Nuisance and human rights

Professor Robert Lee | 8 years ago

Isolated mosquito

The case of Dobson v Thames Water [2009] EWCA Civ 28 relates to group litigation brought by residents living in the vicinity of a Thames Water sewage treatment works (‘the works’) in Isleworth, Middlesex, and raises important questions regarding available remedies for nuisance. The claimants, who argue that they are badly affected by both odours and mosquitoes emanating from the works, consisted of two categories of people: those occupying properties as owners/lessees, and those with no legal interest in the properties in question. The action proceeded in nuisance and negligence, but breaches of Article 8(1) (right to family life) and of Article 1 of the First Protocol to the European Convention on Human Rights 1950 (right to property) were also pleaded.

An earlier High Court hearing ([2007] EWHC 2021) raised a preliminary issue relating to the damages for nuisance. Following Hunter v Canary Wharf [1997] AC 655, if there is no award for diminution of capital values on the basis that the nuisance is only temporary, damages are then assessed on the notional diminution in letting value. The claimants believed that a sum for general loss of amenity might be a more appropriate measure of their actual damage. This was partly because the ascertainment of diminution in letting value was said to be neither reasonable nor practicable, whereas, they argued,  damages for amenity loss would be just as between the parties.

A second problem arising out of the Hunter case is that an action in nuisance can be brought only by a party with an interest in the affected land. This was said to be contrary to the rights afforded by Article 8 of the Convention, such as the right to family and home life. This also raised the question of the extent of damages available under section 8(3) of the Human Rights Act (HRA) 1998 if a claimant was not entitled to damages under the law of nuisance.

On these issues, the High Court had found that the loss of amenity value of the property was not properly accounted for under Hunter principles, since this did not take into account the number of people living in an affected property. This suggested that damages based on property value might not accord ‘just satisfaction’ to the individual victims of an unlawful act contrary to s.8(3) of the HRA 1998. Assuming that problems suffered by residents were such as to breach their human rights then just satisfaction in accordance with the Convention was vital.

In certain instances, therefore, the High Court stated that damages under the Human Rights Act 1998 might be necessary to afford just satisfaction, for example to cover inconvenience, mental distress and physical suffering, taking into account factors such as the victim’s age, state of health and the duration of the suffering; see Fedeyeva v Russia (2007) 45 EHRR 10.

The Court of Appeal allowed an appeal, however, and reversed the High Court ruling. In the view of the Court, damages awarded to the owner of a property would normally amount to just satisfaction of claims brought under the Human Rights Act for breaches of Article 8 of the Convention. The problem remained, however, that this may not be so in respect of claims brought by occupiers of affected properties where such parties had no interest in the property. In line with Hunter, damages for nuisance would be awarded ordinarily only to the owner and only in respect of damage to the property.

For the owners themselves, it was highly likely that this would provide just satisfaction but, for other occupiers, their loss of amenity might go uncompensated in potential breach of Article 8 of the Convention. Sometimes, damages paid to an owner might effectively take into account wider amenity loss for other occupiers. But in order to be sure, it will be necessary, in future cases, to treat each case on its facts to ensure that any remedy provides just satisfaction of all claims. This will be so where the case is such that a breach of the Convention (usually, in nuisance cases, of Article 8) can be pleaded. Practitioners should bear this in mind when formulating actions for nuisance.

About the author

Professor Robert Lee

ERIC Director and Head of Birmingham Law School, Professor Robert Lee was co-director of the publicly funded Centre for Business Relationships, Accountability, Sustainability and Society at Cardiff University (BRASS). He is an expert on regulation, including environmental regulation and regulation of biotechnology and biomedicine. He previously worked for two top 10 UK law firms, and remains a professional-development consultant to one of the largest law firms in Europe, working on pan-European delivery of legal services.