“This conception is implicit in all the decisions which impose liability only where the defendant has "caused or continued" the nuisance. We may eliminate in this case "caused": what is the meaning of "continued"? In the context in which it is used “continued” must indicate mere passive continuance. If a man uses on premises something which he found there, and which itself causes a nuisance by noise, vibration, smell or fumes, he is himself in continuing to bring into existence the noise, vibration, etc., causing a nuisance. Continuing in this sense and causing are the same thing. It seems to me clear that if a man permits an offensive thing on his premises to continue to offend, that is if he knows that it is operating offensively, is able to prevent it and omits to prevent it he is permitting the nuisance to continue, in other words he is continuing it.”
“The forms which nuisance may take are protean. Certain classifications are possible, but many reported cases are no more than illustrations of particular matters of fact which have been held to be nuisances.”
“However this may be, the true view is, I think, that the occupier of land is liable for a nuisance existing on his property to the extent that he can reasonably abate it, even though he neither created it nor received any benefit from it. It is enough if he permitted it to continue after he knew or ought to have known of its existence. To this extent, but to no greater extent, he must be proved to have adopted the act of the creator of the nuisance... But the respondents had, as I have indicated, or ought to have had knowledge of the danger, and could have prevented the danger if they had acted reasonably. For this I think they were liable - not because they were negligent, though it may be that they were, but for nuisance because with knowledge that a state of things existed which might at any time give rise to a nuisance they took no steps to remedy that state of affairs.”
“However there remains for consideration a point adumbrated in the course of argument, which is relevant to liability in nuisance as well as under the rule in Rylands v. Fletcher. It appears that, in the present case, pools of neat P.C.E. are still in existence at the base of the chalk aquifer beneath E.C.L.'s premises, and the escape of dissolved phase P.C.E. from E.C.L.'s land is continuing to the present day. On this basis it can be argued that, since it has become known that P.C.E., if it escapes, is capable of causing damage by rendering water available at boreholes unsaleable for domestic purposes, E.C.L. could be held liable, in nuisance or under the rule in Rylands v. Fletcher, in respect of damage caused by the continuing escape of P.C.E. from its land occurring at any time after such damage had become foreseeable by E.C.L. For my part, I do not consider that such an argument is well founded. Here we are faced with a situation where the substance in question, P.C.E., has so travelled down through the drift and the chalk aquifer beneath E.C.L.'s premises that it has passed beyond the control of E.C.L. To impose strict liability on E.C.L. in these circumstances, either as the creator of a nuisance or under the rule in Rylands v. Fletcher, on the ground that it has subsequently become reasonably foreseeable that the P.C.E. may, if it escapes, cause damage, appears to me to go beyond the scope of the regimes imposed under either of these two related heads of liability. This is because when E.C.L. created the conditions which have ultimately led to the present state of affairs - whether by bringing the P.C.E. in question onto its land, or by retaining it there, or by using it in its tanning process - it could not possibly have foreseen that damage of the type now complained of might be caused thereby. Indeed, long before the relevant legislation came into force, the P.C.E. had become irretrievably lost in the ground below. In such circumstances, I do not consider that E.C.L. should be under any greater liability than that imposed for negligence. At best, if the case is regarded as one of nuisance, it should be treated no differently from, for example, the case of the landslip in Leakey v. National Trust for Places of Historic Interest or National Beauty [1980] Q.B. 485.”
“In my opinion the English approach as disclosed by the authorities serves to emphasise the point that we are concerned here essentially with the law of property. The function of the tort, in the context of private nuisance, is to control the activities of the owner or occupier of property within the boundaries of his own land which may harm the interests of the owner or occupier of other land. The tort of negligence is also, in a very real sense, concerned with the relationship between neighbours. But, as can be seen clearly since the development of this branch of the law in Donoghue v. Stevenson [1932] A.C. 562, the answer to the question "who in law is my neighbour?" is a different one from that which would be given in the context of property law…”
“33. Approaching the present case in the light of those governing concepts and the judge's findings, I think that there was a continuing nuisance during Flecksun's ownership until at least the completion of the underpinning and the piling in July 1992. It matters not that further cracking of the superstructure may not have occurred after March 1990. The encroachment of the roots was causing continuing damage to the land by dehydrating the soil and inhibiting rehydration. Damage consisting of impairment of the load-bearing qualities of residential land is, in my view, itself a nuisance. This is consistent with the opinions of Talbot J in the Masters case[1978] 1 QB 841 and the Court of Appeal in the instant case, although neither Talbot J nor Pill LJ analysed specifically what they regarded as a continuing nuisance. Cracking in the building was consequential. Having regard to the proximity of the plane tree to Delaware Mansions, a real risk of damage to the land and the foundations was foreseeable on the part of Westminster, as in effect the judge found. It is arguable that the cost of repairs to the cracking could have been recovered as soon as it became manifest. That point need not be decided, although I am disposed to think that a reasonable landowner would notify the controlling local authority or neighbour as soon as tree root damage was suspected. It is agreed that if the plane tree had been removed, the need to underpin would have been avoided and the total cost of repair to the building would have been only£14,000 (joint statement of facts and issues, paragraph 23). On the other hand the judge has found that, once the council declined to remove the tree, the underpinning and piling costs were reasonably incurred, despite the council's trench.”
“In my view, the basis for the liability of an occupier for a nuisance on his land is not his occupation as such. Rather it is that, by virtue of his occupation, an owner usually has it in his power to take the measures that are necessary to prevent or eliminate the nuisance. He has sufficient control over the hazard which constitutes the nuisance for it to be reasonable to make him liable for the foreseeable consequence of his failure to exercise that control so as to remove the hazard.”