Council allowing unauthorised encampment of travellers on land – Neighbours issuing proceedings claiming damages for nuisance – Activities complained of taking place on neighbours’ land – Whether activities giving rise to liability in nuisance – Judge striking out claim – Appeal allowed
The defendant council owned land on the eastern side of the A46 between Bath and Stroud, which in 1991 became occupied by travellers living in caravans. The council resolved to tolerate their “unauthorised encampment” and provided toilet, water and other facilities. The plaintiffs were tenant farmers on neighbouring land. In 1993 they brought proceedings against the council for an injunction and damages. In June 1994 the travellers were evicted. Thereafter, the plaintiffs only pursued their claim for damages. They alleged that the travellers frequently trespassed on their land, obstructed access, dumped rubbish, left excrement, tethered goats, ponies and horses thereon, stole timber, gates and fences and damaged a stone wall. It was further alleged that the travellers had permitted dogs to chase sheep, acted in a belligerent manner, assaulted the plaintiffs, stolen chattels belonging to the plaintiffs and had damaged and diminished crops and rendered them unfit for sale or consumption.
In the High Court the council relied on the decision in Hussain v Lancashire County Council (1999) 77 P&CR 89 and submitted that no actionable nuisance could be found because all the activities relied upon were those of independent third parties, and had taken place outside the council’s land. The judge accepted the submission and struck out the claim. The plaintiffs appealed contending that there was no rule of law to the effect that there could not be an actionable nuisance when a plaintiff had been injured in his use or enjoyment of his own land by the activities of third persons, which had taken place on that land and off the defendant’s land.
Held: The appeal was allowed.
The council’s submission that the claim in nuisance could not succeed, as a matter of law, was rejected. The disturbance complained of in Hussain was a public nuisance for which the identified perpetrators, who lived on the council property, could have been held liable, but their conduct had not been linked to, or emanated from, the homes where they lived. However, the plaintiffs had alleged that the travellers were allowed to congregate from the council’s land and that they used it as a base for the unlawful activities. It was at least arguable that that could give rise to liability in nuisance. Accordingly the claim should not have been struck out: Attorney-General v Corke [1933] Ch 89; Thompson-Schwab v Costaki [1956] 1 WLR 335 considered; Hussain distinguished.
Barry Payton and Philip Norman (instructed by Moger & Sparrow, of Bath) appeared for the plaintiffs; David Spens (instructed by the solicitor to South Gloucester Council) appeared for the respondents.
Thomas Elliott, barrister
