Anthony & Ors v The Coal Authority

Private nuisance may arise where land is used to create a hazardous state of affairs carrying a foreseeable risk of damage to neighbouring property. The ordinary use of land is not reasonable if it creates or continues a known hazard beyond the bounds of ordinary give and take between neighbours. Where the hazard was initially unforeseeable but later becomes foreseeable, the creator must take reasonable steps to abate it. The duty is measured rather than absolute. Relevant factors include the magnitude and foreseeable consequences of the risk, the cost and practicability of remedial measures, and the resources of the occupier. Foreseeability requires some understanding of the chain of events, but the precise mechanics of causation need not be predicted.

Seven residents brought claims in private and public nuisance against The Coal Authority, as successor to the National Coal Board and British Coal Corporation. The claims arose from a fire in spoil Tip 52 at Brynlliw, which began in 1996 and continued for several years, producing smoke, fumes and substantial interference with the use and enjoyment of neighbouring homes.

The claimants alleged that the tip had been constructed and later restored in a manner creating a foreseeable risk of spontaneous combustion, and that reasonable remedial measures had not been taken before the land was transferred to commoners in 1995. The principal issues were whether the tip presented a foreseeable fire risk, whether spontaneous combustion caused the 1996 fire, whether the resulting interference constituted nuisance, and what duty arose to abate the risk.

1. Liability and causation. Judgment was entered for the claimants. On the evidence, Tip 52 had a history of heatings and burnings, and its western flank was loosely compacted and vulnerable to erosion. Although the coal was generally of high rank and the scientific risk of spontaneous combustion was very low, the history of the tip and surrounding coalfield demonstrated a foreseeable susceptibility to combustion.
2. The 1996 fire was found, on the balance of probabilities, to have started by spontaneous combustion beneath the surface. The absence of evidence of a surface fire, the underground course of the fire, the condition of the flank and the exposure of fresh coal by water erosion supported that conclusion.
3. Private nuisance. Applying Sedleigh-Denfield v O'Callaghan [1940] AC 880, Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 and related authorities, the creation or continuation of a state of affairs carrying a foreseeable risk of damage may constitute an unreasonable use of land. A creator whose use was initially reasonable because the risk was unforeseeable must take reasonable steps to abate the risk once knowledge or means of knowledge arises.
4. The duty to abate was not absolute. The relevant assessment included the magnitude of the risk, the extent of possible damage, the cost and convenience of remedial work, and the defendant's resources. By 1987, NCB had sufficient knowledge or means of knowledge to require an assessment of the fire risk and remedial work to the flanks. It failed to take reasonable steps, and the potential nuisance became actual nuisance in 1996.
5. The smoke, fumes and associated effects caused substantial and repeated interference with the claimants' use and enjoyment of their properties. Damages were awarded at £3,500 for each neighbouring property.
6. The alternative case based on external ignition by trespassers failed. Such a risk did not, without more, make the use of the land unreasonable. The negligence alternative also failed. A public nuisance was established, but no separate analysis was necessary because private nuisance had already been proved.