Hussain v Lancaster City Council

Technical private nuisance requires an interference with the claimant’s enjoyment of land arising from the defendant’s use, or permitted use, of land under the defendant’s control. A landlord does not become liable for a tenant’s nuisance merely through knowledge and failure to enforce available covenants or possession rights. Liability may arise where the landlord authorised the nuisance, let premises for a purpose which necessarily involved it, or adopted a nuisance on land which the landlord occupied or controlled.

A public authority’s failure to exercise statutory powers to prevent third-party wrongdoing gives rise to a negligence duty only within narrow limits. The omission must fall outside the statutory discretion, and imposing liability must be fair, just and reasonable.

The respondents owned a shop and residential property on a housing estate owned principally by Lancaster City Council. They alleged prolonged racial harassment, threats, criminal damage and fire attacks by numerous council tenants, members of their households and other persons. They claimed that the Council knew of the conduct but failed to use tenancy enforcement, possession, injunction and highway powers to stop it.

Master Rose struck out the nuisance and negligence claims as disclosing no reasonable cause of action. Mr Harry Wolton QC, sitting as a deputy High Court judge in the Queen’s Bench Division, reversed that order. The Council appealed.

The central questions were whether the alleged conduct fell within technical private nuisance, whether a landlord could be liable for failing to prevent its tenants’ conduct, and whether failure to exercise powers under the Housing Act 1985 and Highways Act 1980 could support a duty of care.

1. Appeal allowed unanimously. Hirst LJ delivered the leading judgment. Thorpe LJ agreed completely and gave additional reasons. Hutchison LJ agreed with both judgments. The respondents had no viable cause of action in nuisance or negligence, and Master Rose’s order striking out the action was reinstated.

2. Technical private nuisance concerns an interference with the claimant’s enjoyment of land arising from the defendant’s use of land. Although the alleged harassment interfered persistently and intolerably with the respondents’ enjoyment of their property, it did not involve the tenants’ use of their tenanted land. It therefore fell outside the tort’s scope.

3. A landlord is not generally liable for a nuisance committed by a tenant unless the landlord authorised it or let the premises for a purpose which necessarily involved a nuisance. Knowledge of likely or continuing misconduct, receipt of rent and failure to enforce a covenant against nuisance do not by themselves amount to authorisation, continuation or adoption.

4. Page Motors Ltd v Epsom and Ewell Borough Council [1982] LGR 337 was distinguishable. The council there controlled the land occupied by trespassers, deliberately continued their occupation for policy reasons and provided facilities, thereby adopting the nuisance. Northampton Borough Council v Lovatt [1998] 7 EG 142 concerned the statutory meaning of nuisance and annoyance in possession proceedings, rather than a landlord’s tortious liability. Chartered Trust plc v Davies [1997] 49 EG 135 depended upon a shopping-centre landlord’s retained control and special management obligations.

5. The negligence claim rested upon alleged failures to exercise statutory housing and highway powers. Under X v Bedfordshire County Council [1995] 2 AC 633 and Stovin v Wise and Norfolk County Council [1996] AC 923, negligence liability for failing to exercise a statutory power is exceptional. The respondents could not satisfy the necessary preconditions. Nor was it fair, just and reasonable to impose liability where decisions about preventing widespread third-party wrongdoing required policy choices, resource allocation and multi-agency co-operation.

6. The settled law made the claims certain to fail even if every pleaded allegation were proved. A lengthy trial could not alter that conclusion. Thorpe LJ added that the gravity of the criminal harassment, the number of perpetrators and the absence of a legal relationship between some perpetrators and the Council reinforced the need for a multi-agency response rather than a civil claim against one agency.

1. Court of Appeal: Allowed the Council’s appeal unanimously and reinstated Master Rose’s order striking out the action. Leave to appeal to the House of Lords was refused.
2. High Court, Queen’s Bench Division: Mr Harry Wolton QC, sitting as a deputy judge, reversed the Master’s order on 2 October 1997 and permitted the action to proceed.
3. Master: Master Rose struck out the statement of claim and dismissed the action on 15 July 1997 because it disclosed no reasonable cause of action.