PROCUREMENT


Protection Act 1990 (EPA) which is regulated by the Environmental Agency (EA).


In Ethos Recycling v Barking & Dagenham, the court held that despite the EA already using its enforcement powers to reduce the dust emissions from a recycling facility, the local authority’s subsequent abatement notice for the same problem was enforceable.


The operator of the facility sought judicial review of the magistrates’ decision. The divisional court dismissed the case; members of the public affected by the nuisance would naturally complain to their local authority which had an obligation to investigate and issue an abatement notice regardless of any EA action. The appeal of the decision will be heard later this year but, in the meantime, local authorities are likely to feel the pressure to take action in cases where the EA is already acting and operators of facilities like Ethos’s could face intervention from two sides.


Public authority nuisances


In circumstances where it is the public authority itself that causes the nuisance, the Human Rights Act 1998 (HRA) may come into play as well as actions in nuisance.


In Dobson v Thames Water Utilities claimants living near a sewage treatment works complained of odours and mosquitoes allegedly caused by the negligent operation of the works.


The Court of Appeal has given the claimant permission to appeal certain points of the case, which will be heard in due course. Put briefly, those that had a sufficient interest in the land could bring an action of private nuisance.


Jul/Aug 10


Those that did not have sufficient interest (such as child occupiers) could theoretically bring an action under Article 8 of the HRA, the right to respect one’s private and family life, home and correspondence.


In granting permission to appeal, the court observed that the law of nuisance was for injury to property not to the ‘sensibilities of the occupiers’. It did allow, however, for circumstances such as these where there was no reduction of market value of the houses but merely a loss of amenity, and an award would be assessed by looking at the actual impact on the occupiers during the relevant period. In principle, non-property owners could bring a claim under Article 8, but any award would take into account the nuisance awards already made to the property owners and, therefore, damages would likely not be substantial.


Extension of the regime - flooding


There are proposals afoot to extend the statutory nuisance regime to include two new nuisances: obstructing watercourses; and actions that aggravate the risk of run-off flooding.


This reflects the courts recent trend to hold parties accountable for damage caused by flooding if they knew it was a potential problem and could have done something to prevent it.


In Lambert v Barratt Homes, a residential development works caused flooding to homes on a neighbouring site. Both the developer and the local authority have been found liable (they are both appealing the decision). The developer was liable because the flooding was caused by it filling a drainage ditch during development.


The local authority was held liable because it owned land further up the water course and was aware of the problems caused by the development. Even though the local authority had not caused the flooding, because it was aware of the problem and had not taken steps to abate the nuisance, it was held partially responsible.


The duty on a local authority or any interested party who knew about a flooding risk is a measured one in that the cost of preventative action and other factors will be taken into account but if that party is a large developer, the court is likely to consider it has the ability to fund most types of preventative action. Local authorities may well be treated in the same way.


Reform, but only the public crime


The Law Commission is currently consulting on the reform of public nuisance but only the criminal offence and not the tort. It would include a situation like the Buncefield disaster where land is used in a way that creates a dangerous or noxious environment.


Although often made superfluous by statutory offences under environmental and anti-social behaviour legislation, the consultation proposes to keep the common law offence, perhaps codifying it as a statutory offence.


It is also considering whether the offence should require a greater degree of fault than the current requirement of negligence, so that it must be shown that the offender intended the nuisance or, at least, knew its conduct was reckless but carried on regardless.


The onus


is on the local authority to ensure that the relevant statutory nuisance is investigated


pse 39


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