Public nuisance – Abatement – Liability of landowner for activities of wild creatures – Railway bridge housing large colony of pigeons – Highway users seriously inconvenienced by droppings – Bridge owner allowing claimant council to carry out proofing work on underside of bridge – Whether bridge owner liable for cost
A railway bridge crossing Balham High Road in South London, and belonging to the defendant (Railtrack), had always attracted pigeons. In 1990 the claimant highway and public health authority (the council) covered the underside of the bridge with netting in order to prevent it from being so occupied. However, the netting was removed in 1995 following complaints about the presence of dead pigeons that had become trapped. With the increase in nearby fast-food outlets, the pigeons returned in even greater numbers. The resulting deposit of droppings led to pedestrians and others complaining of personal discomfort, soiling of clothing, slippery pavements and the risk of disease. The council’s street cleaning costs rose proportionately. Railtrack was willing to allow the council to carry out permanent proofing work, but refused to bear any part of the cost.
The council brought proceedings, claiming, inter alia, a declaration that the state of affairs amounted to a public nuisance, which the council were entitled to abate by carrying out the necessary work at Railtrack’s expense. Railtrack raised various defences, including the proposition that a landowner should not be liable for the activity of wild creatures, unless they have been attracted to its land by some non-natural or unreasonable action conducted on the land. The judge found as facts that the degree of fouling did amount to a nuisance, and that neither party was to blame for the presence of so many pigeons in the vicinity of the bridge.
Held: The council were entitled to the declaration sought.
1. The proposition advanced by Railtrack was inconsistent with the law as developed in Sedleigh Denfield v O’Callaghan [1940] AC 880, Goldman v Hargrave [1967] AC 645 and Leakey v National Trust [1980] 1 QB 485. The claimants had rightly submitted that a person was liable for a nuisance constituted by the state of his property if, when it had arisen without his own act or default, he omitted to remedy it within a reasonable time after he became, or ought to have become, aware of it. Older authorities to the contrary had been convincingly shown to be wrong: see Liability for things naturally on land (1930) 4 CLJ 13 (Professor Goodhart). The fact that the pigeons were feral should not affect the operation of that principle: see Proprietors of Margate Pier and Harbour v Town Council of Margate (1869) 20 LT (NS) 564 (liability for accumulation of seaweed). Nor was it material that the claimants in the instant case were complaining of inconvenience rather than physical damage to their property.
2. The council had not required Railtrack to do more than what was reasonable in the circumstances: see, generally, the judgment of Megaw LJ in Leakey.
Anthony Porten and Ranjad Bhose (instructed by Judge & Priestley) appeared for the claimants; Timothy Dutton and Giles Wheeler (instructed by Kennedys) appeared for the defendant.
Alan Cooklin, barrister