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19/07/2012

(1) John Edward Pusey (2) Cherry Lynne Pusey v. Somerset County Council

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Court of Appeal

A landowner failed to establish excessive use of a lay-by so as to found an action in private nuisance against the local highway authority.
 
The appellant landowners (P) appealed against the dismissal of their claim for damages for nuisance against the respondent local authority (S).
 
On the far side of an unclassified road bordering P's property, lay a strip of land used as a lay-by, which belonged to S as the statutory highway authority. P had claimed that the noise, vibrations, and fumes from parked vehicles, swearing, and the use of the lay-by as a toilet had materially interfered with their reasonable use and enjoyment of their property and formed an actionable private nuisance. P had sought an injunction and damages. The judge determined that overall, the noise, fumes, and urination were not excessive and, therefore, did not amount to an unreasonable interference with P's use and enjoyment of their land.
 
P contended that the judge had erred by (1) being influenced by the issue of public benefit, in particular the local support for the continuation of the lay-by; (2) setting a threshold, rather than looking at the actual degree of interference; (3) considering each element of the alleged nuisance separately, rather than taking into account the cumulative effect on P of all the activities complained of.

HELD: (1) The judge had been correct to mention local support for the lay-by as part of the relevant history, particularly as P had met with extreme responses when challenging the use of the strip by members of the public. However, the judge had dissociated the merits of the lay-by from an objective consideration of what actually occurred and correctly had not taken into account the balance of public interest (see para.25 of judgment). (2) The application of a threshold test was not a legitimate means of establishing whether the degree of interference which P experienced amounted to an actionable nuisance. However, the judge had not used such a test, but had determined the frequency and duration of what had occurred, and assessed its overall impact on P, Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312, [2012] 3 W.L.R. 795 followed (paras. 26-29). (3) The court had to approach its task in an objective manner and decide whether there had been occasions when the average resident in the place of P would have been adversely and unreasonably affected by what was happening on S's land. For that purpose everything had to be taken into account, but any particular sensitivities of P were excluded. Although the incidents complained of had continued for many years, the urination and swearing were relatively infrequent and would have remained invisible had P not been in the practice of investigating almost any use made of the lay-by. (4) (Obiter) S's other defences did not arise as P had failed to establish an actionable private nuisance. S's arguments that (a) it had a statutory duty, pursuant to the Highways Act 1980 s.130, to protect the lawful use of the highway including parking, (b) improper use of the highway was a police matter, and (c) it had no statutory power to close part of the highway, raised important issues of general public interest (para.9).

Appeal dismissed.

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