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

2 January 2012 by

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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: