Private nuisance – Just satisfaction – Remedy – Appellants living near sewage treatment works claiming damages for nuisance and breach of human rights – Whether damages for nuisance sufficient to cover persons in same household without legal right to occupy – Whether topping up of damages possible under human rights legislation – Whether alternative remedies relevant – Appeal allowed in part
The appellants lived in the vicinity of a sewage treatment works. They were divided into two categories, namely those who occupied properties as owners or lessees and those who occupied without any legal interest. The appellants alleged that, owing to the respondent undertakers’ negligence, odours and mosquitoes from the works caused a nuisance in breach of their human rights. They sought damages for nuisance and negligence and for breach of their human rights under the Human Rights Act 1998.
Preliminary issues arose for determination and Ramsey J held that, inter alia: (i) damages for nuisance to those with a legal interest would usually afford just satisfaction to their partners and children, such that the latter were not entitled to a separate remedy under Article 8 of the European Convention on Human Rights (ECHR); (ii) however, cases might arise where others without a legal right to occupy would have a right to a separate remedy under Article 8; and (iii) accordingly, the availability of such a remedy would depend upon the facts.
The judge further concluded that damages would be awarded under section 8(3) of the 1998 Act only if, taking account of the measure of damages for nuisance and the availability of alternative remedies, such damages were necessary to afford just satisfaction. However, if a claimant remained a victim because he or she had not received just satisfaction, that person would be entitled to further damages under section 8(3). The alternative remedies under sections 80 and 82 of the Environmental Protection Act 1990, namely a complaint to Ofwat under section 94 of the Water Industry Act 1991 and a nuisance abatement notice, were all relevant in considering whether damages were necessary to afford just satisfaction: [2007] EWHC 2021 (TCC); [2008] 2 All ER 362. The appellants appealed.
Held: The appeal was allowed in part.
The judgment of the majority of the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655 established that damages in nuisance were for injury to the property and not to the sensibilities of the occupiers. That applied equally to transitory nuisance interfering with comfort and enjoyment of the land as to the nuisance that occasioned permanent injury to the land and to its capital value.
On ordinary principles, it was also clear that a claimant had to show that he had suffered a loss of amenity before substantial damages could be awarded. The actual effect upon the occupiers of the land, although not formally the measure of common law damages for loss of amenity, would, in practice, be relevant to the assessment of such damages in many cases, including the instant case, which concerned a family home and where no physical injury to the property, loss of capital value, loss of rent or other pecuniary damage arose.
Canary Wharf did not provide any support for the view that the person who had the right to sue in nuisance was recovering damages on behalf of other occupiers of the property. It followed that where a public authority had been found to have acted unlawfully, the court might grant such relief or remedy as it considered just and appropriate. No award of damages was to be made unless, taking account of all the circumstances, including any other relief or remedy granted in respect of the same act, the court was satisfied that the award was necessary to afford just satisfaction. In determining whether to award damages and in what amount the court had to take into account the principles applied under Article 41 of the ECHR.
An award of damages in nuisance to a person or persons with a proprietary interest in a property would be relevant in deciding whether an award of damages was necessary to afford just satisfaction, under Article 8, to a person who lived in the same household but held no proprietary interest.
Despite the fact that damages for private nuisance were awarded as damage to “land”, it was highly improbable, if not inconceivable, that Strasbourg would think it appropriate, just or necessary to award a further sum for breach of Article 8. Accordingly, the common law award of damages to a property owner would normally constitute just satisfaction for the purposes of section 8(3) of the 1998 Act, and no additional award of compensation under that Act would normally be necessary.
Richard Gordon QC and Robert Weir (instructed by Hugh James, of Methyr Tydfil) appeared for the appellants; David Hart QC and Michael Daiches (instructed by Osborne Clarke, of Bristol) appeared for the respondents.
Eileen O’Grady, barrister
