Gillings v Kirklees Metropolitan Council

Statutory authority does not by itself immunise an undertaking from liability in nuisance. Where Parliament has authorised works, immunity depends on the statutory power being exercised without negligence in the special sense recognised in the nuisance authorities. That requires reasonable regard and care for the interests of affected persons.

A local authority must therefore consider the effect of its authorised operations on neighbouring residents and whether reasonable measures can meet competing public needs. A statutory discretion does not remove the common-law right to complain of nuisance. On the facts, the council’s failure to consider an available tactile alternative meant that the decision below was unassailable. Leave to appeal out of time was refused because the proposed appeal had no reasonable prospect of success.

Kirklees Metropolitan Council applied for leave to appeal out of time against an order of His Honour Judge Harry Walker in the Dewsbury County Court. The judge had dismissed the council’s appeal from a district judge’s judgment awarding Mrs Freda Gillings £1,000 in nuisance damages.

The nuisance claim concerned noise from a bleeper attached to a pelican crossing outside Mrs Gillings’s home. The council argued that statutory authority and the existence of a statutory discretion prevented common-law liability. The central issue was whether the authorised operation was nevertheless carried out negligently in the special nuisance sense.

1. Application dismissed. The council’s explanation for the delay was unsatisfactory. The application was nevertheless considered primarily by reference to whether the proposed appeal had a reasonable prospect of success.
2. Where Parliament directly authorises the construction and use of works, the authority carries immunity from nuisance only if the statutory power is exercised without negligence in the special sense established in Allen v Gulf Oil Refining Ltd [1981] AC 1,001 and Tate & Lyle v The Greater London Council [1983] 2 AC 509. That negligence requires reasonable regard and care for the interests of other persons.
3. The court rejected the submission that X (Minors) v Bedfordshire County Council [1995] 2 AC 633 altered that nuisance principle. The statutory-authority defence was therefore not absolute.
4. The district judge was entitled to assess the effect of the bleeper on neighbouring residents. The council had evidence that tactile knurled knobs could allow people with sight disability to use the crossing adequately and safely. If the council failed to consider that alternative, it overlooked the interests of residents affected by the noise. The finding of negligence was consequently unassailable, although the decision was narrow and fact-sensitive.
5. The court also endorsed the caution expressed in Wheeler v JJ Saunders Ltd [1996] Ch 19, at p 35, against extinguishing private rights without compensation through administrative decisions. The application for leave to appeal out of time was dismissed.

• Court of Appeal (Civil Division): refused the council’s application for leave to appeal out of time and dismissed the application.
• Dewsbury County Court: His Honour Judge Harry Walker dismissed the council’s appeal from the district judge’s order.
• District judge: judgment for Mrs Gillings, with £1,000 damages for nuisance.