Liability of landowner for activities of wild creatures – Railway bridge housing large colony of pigeons – Highway users seriously inconvenienced by droppings – Bridge owner allowing claimant council to carry out pigeon-proofing work on underside of bridge – Whether bridge owner liable for cost – Judge finding bridge owner liable – Appeal dismissed
A railway bridge crossing Balham High Road in South London, belonging to the defendant (Railtrack), had always attracted pigeons. In 1990 the claimant highway and public health authority (the council) covered the underside of the bridge with netting in order to prevent the birds from occupying it. However, following complaints about the presence of dead pigeons that had become trapped, the netting was removed in 1995. With the increase in nearby fast-food outlets, the pigeons returned in even greater numbers. The resulting deposit of droppings led to complaints of personal discomfort, soiling of clothing, slippery pavements and the risk of disease. The council’s street-cleaning costs rose proportionately. Railtrack was willing to allow the council to carry out permanent pigeon-proofing work, but refused to bear any part of the cost.
The council brought proceedings, claiming, inter alia, a declaration that the state of affairs amounted to a public nuisance, which the council were entitled to abate by carrying out the necessary work at Railtrack’s expense. Railtrack raised various defences, including the proposition that a landowner should not be liable for the activity of wild creatures, unless they have been attracted to his land by some non-natural or unreasonable action conducted upon the land. The judge found that the pigeon infestation and fouling amounted to a nuisance. He held that the council were entitled to the declaration sought because a person was liable for a nuisance constituted by the state of his property if, when it had arisen without his own act or default, he omitted to remedy it within a reasonable time after he became, or ought to have become, aware of it.
Railtrack appealed, contending that: (i) the judge had failed properly to apply Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485, in that he had distinguished between liability in nuisance and negligence when, in the circumstances, there was no proper distinction between the two torts; and (ii) he had been wrong to extend the principles set out in Leakey to a case that did not involve a nuisance causing physical damage to neighbouring land, but only an interference with the enjoyment of that land, which arose from the activities of wild birds and not from the state of Railtrack’s land.
Held: The appeal was dismissed.
1. Where the cause of action was public nuisance, Attorney-General v Tod Heatley [1897] 1 Ch 560 represented the law, and nothing in later authorities suggested otherwise. Where a public nuisance arose on a defendant’s land, it did not matter whether it was created by the defendant, a third party, or natural causes. If the defendant was aware of it, had had a reasonable opportunity to abate it, had the means to abate it and had chosen not to do so, then he was liable, and there was no reason to approach the matter as though it were a claim in negligence or private nuisance.
2. The judge had been entitled to find that a public nuisance existed and that the defendant had the necessary knowledge and opportunity to abate it. The matter was not concerned with pigeons in general but the nuisance caused by the pigeons under the railway bridge, which was a nuisance that Railtrack had a clear duty to address. Further, there was no reason why the capital cost of pigeon-proofing the bridge should not fall wholly upon Railtrack.
Anthony Porten QC and Ranjit Bhose (instructed by Judge & Priestley) appeared for the claimants; Timothy Dutton QC and Giles Wheeler (instructed by Kennedys) appeared for the defendant.
Thomas Elliott, barrister
