Smells and mosquitoes but no extra damages under the Human Rights Act

Dobson and others v Thames Water Utilities Ltd [2011] EWHC 3253 – read judgment

David Hart QC acted for the defendants in this case. He has played no part in the writing of this post.

An operator carrying out activities authorised by legislation is immune from common law nuisance liability unless the claimant can prove negligence. Any damages for such a nuisance will constitute “sufficient just satisfaction” for the purpose of the Human Rights Act; even if breach of a Convention right is proved, no further remedy will be available.

Background

It has been a long established canon of common law that no action will lie in nuisance against a body whose operation interferes in one way or another with neighbouring land, where Parliament has authorised the construction and use of an undertaking or works, and there is a statutory scheme in existence which is inconsistent with such liability.

So for example where a water utilities company is authorised by legislation to provide adequate sewerage systems, this is a duty enforceable by the relevant regulator (Ofwat in this case). It is therefore not open for the courts to consider, on a claim brought by a member of the public for flooding or some other property-damaging effects, whether that company should have allocated its resources differently. Only if the flooding or odour affecting properties in the vicinity have been the result of provable negligence on the part of the operator may the courts consider whether there was a better way of doing things. But even then, there is this hurdle of “justiciability” – i.e., whether the determination of a question is a matter for the courts. A common law duty on the water utility to press its regulator for capital funding is simply not justiciable in that way and any submission by the claimants that Thames Water owed them a duty to apply for funding for the purpose of carrying out capital works fell on the “non-justiciable side of the boundary”.

Furthermore, it is only if lack of care or regard by such a utilities operator can be established that an operation may be considered unlawful under Section 6 of the Human Rights Act 1998 for breach of one of the Convention rights – in nuisance cases, usually the right to respect for home and family life under Article 8, or, more rarely, the right to peaceful possession of property under Article 1 Protocol 1. As the House of Lords put it in Marcic v Thames Water Utilities Ltd, the defendant water authority was “no ordinary occupier of land”, and therefore its obligations regarding sewers could not sensibly be considered without regard to the statutory scheme, under which Ofwat, as the economic regulator of the industry, had to determine what works of improvement to those systems could properly be charged by the utilities to their customers.

But if the claimants in nuisance can establish negligence, the claim will stick, and any allegation of a violation of a Convention right will be allowed. Dobson involved a similar set of circumstances to Marcic, except the damage alleged involved odours and mosquito infestation from the defendant’s sewage operation rather than sewage flooding. The complexity of the facts and expert evidence is reflected by the judgment which runs to over a thousand paragraphs, but for our purposes the main points to be drawn from Ramsey J’s conclusions are as follows.

Statutory authorisation a defence to nuisance in the absence of negligence

Ramsey J held that the Marcic principle did apply to such works, but only to circumstances where the steps which the claimants said should have been carried out were of a capital, rather than a maintenance, nature. The “Allen” principle, which says that legislative authority immunises an operation from any action based on nuisance, did not apply where the alleged failures are caused by negligence. Additionally, if, as in Marcic, the underlying allegation was that the water utility should have prevented the interference by spending more money on prevention and improvement of its plant, this is non-justiciable because it is the regulator’s task to make that decision, not the courts’. If Thames Water had carried out the sewage operation without negligence, they would not have been liable in nuisance for the inevitable result of operating those works, taking into account what was possible in terms of scientific knowledge at the time, practical feasibility and expense. However on the evidence before him, the judge found some negligence in some specific respects and therefore the water company was liable to local residents for those respects, but only insofar as its failure to control odour from its sewage facility was due to its failure to have reasonable regard and care to the interests of other persons. Other complaints about other aspects of the works were ruled out as being non-justiciable.

Liability under the Human Rights Act 1998

The claimants submitted that odours and mosquitoes from the defendant’s works had not only caused them a nuisance but had breached their rights to respect for home life under Article 8. In general, where common law actions and HRA claims overlap in environmental litigation, courts are reluctant to cede more ground to Convention claims. But in this case Ramsey J found that to the extent that Thames Water had failed to carry out the work and conduct at the sewage operation with all reasonable regard and care for the interests of other persons, it had caused an actionable nuisance. Insofar as such negligence had been established, he considered that the defendant’s acts had been of “sufficient severity” to constitute a potential interference with the claimants’ Article 8 rights. The fact that Thames Water had statutory authority to operate the works did not mean that they could escape liability under Article 8(2) for acts carried out by them where they failed to have reasonable regard and care; accordingly, it followed that the defendant had committed unlawful acts for the purposes of Section 6(1) of the Human Rights Act 1998.

Damages under the Human Rights Act for nuisance claims

But the claim for a remedy under the 1998 Act proved more of an uphill struggle than establishing a breach. The issue arose because damages in nuisance can only be claimed by those with a proprietary interest in the property affected; nuisance affects land, not people. So those family members of tenants and owners in Dobson who did not themselves have a legally recognised interest in the property were not entitled to common law damages for nuisance. So they sought separate damages for breaches of their rights under Article 8. However this cut no ice with Ramsey J who considered that the common law damages awarded to the proprietary owners constituted “just satisfaction” under for the purposes of section 8(3) of the Human Rights Act. Those without proprietary interests were not entitled to additional compensation under the 1998 Act, since the judge had already had regard to all of the evidence of effects of the nuisance on non-proprietary residents, and this evidence had been taken in to account in determining the diminution in the amenity value of the property.

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