Wandsworth London Borough Council v Railtrack plc

Liability for a public nuisance on or emanating from land does not depend on the landowner having created the nuisance, or on the nuisance involving physical damage. The relevant questions are whether a hazard materially affects the public’s comfort or convenience, whether the landowner knows of it, and whether reasonably available means exist to prevent or abate it. Liability follows where the landowner fails to take those means within a reasonable time. The principles of negligence and private nuisance need not be separately applied where the claim is properly one of public nuisance. The fact that the hazard is caused by natural conditions or third parties, or that a public authority has statutory powers to address it, does not transfer the landowner’s legal responsibility.

Feral pigeons roosted beneath a railway bridge crossing Balham High Road. Their droppings fouled the pavement, made it slippery and materially interfered with pedestrians’ comfort and convenience. The local highway authority, Wandsworth London Borough Council, brought proceedings for public nuisance, private nuisance and negligence, seeking a declaration, an injunction and damages.

Gibbs J found a public nuisance and held Railtrack plc liable because it knew of the infestation, could have prevented it by installing netting or mesh, and failed to do so within a reasonable time. The appeal concerned the correct basis of liability, the relevance of the pigeons’ being wild and the Council’s statutory powers, and the appropriate allocation of abatement costs and damages.

1. Appeal dismissed. The finding that the pigeon infestation and fouling substantially interfered with the comfort and convenience of the public using the highway was a finding of fact and degree, supported by overwhelming evidence.
2. Per Lord Justice Kennedy, where a public nuisance exists on the defendant’s land, it is immaterial whether it was created by the defendant, a third party or natural causes. Liability arises where the defendant knows of the nuisance, has had a reasonable opportunity to abate it, has the means to do so, and chooses not to act within a reasonable time.
3. The claim was primarily in public nuisance. It was therefore unnecessary to identify separately a duty of care, an unreasonable use of land or a breach of the ordinary negligence test. The applicable inquiry was: whether there was a hazard dangerous to, or materially affecting the comfort and convenience of, the public on the highway; whether Railtrack knew of it; and whether it had taken reasonable steps to prevent its foreseeable effects.
4. The principles in Attorney-General v Tod-Heatley [1897] 1 Ch 560 remained applicable and were not displaced by later authorities concerning private nuisance, negligence or natural hazards. The origin of the nuisance in wild birds did not alter the analysis.
5. The Council’s statutory powers, including those under the Highways Act 1980, the Local Government Act 1972, the Public Health Act 1961 and the Tyne and Wear Act 1980, did not relieve Railtrack of its common-law duty. Railtrack was responsible for the capital cost of pigeon-proofing. The Council could recover additional pavement-cleaning costs up to 1996; thereafter damages were to be assessed having regard to Railtrack’s offer to permit abatement.
6. Lord Justice Chadwick and Mr Justice Rougier agreed. The appeal was dismissed with costs, summarily assessed, and an interim payment of £15,000 was ordered on account.

1. Court of Appeal: Appeal from Gibbs J dismissed. The first-instance decision is reported at [2001] 1 WLR 368.