nuisance, a claimant does not have to prove that ‘but for’ the act or omission of the particular defendant, the damage in question would not have occurred. This may have significant ramifications since it has been held that where a claimant cannot attribute the degree to which more than one defendant has caused a nuisance, it is possible to make a claim against all of the defendants, even where they have not acted in concert. If this were not the case, then it is said a defendant would be able to argue that it cannot be liable for a nuisance if its act or omission (for instance by way of an ‘obstruction’ on the highway) only causes damage by reason of the act or omission of another party for which is not responsible and in respect of which it has no dealings.

Statutory authority / inconsistency

As to the defence of statutory authority / statutory inconsistency, the Supreme Court has now prescribed the circumstances in which this defence is available in water pollution cases involving sewage and the Water Industry Act 1991, strictly to those circumstances in which a claimant’s claim is a plea that the local sewerage system is inadequate (see Marcic, 2023 and United Utilities, 2024).