Pusey and another v Somerset County Council

Local authority – Highway – Lay-by – Appellants seeking damages for nuisance from public use of lay-by owned by respondent highway authority – Whether judge erring in law in finding no unreasonable interference with use and enjoyment of appellants’ property – Appeal dismissed The appellant owned a farm close to a crossroads and its garden was bounded on two sides by those roads, one of which was unclassified. On the opposite side of the unclassified road from the appellants’ property and about 15 metres from the crossroads, there was a strip of land adjacent to the highway which was owned by the respondents in their capacity as highway authority. The strip was about 90 metres long and wide enough to park a car or lorry. The use of that strip of land as a lay-by was well established before the appellants purchased their property in 1990. They complained that its continued use as a lay-by had encouraged litter, fly-tipping, overnight parking and an increasing number of people using the site openly as a toilet. The possibility of the respondents closing the strip and grassing it over had caused opposition from local residents who wanted the lay-by to be maintained.In May 2010, the appellants sought an injunction and damages in respect of what they alleged constituted an actionable private nuisance which the respondents as highway authority, and therefore the owners of the land, had caused or permitted. They contended inter alia that the conduct complained of had materially interfered with the reasonable use and enjoyment of their property. After careful consideration of the evidence, the judge decided that no actionable nuisance had been proved. On the facts, the court was not satisfied that the activities on the lay-by amounted to an unreasonable interference with the appellants’ use and enjoyment of their own land. The appellants appealed contending that the judge had erred in three respects: (i) he had been influenced by the issue of public benefit; (ii) he had set a threshold rather than looking at the actual degree of interference; and (iii) he had considered each element of the alleged nuisance separately rather than taking into account the cumulative effect on the appellant of the activities complained of. Held: The appeal was dismissed. (1) The question whether the use of land amounted to an actionable nuisance was one of fact and degree in every case. There had to be a real interference with the comfort or convenience of living according to the standards of the average person. A lay-by was not ipso facto a nuisance if its use was confined to the ordinary activities of parking. The shutting of doors and the sound of ordinary conversation fell within that category. Abnormal sensitivity to noise or the other matters complained of was not therefore sufficient to found a cause of action. The court had to make an assessment of the degree of interference taking all relevant circumstances into account including the character of the neighbourhood, the duration of the interference and its frequency. There was no defence to a claim for an otherwise actionable nuisance that the use complained of pre-dated the appellants’ ownership of their own property. However, that principle was qualified by the need to take into account the existing character of the neighbourhood when assessing whether the respondents’ use of its land had caused a real interference with the use and enjoyment of the appellants’ property. Absent an actual statutory authority to commit the nuisance, there was no wider public interest defence available. The judge had been right to mention the local support for the lay-by as part of the history because it was relevant to a consideration of subsequent events when the claimants challenged the use of the strip by members of the public and on some occasions were met with an extreme response: St Helen’s Smelting Company v Tipping (1865) 11 HL Cas 642, Miller v Jackson [1977] QB 966 and Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312, [2012] PLSCS 67 considered. (2) A threshold was a useful tool for the purpose of regulating a potentially intrusive activity which was to be allowed to continue but subject to restrictions on its frequency and duration. In this way its impact on the appellants could be limited and local residents who were most directly affected by an intermittent but noisy activity could regulate their lives accordingly. However, thresholds were not a legitimate means of establishing whether the degree of interference which the claimant had experienced amounted to an actionable nuisance. That was a matter of evaluating the effect of the particular incidents complained of and there was no suggestion in this case that the use of the lay-by could be regulated in that way. The judge’s summary of the frequency of the incidents complained of had been undertaken in order to assess the overall level of activity and its effect upon the reasonable enjoyment of the appellants’ property: Kennaway v Thompson [1981] QB 88 and Barr v Biffa considered. (3) Furthermore, the judge had not been misled by his analysis of the frequency and duration of the individual incidents into assessing their effect in isolation from each other rather than by considering their cumulative effect. The judge had taken into account the evidence that the incidents complained of had continued over many years. His findings, when looked at overall, did not make the disturbance caused by the use of the lay-by an actionable nuisance. He had made an overall assessment of the situation and reached a conclusion with which the appeal court could not properly interfere. Peter Harrison QC and Paul Stookes (instructed by Richard Buxton Environmental & Public Law) appeared for the appellants; David Wilby QC and Mark Lomas (instructed by Somerset County Council Legal Services) appeared for the respondents. Eileen O’Grady, barrister