Laches not a bar to claim in nuisance for sewage leaks

In determining a defence of laches, or delay, not amounting to a limitation bar, the court must consider the length of the delay and the nature of acts done during the interval to decide where the balance of justice lies. The High Court has considered this principle dismissing an appeal in Martin v Cooper [2024] EWHC 3296 (KB). The case concerned a dispute between neighbouring landowners in Stainton with Adgerley, Barrow in Furness. Cooper owned 1 Gleaston Lane, and Martin owned 2 Gleaston Lane. They had been neighbours for more than 20 years. Martin succeeded in his county court claim against Cooper for nuisance and obtained an injunction requiring Cooper to prevent sewage leaking from his septic tank system into the garden of No 2. Cooper was granted permission to appeal on the ground that the judge was wrong to reject the equitable defence of laches. He sought reversal of the judgment and dismissal of the claim. The judge had referred to Lindsay Petroleum Company v Hurd [1873] 5 AC 221 which established that the doctrine of laches encompasses a situation where it would be practically unjust to give a remedy where a party by its conduct has done something which might fairly be regarded as a waiver or by its waiver and neglect has put the other party in an unreasonable position if the remedy were to be asserted. In either case, lapse of time and delay are critical including the length of the delay and the nature of acts done in the interval. The judge decided there was nothing equivalent to a waiver in the case. Martin complained at the end of 2012. In 2013 and 2014 he tried to pursue a remedy through the local authority’s environmental health department. Every now and then there would a visit, a test or an observation which in 2014 and 2015 were negative. There was support for Martin’s complaints in 2016 and he might have expected Cooper to act, but he did not. There was unexplained delay in 2017 and 2018. A letter before action was sent in June 2018 and proceedings issued in 2019. The actual delay was not great, and Cooper did not claim that he thought the whole thing had lapsed so there was no prejudice to him. Dismissing the appeal the High Court considered the judge was correct in his statement of the law and that he made a proper balancing of factors. He was entitled to reach the conclusion he did. Louise Clark is a property law consultant and mediator