Action was brought by the Council in respect of an alleged statutory nuisance caused by flooding. Under section 94 of the 1875 Act they could serve an abatement notice on the person by whose ‘act default or sufferance’ the nuisance had arisen. The authority argued that the nuisance had arisen by the ‘default’ of the owner, in failing to repair the bank. It was argued that there could not be ‘default’ by the owner within the meaning of the section unless there had been a breach of ‘an obligation arising independently of the section from an agreement or otherwise’, and that he was not under any ‘agreement or covenant or otherwise to construct or to repair the flood bank’
Held: The defence failed.
Lord Hewart CJ said: ‘In my opinion the act, default, or sufferance referred to in section 94 of the Public Health Act 1875, is an act, default, or sufferance related to the nuisance which it is sought to abate, and default no less than sufferance within the meaning of that section can occur without the breach of an obligation arising from contractual agreement.’
Judges:
Lord Hewart CJ
Citations:
[1926] 1 KB 415
Statutes:
Public Health Act 1875, Public Health Act 1936
Jurisdiction:
England and Wales
Cited by:
Cited – Hastings Borough Council v Manolete Partners Plc SC 27-Jul-2016
The council appealed against the decision that it is liable to pay compensation under section 106 of the Building Act 1984, for loss to a business on Hastings Pier arising from its closure during 2006 under the council’s emergency powers. The . .
Lists of cited by and citing cases may be incomplete.
Local Government
Updated: 05 June 2022; Ref: scu.628556
