Nuisance – Statutory nuisance – Tree subject to tree preservation order – Claimants complaining that tree constituting statutory nuisance – Defendant local authority investigating and finding no statutory nuisance – Whether investigation inadequate – Whether defendants’ conclusion irrational – Sections 79 and 80 of Environmental Protection Act 1990 – Claim dismissed
The claimants formally complained to the defendant council that a mature lime tree on adjoining land was causing a statutory nuisance under section 79(1)(e) of the Environmental Protection Act 1990. That section concerned accumulations, or deposits, that were prejudicial to health or created a nuisance. In the instant case, the deposit complained of was honeydew, a sticky sugary substance that was produced by aphids on the tree, which then fell onto the claimants’ roof. The tree was the subject of a tree preservation order.
The claimants maintained that the honeydew deposits encouraged the growth of mould that caused, inter alia, increased allergic sensitivity. They claimed that they had suffered serious health problems as a result, and they enclosed expert reports, including medical evidence, to support their allegations.
As required by section 79(1) of the 1990 Act, a council environmental officer investigated the complaint by, inter alia, obtaining reports from an arboriculturalist, a master thatcher and a tree surgeon, and examining the claimants’ medical evidence. The experts’ reports suggested that the levels of mould present in the claimants’ home were not excessive, or greater than were present in most thatched cottages. The officer concluded that a statutory nuisance, requiring the defendants to serve an abatement notice on the owner of the tree, pursuant to section 80 of the 1990 Act, did not exist.
The claimants applied for judicial review of that decision on the grounds that the investigation was inadequate, and the environmental officer’s conclusion was irrational. They submitted that their rights under, inter alia, Articles 2 and 8 of the European Convention on Human Rights were in question, and that the court should, accordingly, give more consideration than usual to the defendants’ actions when considering whether they had acted rationally. The defendants submitted, inter alia, that the test of prejudice to health under section 79 was an objective one, so that the issue was whether a person of average sensitivity would be prejudicially affected. The claimants contended that such a test was not appropriate where increased sensitivity had been brought about by the very conditions at issue.
Held: The claim was dismissed.
The defendants’ actions would be considered on the basis contended for by the claimants, without reaching any conclusion as to whether such an approach was required. The investigations carried out by the defendants were, in this case, reasonably practicable, and, accordingly, complied with the requirements of section 79(1) of the 1990 Act. In deciding whether those investigations had revealed a statutory nuisance under section 79, the established test of prejudice to health was an objective one, requiring an examination of whether the matter complained of would prejudicially affect a person of average sensitivity: Cunningham v Birmingham City Council [1998] Env LR 1 applied. The test remained the same where a claimant had an unusually high sensitivity, whatever the reasons for the development of that sensitivity. It followed that the question in the instant case was not whether the tree had caused the claimants’ health problems, but whether an average person would have been so affected. In the light of that, the environmental officer’s conclusion that there was no statutory nuisance within section 79(1) of the 1990 Act could not be characterised as irrational.
Stephen Tromans (instructed by Middleton & Upsall, of Warminster) appeared for the claimants; Richard Ground (instructed by the solicitor to Test Valley Borough Council) appeared for the defendants.
Sally Dobson, barrister
