Court opens door to human rights claims

The potential overlaps between claims for damages under common law nuisance and human rights legislation have recently been explored by the Court of Appeal. Existing nuisance principles appear to rule out claims by anyone without a legal interest in the property affected, but the Court of Appeal has now left the door open for a much wider class of litigants claiming interference with human rights.

Mogden Sewage Treatment Works in Isleworth is rapidly gaining notoriety as the most litigated sewage facility in modern legal history. Dobson and others v Thames Water Utilities Ltd and another (Court of Appeal (Civil Division) [2009] EWCA Civ 28) on 29 January 2009 is the latest judicial decision in litigation that has been going on for nearly a decade, and looks set to continue for several more years yet.

Residents living near the Mogden sewage works, one of Europe’s largest, have complained about smells and nuisance from mosquitoes for many years, with a dramatic rise in complaints in 1999. In 2001, Hounslow Borough Council served a statutory nuisance notice under part III of the Environmental Protection Act 1990.

Thames Water challenged the notice’s legal validity on the grounds that the works were not ‘premises’ in law as required under the Act. A district judge agreed, as had a Liverpool judge in a similar case, but on appeal the Divisional Court of the High Court held in 2003 that a sewage works could fall within the concept of ‘premises’ as used in the Act (ENDS Report 341, pp 55-56 ).

Thames appealed to Feltham magistrates court against the notice, on the grounds of the statutory defence available under the 1990 Act that it had used the best practicable means to prevent or counteract the effects of the nuisance.

In November 2004, District Judge Stephen Day held there had been a statutory nuisance. The defence was rejected and he gave Thames two years to comply. The sums involved were large, with Thames proposing expenditure of £50-70 million to Ofwat to enclose all the main odour sources and equip them with air-cleaning plant (ENDS Report 359, pp 12-13 ).

Thames appealed against the time limit for compliance and in June 2005, the original abatement order was modified in line with a schedule agreed by the water firm and the local authority. Improvements to the works were to take place no more than three years after contracts and necessary permissions were completed, and the local council was to have access to the results of weekly testing of the odour abatement plant (ENDS Report 366, p 59 ).

Meanwhile, in Parliament the statutory nuisance provisions in the Environment Act 2000 had been amended by the Clean Neighbourhoods and Environment Act 2005 to include insects emanating from industrial, trade or business premises as a specific class of statutory nuisance. In Parliament, the minister acknowledged that the local MP for Isleworth had been one of those pressing for a change in the law.

But residents became frustrated at the protracted litigation of the statutory nuisance provisions and in 2005 began a civil claim against Thames Water. More than 1,000 residents are parties to the group claim, which had secured funding from the Legal Services Commission.

The Court of Appeal’s decision in the present case is part of the first stage of examining preliminary issues of law before the full action is heard. It was an appeal by Thames against the decision of the Technology and Construction Court of the High Court in 2007 to allow claims by individuals such as children, even where they did not have a legal interest in the affected property sufficient to bring a nuisance claim (ENDS Report 393, pp 58-59 ).

The claims alleged private nuisance caused by the negligence of Thames Water and because it was a public authority, a breach of article 8(1) of the European Convention on Human Rights guaranteeing a right to the respect of private life, with a claim for damages under the Human Rights Act 1998.

In the seminal 2004 decision of Marcic v Thames Water concerning an individual householder continually flooded by overloaded sewers, the House of Lords rejected a claim in private nuisance and under the Human Rights Act (ENDS Report 347, pp 60-61 ). The argument was that the statutory provisions regulating the water industry under the water privatisation legislation provided the appropriate mechanism for dealing with investment priorities and sewerage infrastructure.

This decision might have been considered to have ruled out private claims, but Mr Justice Ramsay in the High Court held there was no reason to apply the Marcic exclusion where negligence was claimed as an essential part of the nuisance action and compensatory damages were the prime remedy, provided this did not conflict with the Water Industry Act’s statutory mechanisms.

Thames did not appeal this part of the judgment. The real concern was how damages should be assessed where there were claims both in nuisance and under the Human Rights Act. Claims in private nuisance are essentially concerned with interference with the enjoyment of land and a claimant has always had to have a legal interest in the property affected, generally as the owner or tenant. Traditionally, damages have been awarded in respect of physical damage to the property and in respect of personal discomfort.

In the 1997 Hunter v Canary Wharf case, the House of Lords reviewed the principles of compensatory damages in nuisance claims. It was held that the nuisance action remains property based and where there has been personal discomfort, such as noise or smells, damages are strictly based on the diminution of the property’s value rather than compensation for the personal injury.

Thames questioned whether claimants without a proprietary interest, such as children living in the homes, should be entitled to separate compensation under the Human Rights Act. Any assessment of the fall in the property’s value would inevitably be a factor in the nuisance’s effect on all those living there. It followed that if the property owner has received compensation under nuisance, giving damages under the Human Rights Act to non-property owners would make Thames liable for the same damage twice.

The claimants argued that the claims in private nuisance and under the Human Rights Act were different in character. The former was assessed by the nuisance’s effect on the value of the land, the latter by the effect on the individual concerned.

The Court of Appeal re-examined the Canary Wharf decision and concluded the House of Lords had clearly stated "damages in nuisance are for injury to property and not to the sensibilities of the occupier(s). That is so as much for the case of the transitory nuisance interfering with the comfort and enjoyment of the land as it is for the case of the nuisance which occasions permanent injury to the land and to its capital value, or other pecuniary loss."

But when it came to assessing damage to property based solely on loss of amenity value, the court accepted this involved some imprecision. Estate agents could provide valuations based on notional drops in rental value, but in practice this would take into account the experience of people occupying the property. But, according to the court, it did not follow that a claimant in nuisance could be said to be recovering damages on behalf of the property’s other occupiers. When it came to a claim concerning the European Convention on Human Rights, it was clear that where the creator of a nuisance is a public authority, a breach of article 8 might be involved.

The Human Rights Act, following case-law of the European Convention on Human Rights, makes it clear that obtaining damages should not be seen as the main remedy for breach of human rights - a declaration that the rights have been breached will normally be considered sufficient. But the courts retain the discretion to award compensatory damages, though the sums will generally be modest. Where a court does decide to award damages, the Act requires it to consider other judicial remedies that have already been granted "in respect of the act concerned". The Court of Appeal considered these ‘other’ remedies were not necessarily confined to those granted to the person making the claim under the Act, but could cover legal claims by anybody in respect of the activity claimed to be a breach. It followed that where, say, a child sought damages under the Act, a court could take into account the damages already awarded to the parents who had brought a nuisance action in respect of the same intrusion.

Against those principles, the Court of Appeal concluded it was impossible to state as a question of law that claimants such as children should be excluded because their parents had secured damages under a nuisance claim. A court would have to examine each case to determine the issue. "The vital question will be whether it is necessary to award damages to another member of the household or whether the remedy of a declaration under that article 8 has been infringed suffices, alongside the award to the landowner, especially when no pecuniary loss has been suffered."

In so doing, the Human Rights Act requires a court to take into account other reliefs and remedies granted in respect of the Act concerned. The Court of Appeal considered there was no reason to limit this consideration to relief granted only to the person making the claim under the Human Rights Act. Damages awarded to the house-owner could be taken into account under the legislation.

The Court of Appeal gave a strong indication that barring unusual circumstances, a court should be reluctant to award substantial damages under the Human Rights Act to children whose parents had already received damages under a nuisance claim.

"If the effects of the odour and the mosquitoes on other family members had been taken into account in determining the diminution value of the property for the nuisance claim, we would regard this as a highly significant consideration on whether an award of damages was necessary."

The potential overlap and conflicts between actions under common law and the Human Rights Act continue to be raised in environmental litigation, and the Court of Appeal’s decision in the Dobson case helps resolve several questions in the approach courts should take. Nevertheless, the court emphasises that each case must be considered on its merits. With so many claimants involved, the Mogden legal saga looks set to continue for some time yet.