Lippiatt v South Gloucestershire Council

A private nuisance claim is not barred merely because harmful activities by third parties occur off the defendant’s land. An occupier may be liable where persons remain on its land, with its knowledge, and use it as a base for repeated harmful acts interfering with a neighbour’s land. The liability is for a continuing state of affairs on the defendant’s land, or potentially for a nuisance created or adopted by the occupier, rather than vicarious liability for each individual trespass. The precise basis of liability, available defences and damages remain matters for trial. A pleading disclosing an arguable nuisance should not be struck out before evidence is heard.

Tenant farmers claimed damages from the Council for nuisance arising from the presence of travellers on Council-owned land beside the A46. The travellers allegedly committed repeated trespasses and other harmful acts on the farmers’ land. The Council knew of their presence, tolerated the encampment and provided facilities. The travellers were evicted before trial, leaving the damages claim.

At the opening of the trial, the High Court (Chancery Division), presided over by His Honour Judge Weeks QC, struck out the statement of claim and entered judgment for the Council. The judge considered that the pleaded acts occurred off the Council’s land and therefore could not amount to nuisance. The central issue on appeal was whether the pleaded facts disclosed an arguable private nuisance despite the third parties’ off-site activities.

Appeal allowed unanimously. The order striking out the statement of claim was set aside and the action was remitted for trial.

1. Scope of private nuisance. Evans LJ held that there was no rule of law preventing an owner or occupier from being liable in nuisance where licensees or other persons based on the defendant’s land repeatedly interfere with a neighbour’s land by acts committed off-site. The approach was supported by Attorney-General v Corke [1933] Ch 89, Smith v Scott [1973] 1 Ch 314 and Thompson-Schwab v Costaki [1956] 1 WLR 335. The general requirement for an emanation from the defendant’s land, discussed in Hunter v Canary Wharf [1997] AC 655, could be satisfied by the travellers themselves using the Council’s land as a base.
2. Nature of the liability. Mummery LJ emphasised that the claim was not one of vicarious liability for individual trespasses. It concerned a continuing and potentially injurious state of affairs on the Council’s land: the presence of persons known to commit repeated harmful acts on neighbouring land. Evans LJ left open whether the better analysis was that the Council had created the nuisance by permitting occupation and use of the land as a base, or had adopted a nuisance created by the travellers. Staughton LJ added that failure to remove licensees or trespassers after their habitual misbehaviour became apparent could support adoption.
3. Effect of Hussain and Page Motors. Hussain v Lancaster City Council (1999) 77 P. & C.R. 89 was materially different because it concerned tenants whose off-site conduct was not linked to or emanated from their homes. Page Motors Ltd v Epsom and Ewell B.C. (1981) 80 L.G.R. 337 concerned activities of trespassers on the defendant’s land and did not preclude the present claim.
4. Striking out. The pleadings disclosed a reasonably arguable case. Evidence should have been heard to determine liability, defences and damages. The action was remitted to the Bristol District Registry for trial. The Council was ordered to pay the costs of the appeal and one half of the costs of the hearing below.

1. Court of Appeal. The appeal was allowed, the striking-out order was set aside and the action was remitted for trial: [1999] EWCA Civ 1151.
2. High Court (Chancery Division). His Honour Judge Weeks QC struck out the statement of claim at the opening of the trial and entered judgment for the Council.