A watercourse became silted by natural causes and the local authority served an abatement notice on the landowner, who failed to respond, and when prosecuted relied on a proviso which excluded from liability ‘any person other than the person by whose act or default the nuisance arises or continues.’
Held: Absent any relevant legal duty on him under statute or at common law to take positive action to remove the nuisance, the defendant was not in ‘default’.
Lord Goddard CJ said: ‘In my opinion what we have to consider is whether the obstruction in the present case was caused and was continued by the act or default of the defendants, and not whether it was caused and continued through their act, default, or sufferance. I cannot construe the word ‘default’ here in the way in which we have been asked to construe it by the Rural District Council. I do not think that in this case ‘default’ could mean merely doing nothing, unless an obligation to do something were imposed by the Act. There is no act of the defendants which caused the obstruction either to arise or continue. I can well understand that there might be a case where it might be said that a person who failed to do something which he ought to have done, such for instance as failing to prevent obstructive matter from going into a river from his own premises, had caused obstruction by his default. In the present case, on the facts found by the justices, there is nothing to show that the defendants did anything which caused this obstruction to arise or to continue; nor do I think that there is anything which can properly be called a default on their part.’
Judges:
Lord Goddard CJ
Citations:
[1951] 1 KB 115
Statutes:
Public Health Act 1936 93 259(1)(b)
Jurisdiction:
England and Wales
Cited by:
Cited – Express Ltd v The Environment Agency QBD 15-Jul-2004
The dairy appealed its conviction for allowing cream to enter a brook from the land of its customer.
Held: Polluting matter did not need to be itself noxious or poisonous, it was enough that it stained or tinted the water as did cream. Though . .
Cited – Bybrook Barn Garden Centre Ltd and Others v Kent County Council CA 8-Jan-2001
A culvert had been constructed taking a stream underneath the road. At the time when it came into the ownership of the local authority, it was adequate for this purpose. Later developments increased the flow, and the culvert came to become an . .
Cited – Manolete Partners Plc v Hastings Borough Council TCC 12-Apr-2013
Application for compensation under s.106 of the Building Act 1984 for compensation as a result of the Council exercising its powers to prevent access to Hastings Pier under s.78 of the 1984 Act.
Held: The court rejected the defence, holding . .
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.
Environment, Torts – Other
Updated: 05 June 2022; Ref: scu.200247