Plaintiffs claiming damage caused by fumes from neighbour’s business – Plaintiffs issuing proceedings against council for breach of statutory duty and negligence in granting neighbour planning permission and failing to abate nuisance – Whether council liable in damages for breach of statutory duty or common law duty of care – Action struck out
The plaintiffs owned a restaurant and an attached dwelling-house at 30-32 Palace Avenue, Paignton. They claimed damage to their property and consequential loss in relation to their restaurant business amounting to over £500,000, and damages for personal injury and for nuisance. The damage was allegedly caused by fumes from the first defendant’s business, which involved spraying toys with chemical and paint sprays. The plaintiffs alleged that Torbay Borough Council had been negligent and in breach of their statutory duties under the Town and Country Planning Acts 1971 and 1990 in failing to make the necessary investigations before granting planning permission to the first defendant, in allowing the processes to be carried out and in failing to take later enforcement proceedings under under the Public Health Act 1936, the Environmental Protection Act 1990, and the Public Health (Recurring Nuisances) Act 1969. The High Court granted the council’s application for the claim against them to be struck out.
Held The plaintiffs’ appeal was dismissed.
1. Given the discretionary nature of the power conferred to grant or refuse planning permission under section 29 of the Town and Country Planning Act 1971 it was clear that the policy of the Act conferring that power was not such as to create a duty of care at common law which would make a public authority liable to pay compensation for foreseeable losses.
2. The Environmental Protection Act 1990 contained provisions which were plainly for the benefit of the public at large living within the local authority’s area. Section 80(1) reserved the right of any person aggrieved by a nuisance to make a complaint to the magistrates’ court himself and sections 79 and 80 existed in parallel with the right of a person to take private proceedings against an adjoining landowner for nuisance. Therefore there was neither reason nor necessity to create a right of action in damages based on the failure of a local authority to take action in respect of nuisance.
3. Although the authority had taken action in relation to the nuisance by serving enforcement notices, that action was not to be construed as any assumption of responsibility towards the plaintiffs, so as to give rise to a private right of action.
4. Even assuming that the actions of the council were so negligent and unreasonable as to amount to irrationality, that did not in itself suffice to create a private right of action in negligence, as opposed to founding the basis of some public law challenge to the exercise of the council’s powers.
Robin Stewart QC and Elizabeth Gumbel (instructed by William A Merrick & Co) appeared for the plaintiffs; Piers Ashworth QC and Adrian Cooper (instructed by Veitch Penny, of Exeter) appeared for the council.
