Coal tip case clarifies nuisance liability principles

The High Court has recently held the Coal Authority liable in nuisance to local residents following a three-year fire at an old coal spoil tip near Swansea. The decision in Anthony and others v the Coal Authority (High Court 28 July 2005 [2005] EWHC 1654 (QB)) contains a valuable analysis of contemporary principles of nuisance, and will have relevance to anyone involved in restoring potentially hazardous sites.

The civil action was brought by seven residents living near a spoil tip used principally between 1957 and 1972, and declared disused in 1983. The tip was subsequently landscaped and eventually sold for a nominal sum to local commoners for use for grazing in 1995.

In 1996 a fire broke out, giving rise to extensive smoke and fumes for some three years. The residents' claim was based on their loss of use and enjoyment of their homes as a result. The action was brought against the Coal Authority, the successor to the National Coal Board which had constructed the tip.

The principal claim was based in private nuisance. Mr Justice Pitchford accepted on general principles that it was not necessary to show negligence, but it was necessary to establish that the defendants' use of their land was unreasonable in the circumstances and that the damage caused to the neighbours was foreseeable.

The Coal Authority argued that the use of the land as a coal tip was reasonable, but Mr Justice Pitchford considered that the creation of such an artificial structure "giving rise to the potentiality of damage to one's neighbour may be an unreasonable use of land for which the creator would be liable."

The key issue of dispute concerned forseeability. Much of the two-week trial was taken up with expert evidence concerning the nature of the tip and the likely cause of the fire. Although there were arguments that it might have been started by trespassers, Mr Justice Pitchford concluded that it was more likely to have been caused by spontaneous combustion.

He accepted that while the susceptibility of a mass of coal or coal waste to spontaneous combustion was known and the detailed processes were understood, whether combustion actually occurred was dependent on local factors such as geology, the carbon and volatility content of the coal, geology, topology and local weather conditions.

Looking at previous leading cases in nuisance, Mr Justice Pitchford held that the creation of a state of affairs on land that at the time carries an unforeseeable risk of damage was not actionable in nuisance. But liability may change over time: "If, however, by the improvement of knowledge, scientific or otherwise, the risk becomes foreseeable, one is under a duty to abate that state of affairs, and if one fails to fulfil the duty to abate it, then, on the occurrence of damage, the nuisance is actionable."

Hindsight, as the court noted, was of no value in determining whether the damage was foreseeable, and the court considered three key historical periods: 1957-1971 when the tip was active, 1972-1988 when it was closed and re-landscaped, and finally, 1989-1995 when it had been fully restored.

During the first period, Mr Justice Pitchford was satisfied from various official reports since 1945 that it was well known in the coal industry that spontaneous combustion was liable to occur in coal tips and that if it did, serious nuisance might result.

However, he also accepted that until the 1970s the risk of spontaneous combustion was closely associated with the ranking of the coal according to its carbon and volatile matter content. The coal and coal waste in the tip concerned was a high rank coal considered to be the least susceptible to combustion. The judge considered that during this first period the management believed the risk of spontaneous combustion on the tip was negligible.

But between 1972 and 1983 when tipping had ceased, he concluded that the evidence had established that the tip was known to be a risk for spontaneous combustion. Any danger presented was being kept under check by regular inspections and prompt remedial action by employees.

If the land had been sold in 1983, Mr Justice Pitchford concluded that the recent history would have required extensive remedial measures. During the next 12 years there were no recorded cases of spontaneous combustion, but this did not, in the court's view, render the risk of combustion or damage to neighbours unforeseeable.

Nevertheless, the absence of any recorded instances during this period appears to have lulled the owners into considering that any likely risk of fires would be started by trespassers or other external sources, and the focus was to prevent this occurring rather than considering spontaneous combustion.

During the period of restoration until the sale of the land, Mr Justice Pitchford felt that close attention had not been given to the condition of the site, and that no one had carried out an assessment that took into account the history of the site.

Evidence from those involved in the restoration indicated that vandalism and third parties had been considered the main source of potential fire hazards. However, Mr Justice Pitchford was "deeply unimpressed" with the management's state of mind on this issue: "There was a history of heatings on this tip, a few of which had led to fires which could not be put down to outside agency."

One of the important factors that the Court noted was the failure of management to consult its former staff working in the coal-field: "What is clear is that when the colliery closed, nobody consulted the colliery staff with a view to reaching an accurate appreciation of remedial works necessary to restore the tip to the commoners in a safe condition. No one gave a thought to the historical fire risk, only to satisfying the commoners and the planners, none of whom were told about any risk of spontaneous combustion."

Mr Justice Pitchford considered that as a matter of principle the Coal Authority was liable only to expend a reasonable cost in avoiding the nuisance once they were aware of the potential risk. However, he was satisfied that they had failed to do so. Special arrangements to continue inspection following closure or civil engineering steps to remove or reduce significantly the risk of spontaneous combustion were necessary and could have been achieved at reasonable cost well within the defendant's capacity.

The residents' claim for damages was based on loss of use and enjoyment of their property during the three-year period of fire. Generally sums awarded in such cases are surprisingly small when compared to property or personal injury damage. Based on previous awards in equivalent cases, Mr Justice Pitchford awarded the sums of £3,500 for nuisance to each of the claimants.

The Coal Authority is reported to be considering an appeal, no doubt not so much to do with the sums involved in this case but because of the precedent it may be felt to raise for other cases.

Much of the judgment in Anthony and others v Coal Authority is concerned with the assessment of detailed evidence of witnesses and competing experts which is relevant only to the facts of the particular case. Nevertheless, the case contains important general principles concerning future liabilities for hazards posed by coal tips and areas such as old landfill sites.

It is pertinent that owners need to ensure, in any assessment of risks, that historical knowledge is not lost or overlooked - particularly that of employees and former employees.

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