Court of Appeal
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  EWCA Civ 312,  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).
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