This case involved the ancient tort of public nuisance. Such a claim is addressed to behaviour which inflicts damage, injury or inconvenience on all members of a class who come within the sphere or neighbourhood of its operation. As Linden J explained, a person may bring an action in their own name in respect of a public nuisance
when they have suffered some particular, foreseeable and substantial damage over and above what has been sustained by the public at large, or when the interference with the public right involves a violation of some private right of the claimant. A local authority may also institute civil proceedings in public nuisance in its own name pursuant to section 222 Local Government Act 1972: see Nottingham City Council v Zain  1 WLR 607.
The case heading (partial screenshot above) provides a pretty comprehensive list of activities that would come within the category of “public nuisance”. I recall John Spencer’s immortal words from his article in the Cambridge Law Review on the subject in 1989:
Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common scold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so “become hurtful to the place by overpestering it with poor.” All are, or at some time have been said to be, a common (alias public) nuisance.
So as you can see, this tort encompasses quite a range of human enterprises.
Jones v. Canal & River Trust  EWCA Civ 135 – 7 March 2017 – read judgment
In recent years, the Courts have come up with a pragmatic resolution to the clash of property and Article 8 rights which typically occur in housing cases. Where the tenant is trying to use Art.8 to fend off a possession order, because he is in breach of some term of the tenancy, then the Courts, here and in Strasbourg, have resolved the issue in the favour of the local authority, save in exceptional circumstances.
But the current case of a canal boat owner raises a rather different balance of rights and interests – which is why the Court of Appeal evidently found the issue a difficult one to decide.
R (o.t.a. Oakley) v. South Cambridgeshire District Council  EWCA Civ 71, 15 February 2017, read judgment
There is, I am glad to say, an insistence these days in the Court of Appeal that the giving of proper reasons is a necessary part of what can be expected of a planning authority when it grants permission: see my post here for a case last year.
And the current case is another good example. The CA, reversing Jay J, decided that the planning authority had acted unlawfully in not giving reasons in this case.
Infinis Energy Holdings Ltd v HM Treasury and Anor  EWCA Civ 1030 – read judgment
In July 2015 the government announced that it was removing a subsidy for renewable energy. Its decision in fact was to take away the exemption that renewable source electricity enjoyed from a tax known as the climate change levy. We have covered previous episodes in the renewables saga on the UKHRB in various posts.
The appellant, the largest landfill gas operator in the UK and one of the leading onshore wind generators, challenged the government’s removal of the subsidy on the basis of the EU law principles of foreseeability, legal certainty, the protection of legitimate expectations or proportionality. At first instance the judge upheld the Secretary of State’s decision, and the Court of Appeal dismissed the appeal against this finding.
Legal and Factual Background
The subsidy took the form of an exemption for renewable source electricity (RSE) such as that provided by the appellant’s company, from the climate change levy (CCL). (The judgment is replete with these acronyms so it’s worth getting to grips with them before reading.)
Jay J, the judge at first instance, summarised the government’s reasons for removing the exemption. The government wanted to move away from a system of indirect support to one of direct support, the latter being more efficient and cost-effective. The exemption, it was said, benefited foreign generators and there were incentives and support in place that would continue to support domestic generators of renewable energy. The government had considered the impact of this decision on companies such as Infinis, but it was decided that it was outweighed by the public interest. Continue reading →
Dunnage v. Randall & UK Insurance Ltd  EWCA Civ 673, 2 July 2015 – read judgment
This is an extraordinary case, and one which goes deep down into why the law of wrongs (or torts) makes people compensate others for injury and losses, whereas the criminal law may decide that a crime has not been committed.
Imagine this. Your uncle (Vince) arrives in your home. He is behaving very hyper. Unbeknownst to you he is in the middle of a florid paranoid schizophrenic episode. He suddenly announces that he will go and fetch a copy of Autotrader from his car. He returns without it, but with a petrol can and a lighter. He sits down and becomes all aggressive and paranoid about you and your partner. He knocks over the petrol can and starts rolling the lighter trigger. After more incoherent accusations by him (e.g. “Why have you got my Hoover?”), you try to drag him clear to save him, but he ignites the lighter. You are badly burned and jump off the balcony. You are very brave. Vince dies at the scene.
You (the man with the dog) sue Vince’s estate, except you don’t really, because you are really suing his household insurers.
You try to pursue a tightrope between arguments. Vince may have been mad-ish, but not that mad, so that he is still civilly responsible for his actions. But the household policy only applies to “accidental” injury, and excludes wilful or malicious actions. So he cannot have been too sane and capable of deliberate and malicious actions.
The judge disallows your claim, on the basis that Vince lacked volition. The Court of Appeal allows it. Why?
Sims v Dacorum Borough Council  UKSC 63 – read judgment 12 November 2014 and
R (ota ZH and CN) v. LB Newham et al  UKSC 62 – read judgment 12 November 2014
A brace of cases showing the limited role which Article 8 and Article 1 of the 1st Protocol has to play in housing law, so heavily regulated by a combination of statute and contract law. The human right protections conferred, as we shall see, are mainly procedural.
The contract and property issues are well illustrated by the case of Sims. Mr and Mrs Sims had lived in a council property, until Mrs Sims left, she said as a result of her husband’s violence. For her own housing reasons she sought termination of their periodic secure joint tenancy by unilateral notice. Her husband, as the other joint tenant still living in the property, maintained in response to possession proceedings that he was entitled to remain there as a sole tenant; anything else was inconsistent with his Article 8 and A1P1 rights.
United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust  EWCA 1271 (Civ) –read judgment
Deciding whether a given consultation process conducted prior to some administrative decision was or was not sufficiently unfair to warrant challenge is not an easy task. Three connected problems commonly arise:
(1) did the public body provide adequate information to enable properly informed consultation
(2) was the consultation at a formative stage of the decision-making process, so it was a real rather than sham process?
(3) did the consultation encompass sufficient alternatives?
In this case, the judge said (see my post here) that consultees were missing important information under (1), and, on the particular facts of the case ,it should have consulted on an option which it had rejected, and so found a breach of (3).
The Court of Appeal disagreed. Both findings were wrong. The consultation process was not unfair.
R v Ahmad and others  UKSC 36, 18 June 2014 – read judgment
A bit of a familiar refrain in which A1P1, the right to property, comes in and stops an order being made which would otherwise be lawful under statute: see my recent post here on the Eastenders case.
The case concerns confiscation proceedings following the conviction of two sets of defendants for carousel fraud. A carousel fraud involves setting up a whole series of paper transactions to generate an apparent entitlement to reclaim VAT from the tax man: see the pic for an example. The VAT is repaid, at which point the money, and the fraudsters, disappear into the dust. But in these cases, they were found, prosecuted and confiscation orders made against the individuals to try and get the money back.
In the first case, the Ahmad defendants ran a company MST, and took £12.6m (£16.1m uprated for inflation) off the taxman. In the second, the Fields defendants got £1.6m (including inflation) via their company, MDL.
In each case, the order was made in those sums against each individual defendant. So each Ahmad defendant was ordered to pay £16.1m, even if some of that £16.1m was thereafter repaid by another defendant. It was this element of the order which the Supreme Court revised.
Paulet v United Kingdom Paulet (application no. 6219/08) – read judgment
The Strasbourg Court has declared, by five votes to one, that the UK authorities had acted unlawfully by seizing the wages of an Ivorian worker who used a false passport to gain employment. The majority ruled that the UK courts should have balanced individual property rights against interests of the general public.
This case on the confiscation of the proceeds of crime raises many difficult legal questions such as the nature of the link between the crime and the proceeds and the distribution of the burden of proof in establishing this link. Mr Paulet complained that the confiscation order against him had been disproportionate as it amounted to the confiscation of his entire savings over nearly four years of genuine work, without any distinction being made between his case and those involving more serious criminal offences such as drug trafficking or organised crime. The Court found that the UK courts’ scope of review of Mr Paulet’s case had been too narrow. The majority objected to the fact that the domestic courts had simply found that the confiscation order against Mr Paulet had been in the public interest, without balancing that conclusion against his right to peaceful enjoyment of his possessions as required under the European Convention. Continue reading →
United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust  EWHC 890 (Admin), Phillips J, 27 March 2014 –read judgment
Public law principles allow you to challenge a decision of a public authority if the consultation process preceding it was unfair. Unfairness comes in many shapes and sizes, but the commonest one alleged is that it was not carried out at the formative stage. The authority had already made up enough of its mind so the consultation process ceased to mean anything – it was just going through the motions.
The law is equally clear that an authority does not have to consult on every conceivable option. Indeed it can just consult on its preferred option.
But this decision shows that if it does so it has to be wary, because on the particular facts that may be unfair.
Enter our cast, challenger in the form of Rusal (proprietor one Oleg Deripaska), and the defendant, the London Metal Exchange.
Sections 50 to 57 of the Criminal Justice and Courts Bill and Explanatory Notes; the full Government response is here, 4 February 2014
At first sight, proposals full of sound and fury, and signifying not a great deal for planning and environmental challenges. There are some slippery costs changes which we need to look at, but some of the potentially more concerning proposals (see Adam’s post and the linked posts) do not fully apply to this area, as I shall explain. There are also some perfectly sensible proposals about harmonising planning challenges which lawyers have been advocating for years.
This consultation got going in September 2013 when Grayling put forward his round 2 of reform to judicial review in a wide-ranging, and frankly worrying, consultation paper. This week’s announcement and draft bill seeks to take some of these measures forward, but leaves others at home.
Mercifully, the bill does not include the ill-thought out consultation proposal to reform rules about standing in judicial review – who can complain of unlawful action by government? The proposal had been very worrying to those concerned with environmental challenges. It would have led to the rather unsatisfactory position that a NIMBY complaining about a nearby development would have been able to challenge an unlawful decision, but an entirely altruistic concern about unlawfulness affecting, say, birds, bats or habitats would have been dismissed not on the merits, but because the NGO or individual conservationist had insufficient “interest” in the outcome. See my previous post on this.
This week’s newspapers have highlighted the plight of the thousands of British homeowners who face demolition orders over their Spanish properties because they have been built without proper planning permission. Permits granted by town mayors during the property boom turn out not to be worth the paper they were written on, and since the regional authorities have overturned most of these permits, the buildings are condemned to destruction. Compensation from the developers and public officials who made these transactions possible is not forthcoming; as the Times leader points out
In a few cases, the courts have ordered that developers or town halls should compensate those who have lost their homes. Yet the former invariably opt for bankruptcy, instead, and even the latter seem markedly reluctant to pay out. Owners, often now back in Britain, face daunting and bewildering battles in foreign courts. (Tuesday 29 October, behind paywall)
The legal regime around image rights has arisen out of common law concepts of property, trespass and tort (civil wrong). The common law system means that precedents for the protection of an individual’s likeness have arisen from judges’ decisions in cases involving unauthorised exploitation of a likeness where an individual has suffered damage as a result. Some US states have enacted specific legislation equating celebrities’ personality rights with property rights, where expiration of the rights occurs 70 years following the death of the celebrity.
Malik v Fassenfelt and others  EWCA Civ 798 – read judgment
A common law rule that the court had no jurisdiction to extend time to a trespasser could no longer stand against the Article 8 requirement that a trespasser be given some time before being required to vacate:
The idea that an Englishman’s home is his castle is firmly embedded in English folklore and it finds its counterpart in the common law of the realm which provides a remedy to enable the owner of the castle to secure the eviction of trespassers from it. But what if the invaders occupy for long enough to establish their home within the keep? Whose castle is it now? Whose home must the law now protect?
This was the question before the Court of Appeal in a challenge to a possession order requiring the removal of squatters from private land.
Although there is now some doubt as to whether the leading authority on landowners’ rights against squatters is still good law, Article 8 still does not entitle a trespasser to stay on the land for ever. At its highest it does no more than give the trespasser an entitlement to more time to arrange his affairs and move out.
This is the tale of how a solicitor from Harrow ended up litigating about his off-street parking in the Supreme Court – and reached for Article 1 of Protocol 1 (A1P1) of ECHR, by way of a second string to his bow. Not his choice, as he had won in the Court of Appeal on other grounds. But his failure on the point reminds us that in the majority of cases A1P1 is a difficult argument to bring home.
Mr Cusack had been parking his car in front of his premises since the late 1960s. He got temporary planning permission for his offices in 1973, but hung on when this expired and got established planning rights in 1976.
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