Willis & Anor v Derwentside District Council

Strict liability under the rule in Rylands v Fletcher does not apply to naturally generated stythe gas arising from disused coal workings. A landowner who did not create a nuisance may nevertheless be liable in private nuisance after becoming aware, or when it ought reasonably to have become aware, of the escape. The duty is to take reasonable steps in all the circumstances to prevent or minimise the known risk. Those steps may include providing affected owners with information about the cause and proposed abatement of a dangerous escape, obtaining completion certification, and arranging appropriate monitoring and maintenance. The landowner is not a guarantor of the neighbouring land’s capital value, but abatement is incomplete where the remedial scheme is not appropriately certified and maintained.

The claimants owned a house and occupied adjoining land used for keeping animals. Carbon dioxide and oxygen-depleted stythe gas from disused coal workings escaped through the mouth of a drift and an underground drainage route from land acquired by the defendant council. The claim was brought in nuisance, negligence and under the rule in Rylands v Fletcher.

Remedial works substantially stopped the emissions, but the council did not obtain a completion certificate or follow the recommended monitoring and maintenance programme. The property remained un-mortgageable and un-saleable. The central issues were the applicable causes of action, the date when the council’s abatement duty arose, the losses caused by delay and inadequate communication, and whether reasonable abatement required certification and continuing monitoring.

1. Disposition. The claim under Rylands v Fletcher failed. The doctrine did not apply because mining activity was a natural use of land and the gas was generated naturally by the reaction of oxygen with carboniferous strata, rather than brought onto the land. The nuisance issues were determined in favour of the claimants in part.
2. Abatement duty. The council had not caused the escape. Its liability therefore depended on a failure to take reasonable steps after it knew or ought to have known of the nuisance. The duty arose in April 2006, when the dangerous emissions were reported to the council. Both the drift mouth and the underground drain were routes by which gas escaped from the council’s land, so each engaged the abatement duty once discovered.
3. Reasonableness. The court applied the approach in Leakey v National Trust. Relevant considerations included the extent and foreseeability of the risk, the possible damage, practicability, difficulty and cost of preventive measures, and the time available to act. The council’s delay while disputing responsibility was culpable, but the evidence did not establish that the deaths of the animals were caused by that delay. The disruption caused by the engineering works was, in the main, an ordinary consequence of reasonable abatement.
4. The council was liable for the claimants’ reasonable expenditure on expert advice. In a potentially asphyxiating and frightening nuisance, reasonable abatement steps included providing requested information about the cause and levels of the escape and the design of the remedial works.
5. Although the works had probably prevented any significant further escape, the council’s failure to obtain a satisfactory completion certificate and to commit to monitoring and maintenance in accordance with the Coal Authority’s recommendations meant that reasonable steps had not yet been completed. The capital-value loss was not quantified at this stage. The expert-advice loss and the further steps required for abatement were directed to inquiry, with further argument adjourned on the remedy in light of the undertaking offered by the council.