INTRODUCTION
1. Where there is a naturally occurring nuisance on a landowner’s land it is now well established that he will owe a “measured duty of care” to adjoining landowners who are affected by it.
2. What is meant by a “measured duty of care” in broad terms is a duty that reflects the particular circumstances of all the parties in the case (e.g. their financial positions). The duty can fall well short of actually abating the nuisance and carrying out expensive remedial works. In Holbeck Hall Hotel Ltd. and Another v Scarborough Borough Council [2000] 2 W.L.R. 1396 at [54] Stuart-Smith LJ said “In considering the scope of the measured duty of care, the courts are still in relatively uncharted waters.”
3. What will constitute a natural nuisance is a separate question altogether than that addressed here. In Read v Lyons & J Lyons & Co Ltd [1947] AC 156 at 166 the judge said: “I confess to finding this test of ‘non-natural’ user… difficult to apply.” This reflected attempts by counsel to make some division of principle based on natural / non-natural nuisance. But now we were told by Parker LJ in Green v Lord Somerleyton [2003] EWCA Civ 198 “in the context of the English landscape a distinction between ‘natural’ and ‘artificial’ features is an inherently uncertain foundation on which to rest a decision as to the existence of liability in nuisance.”
4. The difference between the two, it is suggested, is the extent of the duty of care. A person who has, by his or her own agency, brought about reasonably foreseeable harm will be liable for it. But the decisions of the courts that are outlined below, have proceeded on the basis that the duty of care in cases of naturally occurring nuisance must reflect the fact that there has been no originating misfeasance: the duty has been forced upon them. Liability is based on the fact of adoption or continuance of a nuisance on the land.
5. I will first chart the evolution of the measured duty of care in the early cases and then go on to consider more recent decisions where the principle has been applied. Finally, I will attempt to summarise the key principles that can be derived form the jurisprudence in order to attempt to answer the question posed: what steps will satisfy the measured duty of care?
HISTORICAL EVOLUTION
The Victorian position
6. In the Victorian times the common law was clear. Where a nuisance occurred naturally the landowner needed only to inform the victim of the situation and allow him access to abate it (or not) as he wished.
7. However, in the first part of the 20th century the law was turned on its head. As a Professor Goodhart said in (1930) 4 CLJ 13 (“Liability for Things Naturally on the Land”): “An artificial pond on my land becomes stagnant and infects the neighbourhood. I am liable. A natural pond becomes stagnant. May I sit by and do nothing?” The distinction had become unsustainable.
Sedleigh-Denfield v O’Callaghan [1940] AC 880
8. In Sedleigh-Denfield trespassers had laid a pipe designed to take away rainwater in a ditch on the defendant’s land. They had failed to place a grid on the end of the pipe to prevent it from becoming blocked with leaves and sticks. It rained heavily in 1937, the pipe became blocked and the defendant’s land was damaged. Viscount Maugham held the defendant’s liable for the damage caused. In so doing he used the language of negligence at p. 894 in that the defendants “with knowledge or presumed knowledge… failed to take any reasonable means to bring it to an end.”
9. The liability that was imposed was not strict in the Rylands v Fletcher [1865-66] All E.R. Rep. 1 sense but had more in common with the development of negligence in Donoghue v Stevenson [1932] AC 562.
Goldman v Hargrave [1967] 1 AC 645
10. Goldman v Hargrave (an Australian decision of the Privy Council) extended the rule in Sedleigh-Denfield to cases where the nuisance arose from nature rather than human agency. The facts of the case were that a tall redgum tree on the defendant’s land was struck by lightning and caught alight. The defendant doused the tree with water but took no steps at all in respect of the fire that had already begun to spread from the tree. Instead he chose to let the fire burn itself out. But the weather became even hotter and the wind blew the fire onto the adjoining landowner’s land causing terrible damage. On the face of it the landowner had failed to do something that he could have done with very little effort or expense. It was not really disputed that the harm that was caused was perfectly foreseeable.
11. Lord Wilberforce’s comments at p. 657 reflected the sea change in the law.
“… it is only in comparatively recent times that the law has recognised an occupier's duty as one of a more positive character than merely to abstain from creating, or adding to, a source of danger or annoyance. It was for long satisfied with the conception of separate or autonomous proprietors, each of which was entitled to exploit his territory in a "natural" manner and none of whom was obliged to restrain or direct the operations of nature in the interest of avoiding harm to his neighbours.”
Lord Wilberforce posed the question (at p. 656) having noted that the owner had not used his land so as to cause a nuisance and that the nuisance had arisen “accidently”: “The issue is therefore whether in such a case the occupier is guilty of legal negligence, which involves the issue whether he is under a duty of care, and, if so, what is the scope of the duty?”
12. The answer that was given by Lord Wilberforce at p. 663A-D is important (still today):
“How far does it go? What is the standard of the effort required? What is the position as regards expenditure? It is not enough to say merely that these must be "reasonable," since what is reasonable to one man may be very unreasonable, and indeed ruinous, to another: the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour's interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust. One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it. and in many cases, as, for example, in Scrutton L.J.'s hypothetical case of stamping out a fire, or the present case, where the hazard could have been removed with little effort and no expenditure, no problem arises. But other cases may not be so simple. In such situations the standard ought to be to require of the occupier what it is reasonable to expect of him in his individual circumstances. Thus, less must be expected of the infirm than of the able-bodied: the owner of a small property where a hazard arises which threatens a neighbour with substantial interests should not have to do so much as one with larger interests of his own at stake and greater resources to protect them: if the small owner does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty: he should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstance should, have done more.”
Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] 2 W.L.R. 65
13. In the famous case of Leaky the Court of Appeal confirmed the Sedleigh-Denfield Goldman v Hargrave line of authority. The court did not explicitly use the phrase “measured duty of care.” The claimant’s houses had been built at the foot of a large mound of the defendant’s land. Naturally weathering caused the rubble at fallen down and by 1968 the defendant knew there was a danger to the properties. After a hot summer a large crack appeared and the large quantity of earth was deposited onto the properties.
14. Megaw LJ opined at p. 518:
“So long as the defect remains "latent" there is no duty on the occupier, whether the defect has been caused by a trespasser or by nature. Equally, once the latent becomes patent, a duty will arise, whether the causative agent of the defect is man or nature. But the mere fact that there is a duty does not necessarily mean that inaction constitutes a breach of the duty.”
There will be no duty arising unless the defendant has, or ought to have had, knowledge of the existence of the defect: see p. 522 per Megaw LJ.
15. The scope of the duty and the criteria of reasonableness was said (at p. 526) to include:
· What can the “particular man – not the average man” be expected to do?
· How much money would need to be spent to eliminate or reduce the danger? Is this within the means of the defendant?
· The age and physical condition of the defendant (if relevant).
· The neighbours resources (including financial) and ability to protect himself.
16. LJ Megaw opined at pp. 526-527:
“But if the only remedy is substantial and expensive works, then it might well be that the landowner would have discharged his duty by saying to his neighbours, who also know of the risk and who have asked him to do something about it, "You have my permission to come on to my land and to do agreed works at your expense"; or, it may be, "on the basis of a fair sharing of expense." In deciding whether the landowner had discharged his duty of care - if the question were thereafter to come before the courts - I do not think that, except perhaps in a most unusual case, there would be any question of discovery as to means of the plaintiff or the defendant, or evidence as to their respective resources. The question of reasonableness of what had been done or offered would fall to be decided on a broad basis, in which, on some occasions, there might be included an element of obvious discrepancy of financial resources. It may be that in some cases the introduction of this factor may give rise to difficulties to litigants and to their advisers and to the courts. But I believe that the difficulties are likely to turn out to be more theoretical than practical.”
The danger for a landowner is that – assuming he does something – a court will decide later that what he has done is too little.
MODERN APPLICATION
17. I turn now to more recent cases to see how the above principles have been applied.
Holbeck Hall Hotel Ltd. and Another v Scarborough Borough Council [2000] 2 W.L.R. 1396
18. The Holbeck Hall Hotel case generated some considerable media coverage at the time. The defendant public authority owned the land between a hotel and the sea. There was a problem with cliff erosion in the area that had known about for many years. The claimant owned the hotel, much of the hotel grounds disappeared into the sea and the hotel itself had to be demolished.
19. The trial judge had found in favour of the claimant on the basis that the defendant had failed to carry out more detailed assessments of the relevant geological issues. It was clear that it would have been possible for the full scale of the problem to have been discovered if these further investigations had been carried out.
20. The question for the court was therefore: what was the extent of the defendant’s presumed knowledge? Stuart-Smith LJ ruled that:
· The defect must be “patent and not latent.” It must be a defect that can be observed by the reasonable landowner on the spot.
· The landowner will “not be liable simply because, if he had made further investigations, he would have discovered it.
21. On the facts the defendant could not have foreseen the danger on a scale that actually occurred.
22. Stuart-Smith LJ referred to the scope of the duty as discussed in Leaky and Goldman v Hargrave and read the judgments in light of the subsequent Caparo Industries Plc v Dickman [1990] 2 AC 605. In every case the scope or measure of the duty imposed must satisfy the requirement to be fair, just and reasonable.
23. In light of the above, it was not necessary to refer to other limiting factors because, as Stuart-Smith LJ put it (at [54]): “the scope of Scarborough's duty was confined to an obligation to take care to avoid damage to the plaintiffs' land which they ought to have foreseen without further geological investigation.”
24. Two final points are worthy of mention.
25. First, it was suggested by Stuart-Smith LJ at [58] that it might have been argued by the claimants that the defendant was under a duty to share information (e.g. reports) that they had regarding the erosion. However, in order to succeed on this basis the claimant would need to show that they would have undertaken further geological investigations themselves and thereafter would – either by themselves or in conjunction with the defendant – have carried out remedial works.
26. Second, the case also confirmed that there is no difference in approach to nuisances caused by encroachment and nuisance by caused by loss of support: see [35] per Stuart-Smith LJ.
Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55
27. In Delaware Mansions the claimant brought a claim for £570,373 - which represented the cost of underpinning work that had to be carried out because of the encroachment of tree roots of a plane tree belonging to the defendant highway authority.
28. The defendant had not, as requested in 1989 removed the tree. It had merely carried out some root pruning. In 1990 the claimant, on further advice, carried out the underpinning. If the Council had removed the tree the cost of repairing the building would have been a mere £14,000.
29. After discussing the authorities dealt with above, Lord Cooke (who spoke for the court) useful said at [31] that “In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of a neighbour’s duty rather than affixing a label and inferring the extent of the duty from it.” Lord Cooke concluded on the facts of the case that:
“If reasonableness between neighbours is the key to the solution of problems in this field, it cannot be right to visit the authority or owner responsible for a tree with a large bill for underpinning without giving them notice of the damage and the opportunity of avoiding further damage by removal of the tree. Should they elect to preserve the tree for environmental reasons, they may fairly be expected to bear the cost of underpinning or other reasonably necessary remedial works; and the party on whom the cost has fallen may recover it, even though there may be elements of hitherto unsatisfied pre-proprietorship damage or protection for the future. But, as a general proposition, I think that the defendant is entitled to notice and a reasonable opportunity of abatement before liability for remedial expenditure can arise. In this case Westminster had ample notice and time before the underpinning and piling, and is in my opinion liable.”
30. Delaware Mansions serves as a salutary warning that, in the case of a continuing natural nuisance, a landowner cannot allow the problem to continue indefinitely where there is a cheap way of resolving the issue.
Green v Lord Somerleyton [2004] 1 P. & C.R. 33
31. The Green case concerned the flooding of the claimant’s land caused by heavy rainfall increasing the flow of water from the defendant’s lake.
32. The court helpfully set out at [82]:
“… whilst the question whether, on Leakey principles, liability in nuisance exists in any particular case may logically be approached by asking firstly whether a Leakey duty arose, secondly, if so, whether it was breached, and thirdly what damage resulted from the breach, the overall question is whether the loss claimed is a loss for which, on Leakey principles, the claimant is entitled to compensation.”
33. On the particular facts of the case there was no liability made out. The water flowed naturally onto the claimant’s land in any case and the onus was on him to show that the defendant had not taken reasonable steps to abate it. In this context it was also held relevant that the claimant had made no effort at all to take steps on his land to reduce or remove the risk. The claimant could not complain that the defendant had no instigated a “joint effort” when he had not made any such approach. The preventative work in respect of which it was claimed the defendant ought to have carried out was held to be disproportionately expensive when compared to the intermittent risk of flooding: see at [105 – 109] per Parker LJ.
Lambert v Barratt Homes Ltd, Rochdale Metropolitan Borough Council [2010] EWCA Civ 681
34. In Lambert Barratt Homes bought the lower half of a playing field in the possession of the Council. Barratt Homes filled in a water course and culvert so that rainwater flowing from the Council’s half of the playing field had nowhere to flow except the Claimants’ properties.
35. By the time the Lambert case came before the Court of Appeal Barratt Homes had been found liable in respect in respect of flooding to the claimants’ land. At first instance the judge had also found the Council in breach of a measured duty to take reasonable steps to abate the nuisance comprised in the water flooding from their land.
36. The Court of Appeal were critical at [14] of the first-instance judge for not spelling out the scope of the measured duty of care. The court had to infer that the judge had said that the scope of the duty include requiring the Council to carry out the repair works itself, irrespective of any financial contribution from Barratt.
37. In assessing the scope of the measured duty of care the court had in mind at [22]:
· The financial constraints on local authorities which is not “generally for the benefit of private citizens.”
· Other sources of funding for relief works: Barratt Homes and, notably, the insurance policies of claimants.
38. The court concluded at [25] that the Council were under a duty to co-operate and facilitate any necessary works. On the facts found at first-instance the Court of Appeal was not able to say whether the duty extended to the actual carrying out of works. However, the court was clear that the duty did not extend to paying for the entirety of the works.
39. Of most note however was the conclusion that, in the case of a continuing nuisance, the measure of the duty would be a moveable feast, even during the course of litigation. Thus Longmore LJ said at [23] that the scope of the duty to be imposed on the Council was very much reduced once Barratt Homes had been found liable for the whole cost of the repair work.
Berent v Family Mosaic Housing (incorporating Mosaic Housing Association), London Borough of Islington [2012] EWCA Civ 961
40. The claimant in Berent brought a claim in, inter alia, nuisance in respect of tree roots that had grown under her property. The damage to the property was caused in 2003/2004 but the trees were only removed in 2011. The trial judge dismissed the claim on the basis that the damage was not reasonably foreseeable. In upholding this ruling, the Court of Appeal held that the enquiry as to reasonable foreseeability of damage could not be separated from the question as to “what it was reasonable to do in the light of the foreseeable risk.” Further, that it might be reasonable to take no steps to eliminate a risk that was unlikely to happen and which would be of small consequence if it did: see [20] per Tomlinson LJ.
Colin Bainbridge Willis, Avril Willis v Derwentside District Council [2013] EWHC 738 (Ch)
41. Willis v Derwentside is a recent (April 2013) unreported case of the High Court. The claimants owned a house and garden together with a smallholding (where they kept some animals). The Council owned the adjacent land comprising the mouth of an abandoned coal tunnel. Large quantities of stythe gas – which can cause asphyxiation and death – were being produced. In 2006 the claimants were evacuated due to the risk to their safety. A programme of remedial works were carried out.
42. It is established that coal mining is a natural user of land and the case fell to be dealt with on this basis. It was found by Briggs J at [53] that although there had been isolated incidents of damage this had “by no means led to a perception… that all the disused shafts and drifts needed automatically to be sealed against gas escape.” There was a widely held view that the stythe gas would simply dissipate in the atmosphere. Following the well established principles as described above, the judge held that any duty only arose in April 2006 when the problem became evident: from this date the Council had “knowledge.”
43. The judge was critical of the Council in way that it dealt with the case. He had in mind the “touchstone for liability is the identification of the reasonable steps required of a landowner to abate a nuisance caused to is neighbour” and held that where the danger was so perilous it was reasonable for the Council to supply all information in its hands upon request. The Council had taken a defensive stance and sought to restrict information that it thought might establish liability against it. This had resulted in the claimants having to instruct their own experts at large cost. The judge ruled that the Council were liable for this expense.
44. The main claim was for a £200,000 in respect of the loss of value to the property (the Council had refused to issue a certificate of completion in respect of the remedial works) but the noted that the law does not make a landowner the guarantor of the capital value of his neighbour’s land free from the consequences of a nuisance not caused by the landowner. A certificate of completion to the remedial works could, it was said by the judge, be expected to be forthcoming.
45. In the end the judge adjourned the case on the basis of an undertaking from the Council to carry out the relevant monitoring and maintenance. No doubt the whole exercise has been a costly (albeit, from the remarks of the judge, avoidable) one for the Council.
Miscellaneous points
46. In Network Rail Infrastructure Limited v Morris (t/a Soundstar Studio) [2004] Env. L.R. 41 it was said reasonableness is best assessed in terms of foreseeability. In Kirk v Brent LBC [2006] Env. L.R. D7 it was held that the House of Lords decision in Delaware Mansions not authority for the proposition that where nuisance was created by tree roots there was no liability for resulting damage unless and until damage had been notified to the tortfeasor. In Abbahall Ltd v Smee [2003] 1 W.L.R. 1472, a case of nuisance deriving from a leaky roof in a block of flats, Munby J said: “In principle, therefore, the burden of meeting the cost of the necessary works in a case such as this I say nothing about other types of case arising in different topographical circumstances ought to be shared between those who will benefit from the works.” [emphasis added] The first instance judge had erroneously taken into account that one party was on state benefits.
CONCLUSIONS
47. In my view, on the basis of the above authorities, it is possible to answer the questioned posed by this paper in the following (non-exhaustive) way.
48. First, the steps that are required will depend on the knowledge of the client and the foreseeability of the harm. It is not possible to be wilfully blind to nuisance or the risk of nuisance arising because the court will impute constructive knowledge. In practice however the client is likely to have had some knowledge of the risk before the disastrous accident occurs. There is a tension in the cases between not holding a landowner liable merely because he has not carried out further investigations (e.g. Holbeck) and, on the other hand, the warnings against a landowner sitting back in disregard of the risk (e.g. Delaware Mansions).
49. The particular facts of the case might mean that it is not safe to let “sleeping dogs lie.” On the other hand, further investigations may alert a landowner to greater foreseeable risk and thereby increase the scope of the duty. Nevertheless, the duty of care on some particular fact patterns will extend to carrying out further investigations: is the danger life threatening for example? It is perhaps better in all situations to have an adequate appreciation of the risk (at moderate expense) – especially in light of the fact that steps short of expensive abatement might suffice to meet the duty (the expense of the experts might be enough in itself). There is no need to conduct unwarranted or disproportionate investigations. Neither is there any general rule that investigations will always be necessary.
50. Second, the courts are, as ever, keen to promote co-operation between neighbours. At the lowest level this might mean the client permitting the neighbour onto his land to abate the nuisance. The duty may at a higher level extend to devising remedial works and sharing the cost. In my view the duty will involve the sharing of information in a very substantial number of cases. This goes against the natural instincts of most lawyers but is likely to find favour with a court (if things goes wrong): especially if the nuisance is continuing at the time of trial.
51. Third, the steps required will depend upon the relative financial and other resources of the parties involved. It is emphasised that this is not a one-way equation but involves an assessment of both parties. However, a reasonably broad brush common sense view is required of this and, in my view, there will be the rarest of occasions that litigation on this issue will be at all appropriate. An interesting point arises as to whether work that has some benefit to both landowners should be shared equally. The division on the costs is of course likely to be a thorny practical issue but if reasonable proposals are put forward this would hopefully suffice to meet the duty. The existence of any potential insurance claim, that any party might have, should always be considered. It ought not be necessary to implement remedial work if the cost is disproportionate (e.g. the nuisance only occurs extremely infrequently but is expensive to prevent).
52. Fourth, although it is likely to be relevant in smaller cases only, the physical characteristics (e.g. age and physical ability) clearly fall to be taken into account if relevant. This statement merely is a facet of the rule that the court must consider the “particular man” and specific circumstances he finds himself in. Might it be said of a local authority that they have in-house expertise that ought to be deployed?
53. Fifth, time is of the essence. It is straightforward that any unreasonable delay in doing anything may result in liability. The difficulty comes where there are (as in Lambert) more than one party involved. Do you advise the client to incur expense when, at a later date, another may be found totally responsible for the cost of remedy? Lesser steps may be contemplated in line with the principles above. What is clear, in my opinion, is that where lesser steps are taken (i.e. that do not abate the nuisance entirely) the situation must be frequently reviewed as the scope of the duty may increase as well as decrease in all the circumstances. Meeting the duty may well involve tactical considerations of this sort.
54. In the end, clients will not want the expense of doing “too much” and do not wish to allow their neighbouring landowners to do better out of the solution than them. They might not however be able to afford the risk of doing “too little.”
Paul Wilmshurst
New Square Chambers
paul.wilmshurst@newsquarechambers.co.uk
INTRODUCTION
1. Where there is a naturally occurring nuisance on a landowner’s land it is now well established that he will owe a “measured duty of care” to adjoining landowners who are affected by it.
2. What is meant by a “measured duty of care” in broad terms is a duty that reflects the particular circumstances of all the parties in the case (e.g. their financial positions). The duty can fall well short of actually abating the nuisance and carrying out expensive remedial works. In Holbeck Hall Hotel Ltd. and Another v Scarborough Borough Council [2000] 2 W.L.R. 1396 at [54] Stuart-Smith LJ said “In considering the scope of the measured duty of care, the courts are still in relatively uncharted waters.”
3. What will constitute a natural nuisance is a separate question altogether than that addressed here. In Read v Lyons & J Lyons & Co Ltd [1947] AC 156 at 166 the judge said: “I confess to finding this test of ‘non-natural’ user… difficult to apply.” This reflected attempts by counsel to make some division of principle based on natural / non-natural nuisance. But now we were told by Parker LJ in Green v Lord Somerleyton [2003] EWCA Civ 198 “in the context of the English landscape a distinction between ‘natural’ and ‘artificial’ features is an inherently uncertain foundation on which to rest a decision as to the existence of liability in nuisance.”
4. The difference between the two, it is suggested, is the extent of the duty of care. A person who has, by his or her own agency, brought about reasonably foreseeable harm will be liable for it. But the decisions of the courts that are outlined below, have proceeded on the basis that the duty of care in cases of naturally occurring nuisance must reflect the fact that there has been no originating misfeasance: the duty has been forced upon them. Liability is based on the fact of adoption or continuance of a nuisance on the land.
5. I will first chart the evolution of the measured duty of care in the early cases and then go on to consider more recent decisions where the principle has been applied. Finally, I will attempt to summarise the key principles that can be derived form the jurisprudence in order to attempt to answer the question posed: what steps will satisfy the measured duty of care?
HISTORICAL EVOLUTION
The Victorian position
6. In the Victorian times the common law was clear. Where a nuisance occurred naturally the landowner needed only to inform the victim of the situation and allow him access to abate it (or not) as he wished.
7. However, in the first part of the 20th century the law was turned on its head. As a Professor Goodhart said in (1930) 4 CLJ 13 (“Liability for Things Naturally on the Land”): “An artificial pond on my land becomes stagnant and infects the neighbourhood. I am liable. A natural pond becomes stagnant. May I sit by and do nothing?” The distinction had become unsustainable.
Sedleigh-Denfield v O’Callaghan [1940] AC 880
8. In Sedleigh-Denfield trespassers had laid a pipe designed to take away rainwater in a ditch on the defendant’s land. They had failed to place a grid on the end of the pipe to prevent it from becoming blocked with leaves and sticks. It rained heavily in 1937, the pipe became blocked and the defendant’s land was damaged. Viscount Maugham held the defendant’s liable for the damage caused. In so doing he used the language of negligence at p. 894 in that the defendants “with knowledge or presumed knowledge… failed to take any reasonable means to bring it to an end.”
9. The liability that was imposed was not strict in the Rylands v Fletcher [1865-66] All E.R. Rep. 1 sense but had more in common with the development of negligence in Donoghue v Stevenson [1932] AC 562.
Goldman v Hargrave [1967] 1 AC 645
10. Goldman v Hargrave (an Australian decision of the Privy Council) extended the rule in Sedleigh-Denfield to cases where the nuisance arose from nature rather than human agency. The facts of the case were that a tall redgum tree on the defendant’s land was struck by lightning and caught alight. The defendant doused the tree with water but took no steps at all in respect of the fire that had already begun to spread from the tree. Instead he chose to let the fire burn itself out. But the weather became even hotter and the wind blew the fire onto the adjoining landowner’s land causing terrible damage. On the face of it the landowner had failed to do something that he could have done with very little effort or expense. It was not really disputed that the harm that was caused was perfectly foreseeable.
11. Lord Wilberforce’s comments at p. 657 reflected the sea change in the law.
“… it is only in comparatively recent times that the law has recognised an occupier's duty as one of a more positive character than merely to abstain from creating, or adding to, a source of danger or annoyance. It was for long satisfied with the conception of separate or autonomous proprietors, each of which was entitled to exploit his territory in a "natural" manner and none of whom was obliged to restrain or direct the operations of nature in the interest of avoiding harm to his neighbours.”
Lord Wilberforce posed the question (at p. 656) having noted that the owner had not used his land so as to cause a nuisance and that the nuisance had arisen “accidently”: “The issue is therefore whether in such a case the occupier is guilty of legal negligence, which involves the issue whether he is under a duty of care, and, if so, what is the scope of the duty?”
12. The answer that was given by Lord Wilberforce at p. 663A-D is important (still today):
“How far does it go? What is the standard of the effort required? What is the position as regards expenditure? It is not enough to say merely that these must be "reasonable," since what is reasonable to one man may be very unreasonable, and indeed ruinous, to another: the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour's interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust. One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it. and in many cases, as, for example, in Scrutton L.J.'s hypothetical case of stamping out a fire, or the present case, where the hazard could have been removed with little effort and no expenditure, no problem arises. But other cases may not be so simple. In such situations the standard ought to be to require of the occupier what it is reasonable to expect of him in his individual circumstances. Thus, less must be expected of the infirm than of the able-bodied: the owner of a small property where a hazard arises which threatens a neighbour with substantial interests should not have to do so much as one with larger interests of his own at stake and greater resources to protect them: if the small owner does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty: he should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstance should, have done more.”
Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] 2 W.L.R. 65
13. In the famous case of Leaky the Court of Appeal confirmed the Sedleigh-Denfield Goldman v Hargrave line of authority. The court did not explicitly use the phrase “measured duty of care.” The claimant’s houses had been built at the foot of a large mound of the defendant’s land. Naturally weathering caused the rubble at fallen down and by 1968 the defendant knew there was a danger to the properties. After a hot summer a large crack appeared and the large quantity of earth was deposited onto the properties.
14. Megaw LJ opined at p. 518:
“So long as the defect remains "latent" there is no duty on the occupier, whether the defect has been caused by a trespasser or by nature. Equally, once the latent becomes patent, a duty will arise, whether the causative agent of the defect is man or nature. But the mere fact that there is a duty does not necessarily mean that inaction constitutes a breach of the duty.”
There will be no duty arising unless the defendant has, or ought to have had, knowledge of the existence of the defect: see p. 522 per Megaw LJ.
15. The scope of the duty and the criteria of reasonableness was said (at p. 526) to include:
· What can the “particular man – not the average man” be expected to do?
· How much money would need to be spent to eliminate or reduce the danger? Is this within the means of the defendant?
· The age and physical condition of the defendant (if relevant).
· The neighbours resources (including financial) and ability to protect himself.
16. LJ Megaw opined at pp. 526-527:
“But if the only remedy is substantial and expensive works, then it might well be that the landowner would have discharged his duty by saying to his neighbours, who also know of the risk and who have asked him to do something about it, "You have my permission to come on to my land and to do agreed works at your expense"; or, it may be, "on the basis of a fair sharing of expense." In deciding whether the landowner had discharged his duty of care - if the question were thereafter to come before the courts - I do not think that, except perhaps in a most unusual case, there would be any question of discovery as to means of the plaintiff or the defendant, or evidence as to their respective resources. The question of reasonableness of what had been done or offered would fall to be decided on a broad basis, in which, on some occasions, there might be included an element of obvious discrepancy of financial resources. It may be that in some cases the introduction of this factor may give rise to difficulties to litigants and to their advisers and to the courts. But I believe that the difficulties are likely to turn out to be more theoretical than practical.”
The danger for a landowner is that – assuming he does something – a court will decide later that what he has done is too little.
MODERN APPLICATION
17. I turn now to more recent cases to see how the above principles have been applied.
Holbeck Hall Hotel Ltd. and Another v Scarborough Borough Council [2000] 2 W.L.R. 1396
18. The Holbeck Hall Hotel case generated some considerable media coverage at the time. The defendant public authority owned the land between a hotel and the sea. There was a problem with cliff erosion in the area that had known about for many years. The claimant owned the hotel, much of the hotel grounds disappeared into the sea and the hotel itself had to be demolished.
19. The trial judge had found in favour of the claimant on the basis that the defendant had failed to carry out more detailed assessments of the relevant geological issues. It was clear that it would have been possible for the full scale of the problem to have been discovered if these further investigations had been carried out.
20. The question for the court was therefore: what was the extent of the defendant’s presumed knowledge? Stuart-Smith LJ ruled that:
· The defect must be “patent and not latent.” It must be a defect that can be observed by the reasonable landowner on the spot.
· The landowner will “not be liable simply because, if he had made further investigations, he would have discovered it.
21. On the facts the defendant could not have foreseen the danger on a scale that actually occurred.
22. Stuart-Smith LJ referred to the scope of the duty as discussed in Leaky and Goldman v Hargrave and read the judgments in light of the subsequent Caparo Industries Plc v Dickman [1990] 2 AC 605. In every case the scope or measure of the duty imposed must satisfy the requirement to be fair, just and reasonable.
23. In light of the above, it was not necessary to refer to other limiting factors because, as Stuart-Smith LJ put it (at [54]): “the scope of Scarborough's duty was confined to an obligation to take care to avoid damage to the plaintiffs' land which they ought to have foreseen without further geological investigation.”
24. Two final points are worthy of mention.
25. First, it was suggested by Stuart-Smith LJ at [58] that it might have been argued by the claimants that the defendant was under a duty to share information (e.g. reports) that they had regarding the erosion. However, in order to succeed on this basis the claimant would need to show that they would have undertaken further geological investigations themselves and thereafter would – either by themselves or in conjunction with the defendant – have carried out remedial works.
26. Second, the case also confirmed that there is no difference in approach to nuisances caused by encroachment and nuisance by caused by loss of support: see [35] per Stuart-Smith LJ.
Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55
27. In Delaware Mansions the claimant brought a claim for £570,373 - which represented the cost of underpinning work that had to be carried out because of the encroachment of tree roots of a plane tree belonging to the defendant highway authority.
28. The defendant had not, as requested in 1989 removed the tree. It had merely carried out some root pruning. In 1990 the claimant, on further advice, carried out the underpinning. If the Council had removed the tree the cost of repairing the building would have been a mere £14,000.
29. After discussing the authorities dealt with above, Lord Cooke (who spoke for the court) useful said at [31] that “In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of a neighbour’s duty rather than affixing a label and inferring the extent of the duty from it.” Lord Cooke concluded on the facts of the case that:
“If reasonableness between neighbours is the key to the solution of problems in this field, it cannot be right to visit the authority or owner responsible for a tree with a large bill for underpinning without giving them notice of the damage and the opportunity of avoiding further damage by removal of the tree. Should they elect to preserve the tree for environmental reasons, they may fairly be expected to bear the cost of underpinning or other reasonably necessary remedial works; and the party on whom the cost has fallen may recover it, even though there may be elements of hitherto unsatisfied pre-proprietorship damage or protection for the future. But, as a general proposition, I think that the defendant is entitled to notice and a reasonable opportunity of abatement before liability for remedial expenditure can arise. In this case Westminster had ample notice and time before the underpinning and piling, and is in my opinion liable.”
30. Delaware Mansions serves as a salutary warning that, in the case of a continuing natural nuisance, a landowner cannot allow the problem to continue indefinitely where there is a cheap way of resolving the issue.
Green v Lord Somerleyton [2004] 1 P. & C.R. 33
31. The Green case concerned the flooding of the claimant’s land caused by heavy rainfall increasing the flow of water from the defendant’s lake.
32. The court helpfully set out at [82]:
“… whilst the question whether, on Leakey principles, liability in nuisance exists in any particular case may logically be approached by asking firstly whether a Leakey duty arose, secondly, if so, whether it was breached, and thirdly what damage resulted from the breach, the overall question is whether the loss claimed is a loss for which, on Leakey principles, the claimant is entitled to compensation.”
33. On the particular facts of the case there was no liability made out. The water flowed naturally onto the claimant’s land in any case and the onus was on him to show that the defendant had not taken reasonable steps to abate it. In this context it was also held relevant that the claimant had made no effort at all to take steps on his land to reduce or remove the risk. The claimant could not complain that the defendant had no instigated a “joint effort” when he had not made any such approach. The preventative work in respect of which it was claimed the defendant ought to have carried out was held to be disproportionately expensive when compared to the intermittent risk of flooding: see at [105 – 109] per Parker LJ.
Lambert v Barratt Homes Ltd, Rochdale Metropolitan Borough Council [2010] EWCA Civ 681
34. In Lambert Barratt Homes bought the lower half of a playing field in the possession of the Council. Barratt Homes filled in a water course and culvert so that rainwater flowing from the Council’s half of the playing field had nowhere to flow except the Claimants’ properties.
35. By the time the Lambert case came before the Court of Appeal Barratt Homes had been found liable in respect in respect of flooding to the claimants’ land. At first instance the judge had also found the Council in breach of a measured duty to take reasonable steps to abate the nuisance comprised in the water flooding from their land.
36. The Court of Appeal were critical at [14] of the first-instance judge for not spelling out the scope of the measured duty of care. The court had to infer that the judge had said that the scope of the duty include requiring the Council to carry out the repair works itself, irrespective of any financial contribution from Barratt.
37. In assessing the scope of the measured duty of care the court had in mind at [22]:
· The financial constraints on local authorities which is not “generally for the benefit of private citizens.”
· Other sources of funding for relief works: Barratt Homes and, notably, the insurance policies of claimants.
38. The court concluded at [25] that the Council were under a duty to co-operate and facilitate any necessary works. On the facts found at first-instance the Court of Appeal was not able to say whether the duty extended to the actual carrying out of works. However, the court was clear that the duty did not extend to paying for the entirety of the works.
39. Of most note however was the conclusion that, in the case of a continuing nuisance, the measure of the duty would be a moveable feast, even during the course of litigation. Thus Longmore LJ said at [23] that the scope of the duty to be imposed on the Council was very much reduced once Barratt Homes had been found liable for the whole cost of the repair work.
Berent v Family Mosaic Housing (incorporating Mosaic Housing Association), London Borough of Islington [2012] EWCA Civ 961
40. The claimant in Berent brought a claim in, inter alia, nuisance in respect of tree roots that had grown under her property. The damage to the property was caused in 2003/2004 but the trees were only removed in 2011. The trial judge dismissed the claim on the basis that the damage was not reasonably foreseeable. In upholding this ruling, the Court of Appeal held that the enquiry as to reasonable foreseeability of damage could not be separated from the question as to “what it was reasonable to do in the light of the foreseeable risk.” Further, that it might be reasonable to take no steps to eliminate a risk that was unlikely to happen and which would be of small consequence if it did: see [20] per Tomlinson LJ.
Colin Bainbridge Willis, Avril Willis v Derwentside District Council [2013] EWHC 738 (Ch)
41. Willis v Derwentside is a recent (April 2013) unreported case of the High Court. The claimants owned a house and garden together with a smallholding (where they kept some animals). The Council owned the adjacent land comprising the mouth of an abandoned coal tunnel. Large quantities of stythe gas – which can cause asphyxiation and death – were being produced. In 2006 the claimants were evacuated due to the risk to their safety. A programme of remedial works were carried out.
42. It is established that coal mining is a natural user of land and the case fell to be dealt with on this basis. It was found by Briggs J at [53] that although there had been isolated incidents of damage this had “by no means led to a perception… that all the disused shafts and drifts needed automatically to be sealed against gas escape.” There was a widely held view that the stythe gas would simply dissipate in the atmosphere. Following the well established principles as described above, the judge held that any duty only arose in April 2006 when the problem became evident: from this date the Council had “knowledge.”
43. The judge was critical of the Council in way that it dealt with the case. He had in mind the “touchstone for liability is the identification of the reasonable steps required of a landowner to abate a nuisance caused to is neighbour” and held that where the danger was so perilous it was reasonable for the Council to supply all information in its hands upon request. The Council had taken a defensive stance and sought to restrict information that it thought might establish liability against it. This had resulted in the claimants having to instruct their own experts at large cost. The judge ruled that the Council were liable for this expense.
44. The main claim was for a £200,000 in respect of the loss of value to the property (the Council had refused to issue a certificate of completion in respect of the remedial works) but the noted that the law does not make a landowner the guarantor of the capital value of his neighbour’s land free from the consequences of a nuisance not caused by the landowner. A certificate of completion to the remedial works could, it was said by the judge, be expected to be forthcoming.
45. In the end the judge adjourned the case on the basis of an undertaking from the Council to carry out the relevant monitoring and maintenance. No doubt the whole exercise has been a costly (albeit, from the remarks of the judge, avoidable) one for the Council.
Miscellaneous points
46. In Network Rail Infrastructure Limited v Morris (t/a Soundstar Studio) [2004] Env. L.R. 41 it was said reasonableness is best assessed in terms of foreseeability. In Kirk v Brent LBC [2006] Env. L.R. D7 it was held that the House of Lords decision in Delaware Mansions not authority for the proposition that where nuisance was created by tree roots there was no liability for resulting damage unless and until damage had been notified to the tortfeasor. In Abbahall Ltd v Smee [2003] 1 W.L.R. 1472, a case of nuisance deriving from a leaky roof in a block of flats, Munby J said: “In principle, therefore, the burden of meeting the cost of the necessary works in a case such as this I say nothing about other types of case arising in different topographical circumstances ought to be shared between those who will benefit from the works.” [emphasis added] The first instance judge had erroneously taken into account that one party was on state benefits.
CONCLUSIONS
47. In my view, on the basis of the above authorities, it is possible to answer the questioned posed by this paper in the following (non-exhaustive) way.
48. First, the steps that are required will depend on the knowledge of the client and the foreseeability of the harm. It is not possible to be wilfully blind to nuisance or the risk of nuisance arising because the court will impute constructive knowledge. In practice however the client is likely to have had some knowledge of the risk before the disastrous accident occurs. There is a tension in the cases between not holding a landowner liable merely because he has not carried out further investigations (e.g. Holbeck) and, on the other hand, the warnings against a landowner sitting back in disregard of the risk (e.g. Delaware Mansions).
49. The particular facts of the case might mean that it is not safe to let “sleeping dogs lie.” On the other hand, further investigations may alert a landowner to greater foreseeable risk and thereby increase the scope of the duty. Nevertheless, the duty of care on some particular fact patterns will extend to carrying out further investigations: is the danger life threatening for example? It is perhaps better in all situations to have an adequate appreciation of the risk (at moderate expense) – especially in light of the fact that steps short of expensive abatement might suffice to meet the duty (the expense of the experts might be enough in itself). There is no need to conduct unwarranted or disproportionate investigations. Neither is there any general rule that investigations will always be necessary.
50. Second, the courts are, as ever, keen to promote co-operation between neighbours. At the lowest level this might mean the client permitting the neighbour onto his land to abate the nuisance. The duty may at a higher level extend to devising remedial works and sharing the cost. In my view the duty will involve the sharing of information in a very substantial number of cases. This goes against the natural instincts of most lawyers but is likely to find favour with a court (if things goes wrong): especially if the nuisance is continuing at the time of trial.
51. Third, the steps required will depend upon the relative financial and other resources of the parties involved. It is emphasised that this is not a one-way equation but involves an assessment of both parties. However, a reasonably broad brush common sense view is required of this and, in my view, there will be the rarest of occasions that litigation on this issue will be at all appropriate. An interesting point arises as to whether work that has some benefit to both landowners should be shared equally. The division on the costs is of course likely to be a thorny practical issue but if reasonable proposals are put forward this would hopefully suffice to meet the duty. The existence of any potential insurance claim, that any party might have, should always be considered. It ought not be necessary to implement remedial work if the cost is disproportionate (e.g. the nuisance only occurs extremely infrequently but is expensive to prevent).
52. Fourth, although it is likely to be relevant in smaller cases only, the physical characteristics (e.g. age and physical ability) clearly fall to be taken into account if relevant. This statement merely is a facet of the rule that the court must consider the “particular man” and specific circumstances he finds himself in. Might it be said of a local authority that they have in-house expertise that ought to be deployed?
53. Fifth, time is of the essence. It is straightforward that any unreasonable delay in doing anything may result in liability. The difficulty comes where there are (as in Lambert) more than one party involved. Do you advise the client to incur expense when, at a later date, another may be found totally responsible for the cost of remedy? Lesser steps may be contemplated in line with the principles above. What is clear, in my opinion, is that where lesser steps are taken (i.e. that do not abate the nuisance entirely) the situation must be frequently reviewed as the scope of the duty may increase as well as decrease in all the circumstances. Meeting the duty may well involve tactical considerations of this sort.
54. In the end, clients will not want the expense of doing “too much” and do not wish to allow their neighbouring landowners to do better out of the solution than them. They might not however be able to afford the risk of doing “too little.”
Paul Wilmshurst
New Square Chambers
paul.wilmshurst@newsquarechambers.co.uk