Nuisance: the danger with delay

Land iStock 000000070770XSmall 146x219Gwendoline Davies reviews a recent High Court ruling – in a nuisance case involving a local authority – that is consistent with recent reforms to cost and case management in civil litigation. 

The case of Willis v Derwentshire [1] was a claim for damages in nuisance, negligence and under the rule in Rylands v Fletcher [2], arising from the escape of dangerous gas from land owned by the defendant (the council).

The facts

The claimants owned a house and garden, and occupied neighbouring land which they used as a smallholding, adjacent to land comprising extensive disused underground coal workings which had been purchased by the council from the National Coal Board in 1978.

The council's purchase was subject to covenants that it would infill and maintain abandoned coal workings and would indemnify the Coal Board against any liability or expense not associated with ongoing mining operations after the date of the conveyance.  

Immediately south of the claimants' garden lay the mouth of an abandoned coal drift (or tunnel). The combination of reduced oxygen and increased carbon dioxide in the workings produced emissions of large quantities of stythe gas, which can cause loss of consciousness and asphyxiation. The claimants were temporarily evacuated from their property in 2006, due to a perceived unacceptable risk to their safety, while a programme of remedial works was undertaken by the (now) Coal Authority but paid for by the council.

The claimants sought compensation. They argued that uncontrolled emissions prior to 2006 constituted a nuisance or a Rylands v Fletcher escape which caused death by asphyxiation of animals and poultry kept by the claimants; the defendant's delay in dealing with the emissions (caused by its squabbling with the Coal Authority over responsibility) caused unreasonable disruption, distress and inconvenience; refusal by the council to reveal or explain the nature of the emissions or the detail of the remedial works led to the claimants incurring the significant expense of appointing their own expert; and the failure of the council to procure a completion certificate in respect of the remedial works rendered the claimants' property unmortgageable and unsaleable, resulting in a complete loss of its capital value of £200,000.

The law

The court summarised some key legal principles for environmental nuisance cases. The rule in Rylands v Fletcher imposes strict liability upon a person who, for his own purposes, brings on to or keeps on land anything which is likely to do harm if it escapes. Nuisance arises from conduct (which may be acts or omissions) which interferes with the use or enjoyment of land. Where the particular defendant sued in nuisance has not caused a nuisance, but has permitted nuisance to continue, proof of negligence is required for a claim to succeed [3]. In addition, a landowner's duty is merely to do that which is reasonable in all circumstances, and no more, to prevent or minimise the risk of damage or injury arising from nuisance [4].

The court's approach

Having noted that, because mining is a natural user of land and stythe gas is not something which is brought on to or kept on land in the relevant sense, Rylands v Fletcher did not apply, and having noted that the council did not cause any nuisance, the court nevertheless criticised the council's handling of the case.

  • The mouth of the drift and also pipes and drains passing through the council's land were routes by which a harmful gas was escaping on to the claimants' land. Academic attempts by the council to muddy the waters as to the whereabouts and source of emissions were resisted by the court.
  • From 2006, when the council knew of the nuisance, there was a duty to abate. There was a culpable delay of eight weeks while the council wrangled with the Coal Authority as to liability.
  • Reasonable steps to abate a dangerous nuisance did include the council keeping the claimants advised of the nature and extent of the problem, together with the analysis and design of remediation. The council was wrong to withhold information from the claimants due to its perception that material relevant to its potential liability should be kept confidential. As such it should reimburse the claimants for their expenditure on expert advice.
  • There was no doubt that the claimant's property remained unmortgageable and unsaleable because of the lack of completion certificate for the remedial works and an ongoing dispute as to their adequacy, and that the council's failures to provide a certificate and to commit to ongoing monitoring and maintenance fell short of the duty to take reasonable measures. However, pending provision by the council of a certificate and an appropriate undertaking to monitor and maintain, the court adjourned the question as to whether any further remedy or damages would be required.

As to the other claims, evidence could not conclusively confirm that death of the claimants' animals was caused by the emissions and at the relevant time and so no damages were payable in that regard. Although there was undoubted inconvenience and distress caused by the claimants' evacuation, the claimants were rehoused in a location of their choosing and so, in line with Leaky v National Trust and a cost-benefit analysis, no damages were due under this head. 

Comment

The judgment in this case is fair and commercially astute. The court has made clear that a party cannot shirk its responsibilities to abate nuisance by taking academic points which have no practical impact, and that a party would be very ill-advised to delay at all – not least where the nuisance in question is dangerous. 

The court also advocated the adopting of an open and honest approach following the discovery of a nuisance, particularly in relation to the sharing of mining and environmental expertise, as opposed to the guarded attitude which, perhaps inevitably, often accompanies the contemplation of litigation. It is particularly interesting to note that the court considered that the sharing of relevant information was a reasonable step to abate a nuisance.

Finally, the court's adjournment of the question of damages for capital loss to the value of the claimant's property was a clear encouragement to the parties to take sensible steps to achieve a mutually acceptable and efficient resolution of the case.

This case is consistent with recent reforms to cost and case management in civil litigation [5]. It promotes the early and open disclosure of information and expert evidence between parties, and the cost-effective and practical settlement of disputes. 

Gwendoline Davies is a partner and head of commercial dispute resolution at Walker Morris. She can be contacted on 0113 283 2517 or by This email address is being protected from spambots. You need JavaScript enabled to view it.. She regularly contributes articles and updates to reach... ®, the free Walker Morris knowledge database and alerter service.

[1] (1) Colin Bainbridge Willis and (2) Avril Willis v Derwentshire District Council [2013] EWHC 738 (Ch)

[2] (1866) LR 3 HL 330

[3] Denfield v O'Callaghan [1940] AC 880

[4] Leaky v National Trust [1980] 1 QBD

[5] The 60th and 61st updates to the Civil Procedure Rules (or, the Jackson Reforms)