A noxious nuisance – lessons for council lawyers?

May 16, 2013

A recent case on nuisance contains some important lessons for council litigation lawyers, argues Nicholas Dobson.

If you’re a householder, having to take legal proceedings must be a nuisance. And even more so when the issue is a nuisance at law; and a toxic one at that.

That was the unfortunate position of Mr and Mrs Willis (the claimants), who as owners and occupiers of certain property (the property), suffered high levels of escaping CO2 from previous National Coal Board (NCB) land owned at material times by the former Derwentside District Council. The matter came before the Chancery Division in March in Willis & Anor v Derwentside District Council [2013] EWHC 738 (Ch). Briggs J gave judgment on 10 April 2013, in which the council’s legal department did not escape some implicit judicial criticism.

A disused mine opening (the Burn Drift) lies on land situated immediately south of the property’s garden and acquired by the council from NCB in January 1978. Whilst this opening was sealed in 2006/2007, for many years previously it was open to the air, with access obstructed only by an iron barred grille and undergrowth. CO2 generated by residual coal seams created an atmosphere within the workings of low oxygen and increased CO2, known locally as stythe gas.

Ground investigations in 2006 regarding proposed construction of a care home on land near the Burn Drift revealed that large quantities of stythe gas were being emitted from the mouth of that opening in certain atmospheric conditions. NCB investigations indicated dangerous CO2 levels and oxygen depletion around the mouth of the Burn Drift and significantly high CO2 levels within the claimants’ house (the house) on the property. In July 2006 the claimants were consequently evacuated from the house and temporarily relocated (first in a caravan and then in a portakabin at the property) while temporary measures were undertaken to reduce emissions to a safe level pending permanent remedial works completed during 2007.

In the circumstances the claimants sought compensation for loss under the following four broad heads:

The uncontrolled emissions prior to 2006 constituted a nuisance (or Rylands v Fletcher) escape, causing death by asphyxiation of animals and poultry as well as causing the claimants headaches and mild discomfort;
The delays in dealing with the stythe gas issue (until remediation completion in 2007) because of disputes between the council and Coal Authority over apportionment of responsibility caused unreasonable disruption, distress and inconvenience;
The claimants were put to the substantial expense of engaging their own mining expert since the council refused to reveal or explain the nature and causes of the gas emissions or the thinking behind the design of the remedial scheme;
An estimated capital loss to the value of the property caused by the council’s failure to obtain or make available a certificate of due completion of the remedial scheme or to conduct monitoring or maintenance of the remedial works in line with the Coal Authority’s recommendations. This rendered the property both un-mortgageable and unsaleable.

The Law

Rylands v Fletcher

The court found that the doctrine established by the House of Lords in Rylands v Fletcher [1866] LR 1 Ex 265 (1886) (strict liability when a person for his own purposes brings onto land, collects and keeps there anything likely to do mischief if it escapes) had no application in this case. This was because (as Briggs J pointed out) "....it has long been held that mining activity is a natural user of land to which the doctrine does not apply" and stythe gas was not "something brought on to the land in the relevant sense". For this is in fact "....something released by the natural reaction of oxygen with carboniferous strata."

Nuisance

As the court indicated, liability for private nuisance arises from acts or omissions giving rise to an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of his ownership or occupation or land, or some ancillary right. Where the defendant sued in nuisance is not responsible for the nuisance but has merely permitted it to continue then proof of negligence by the defendant is essential (see Sedleigh-Denfield v O’Callaghan [1940] AC 880). Consequently, since it was not suggested that the council caused the escape of stythe gas onto the property, any liability would arise only from failure to take reasonable steps to abate it once the council knew or ought to have known about it.

Although the claimants argued that the council should have known of the risk of the escape in question from the moment it acquired the relevant land, the court considered that the council came under an obligation to remedy the gas escape only in 2006. Before then there was no reasonable perception that the emission of stythe gas would not in the usual way be satisfactorily dissipated in the atmosphere. And since the council acquired the relevant land less than six months before the claimants acquired the property, it could not be said that the council had unreasonably failed to deal with the Burn Drift five months later.

As to delay, the court considered that "there was a culpable delay between April and the end of July 2006 during which a stand-off between the council as to which was responsible for dealing with the gas escape did cause a delayed reaction to the very real danger to the . . .[claimants]. . .and their animals which it constituted".

But although there were evidential difficulties surrounding the alleged animal asphyxiation, a significant element of alleged loss was the fee liability incurred by the claimants in appointing an expert to advise both as to their predicament and in the proceedings.

In the court’s view the evidence was clear that the council’s Principal Valuation and Estates Manager (who had assumed primary executive day to day responsibility for the council’s response to the emissions, once discovered) had: "....felt constrained to withhold materials of that kind from the . . .[claimants]. . . on advice from the council’s legal department, apparently due to a perception that information relevant to the potential liability to the council both to the . . .[claimants]. . . and to the Coal Authority should be kept confidential."

In the circumstances Briggs J found the council liable to reimburse the claimants for that expenditure since: "....reasonable steps to abate a nuisance of this potentially dangerous and frightening type did require the . . .[claimants]. . . to be kept informed of the council’s developing understanding of the cause of the problem, together with the analysis and design of the remedial works being carried out by the Coal Authority upon the council’s behalf. They were not provided with that information, and the expenditure of money on the obtaining of advice about those matters from . . .[the claimants’ expert]. . . was, in my view, a reasonable mitigation of their loss, for which they should be reimbursed."

On the issue of alleged un-marketability and un-mortgageability, the court accepted evidence that the remedial works already carried out will probably be sufficient to dispose of any significant risk of gas escape onto the property, even if not monitored or maintained in line with Coal Authority recommendations. However, Briggs J noted that the property does in fact remain un-sellable and un-mortgageable because of the combined effect of the absence of a certificate of satisfactory completion of the remedial works and the continuing existence of a dispute about their adequacy, if these works are not satisfactorily monitored and maintained in line with the recommendations of the Coal Authority which designed them.

The court noted that the law does not make the relevant landowner guarantor of the capital value of his neighbour’s land free from the consequences of a nuisance not caused by the landowner. Such landowner’s responsibility is merely to take reasonable steps to abate a nuisance once discovered. However, a certificate of satisfactory completion of the remedial works (not apparently obtained by the council, despite being requested by the claimants to do so) would be likely to go |a long way to resolve the difficulties in selling or mortgaging the land affected by the nuisance, once abated". Briggs J considered it reasonable to suppose that such a certificate would have been forthcoming from the Coal Authority if its recommendations on subsequent monitoring and maintenance were carried out.

However, the council did in its closing submissions "with some encouragement from the Court" propose a form of undertaking to carry out relevant monitoring and maintenance. Consequently, Briggs J concluded this stage of the proceedings by recording that, pending the provision of a certificate of satisfactory completion of the works and the giving of an appropriate undertaking as to their monitoring and maintenance, reasonable steps have not yet been completed by the council to abate the nuisance discovered in April 2006.

Consequently, it will be for a district judge to determine the quantification of loss suffered by the claimants in having to appoint an expert and the further steps necessary to complete the nuisance abatement by certification and undertakings as to monitoring and maintenance.

Comment

17th century poet, Andrew Marvell, complained about the coyness of his mistress since: "At my back I always hear/Time's wingèd chariot hurrying near". But (albeit in a less romantic context) the council was similarly coy, causing "time’s winged chariot" to overtake the claimants more times than they would have welcomed, before an apparently viable way forward was charted within the court proceedings.

A lesson perhaps here for council litigation lawyers. Council lawyers do of course need to represent their authorities robustly in the public interest. However, they equally need a clear understanding of the legal issues in question applicable to all material facts and circumstances if they are to provide their authorities with sound advice as to how the situation should properly and effectively be handled, bearing in mind that councils are of course custodians of the public interest.

In this case the court concluded that the council should have made available to the claimants information about the causes of the escape, the levels of gas being emitted and the design of the proposed remedial works. But when the claimant’s counsel had asked the council’s witness whether he thought the withholding of such information was fair, the judge noted that counsel had :....received the stonewalling reply that . . .[the witness]. . .did not consider himself as an expert on fairness". On the other hand, when asked would he have thought it was fair if he had been the owner of the property the witness had "quickly responded in the negative".

Such an approach does not play well and gives the appearance (even if that was not the intention) of a relentlessly defensive and context insensitive posture. Clarity of legal and factual insight, awareness of the specific nature and responsibilities of public authorities and a constant eye on the bigger picture are therefore fundamental requirements for all local authority lawyers. For an unreasonably narrow or inflexible approach may yield unwelcome consequences for all concerned.

Dr Nicholas Dobson is a lawyer specialising in local and public law is also Communications Officer for Lawyers in Local Government.