Liability of council in nuisance and negligence for wrongful acts of their tenants
The plaintiffs were the joint freehold owners of a shop and residential property at 147 Rylands Road, Lancaster, on the Rylands Estate, a housing estate owned by Lancaster City Council. The plaintiffs claimed that they had suffered severe harassment, including racial harassment, from tenants or persons living with tenants of the council on the estate. A number of those intimidating the plaintiffs and causing damage to their property, including petrol bomb attacks, were identifiable. The incidents had on many occasions involved gatherings on common parts of the estate, in particular outside the plaintiffs’ shop on the pavement or highway. The plaintiffs brought proceedings against the council in negligence and nuisance and the plaintiffs contended, inter alia, that those gatherings constituted a trespass on property within the power of the council as highway authority, that the council had been fully aware of the suffering inflicted upon them from 1991 onwards and had taken no possession proceedings against the perpetrators. The plaintiffs relied on: (1) the clause in the council’s standard form tenancy agreement whereby a tenant was to “show proper consideration towards other residents in the area; not to do anything which may cause discomfort, annoyance, or nuisance from noise, unreasonable or anti-social behaviour; not to discriminate against or harass any residents or visitors”; (2) the council’s equal opportunities policy which viewed racial harassment as a serious offence; and (3) Schedule 2 ground 2 of the Housing Act 1985 and section 84 which provided that a court could order possession in respect of a secure tenancy if it considered it reasonable to do so and “the tenant or a person residing in the dwelling house had been guilty of conduct which was a nuisance . . . to neighbours”. On July 15 1997 the statement of claim was struck out as disclosing no reasonable cause of action, but the judge reversed the order relying on Page Motors Ltd v Epsom & Ewell Borough Council (1981) 80 LGR 337, and concluding that it was reasonably arguable that the council could be held liable in nuisance because, as the owner of Rylands Estate, they had adopted express powers to deal with racial harassment and might well be the occupiers of the highways from which much of the trouble emanated. The council appealed.
Held The appeal was allowed.
1. The essence of the tort of nuisance was that the defendants’ use of the defendants’ land interfered with the plaintiff’s enjoyment of the plaintiff’s land. The principle that, where land had been let by a landlord to a tenant, the landlord was not liable for acts of nuisance committed by the tenant, unless the landlord had specifically authorised them, was well established (see Smith v Scott [1973] 1 Ch 314 ) and had not been extended by later authorities, such asPage Motors (supra), where the council had in effect “adopted” the nuisance, and Northampton Borough Council v Lovatt [1998] 7 EG 142 and Chartered Trust plc v Davies [1997] 49 EG 135. In the instant case, the acts complained of by the plaintiffs had unquestionably interfered persistently and intolerably with the plaintiffs’ enjoyment of the plaintiffs’ land, but did not involve the tenants’ use of the tenants’ land, since the plaintiffs were not tenants of the council, and therefore fell outside the scope of the tort.
2. Nor did the case fall within the narrow and restricted scope of claims for negligence in respect of the exercise of statutory powers: see Stovin v Wise [1996] AC 923 and X (Minors) v Bedfordshire County Council [1995] 2 AC 633). Neither of the special categories referred to by Lord Hoffmann in Stovin v Wise (supra) , applied, nor did the claim come within the limitations on claims for negligence based on the use of the land in Smith v Scott (supra). Even if it had, it would not be fair, just and reasonable in the circumstances to impose upon the council as highway authority liability in negligence. A court would be slow to hold liable in negligence “those who have been charged by Parliament with the task of protecting society from the wrongdoings of others”: per Lord Browne-Wilkinson in X v Bedfordshire County Council (supra).
3. Nor was this an inappropriate case in principle for a striking out.
Rupert Jackson QC and Natasha Joffe (instructed by Reynolds Porter Chamberlain) appeared for the appellants; Daniel Brennan QC and David Watkinson (instructed by Bindman & Partners) appeared for the respondents.