UK: Pigeons In Balham

Last Updated: 18 October 2001
Article by Stuart Pemble

This article originally appeared in a previous quarterly publication by Mills-Reeve

In any discussion of the recent decision of the Court of Appeal in Railtrack plc v London Borough of Wandsworth (30 July 2001), there is no point in beating around the bush. It is a case involving pigeon.err.droppings. Unfortunately, we can't spare you the gory details by calling the stuff `guano', because that refers to a sea bird's number two (so to speak) and the pigeons in question were all confirmed landlubbers.

The case concerned the nuisance caused to the good citizens of Wandsworth as they tiptoed somewhat gently underneath the railway bridge which crosses Balham High Street in South London. The pigeons roosted on the underside of the bridge and were sufficiently indiscriminate in their toilette to force anyone unfortunate enough to be in the vicinity to keep a weather eye out for imminent aerial bombardment, whilst at the same time trying to keep their shoes clean. Or, as Kennedy LJ, who gave the leading judgement in the Court of Appeal, put it somewhat more graphically, the "droppings fouled the pavement, and at times the pedestrians as well".

A Rum State Of Affairs

The bridge in question was built in 1929, but it was only in the last two decades that the pigeon peril had become so great that the citizens of Balham felt it necessary to register complaints on a regular basis. No explanation was provided for this fact, although Kennedy LJ did venture to suggest that the cut of the Balham jib might not be what it once was: "Whether that is because previously people were less inclined to register not clear.". To be fair, he also noted the possible causal Link between the attraction to wild pigeons of urban centres with plentiful food supply and the fact that there are 89 separate food outlets within 500 metres of the bridge.

In April 1990, the Borough obtained permission from Railtrack's predecessor in title to install netting and panels to prevent pigeons from getting into the bridge. This was quite successful, but some pigeons managed to get in anyway, became trapped and died. That led to the removal of the netting in March 1995 which, in turn, resulted in the birds returning to their natural home with the unerring accuracy of.well.homing pigeons. Unfortunately, the plumbing facilities under the bridge were no better this time round, and the Borough's postbag was no doubt once again full to overflowing with letters of complaint.

A Bridge Too Far

Following the privatisation of British Rail, title to the bridge was vested in Railtrack. The Borough was also having the pavement underneath the bridge cleaned every day. This was costing £12,000 a year. Railtrack then offered to let the Borough re-pigeon-proof (before you accuse me of inventing a neologism, that's a word used in the judgement), but only at the Borough's expense. By the time of the trial at first instance, this re-pigeon-proofing would have cost £9,000. The Borough refused because it felt that it was the responsibility of Railtrack (as the owner of the bridge) to prevent the pigeons from roosting. It therefore brought an action in public nuisance against Railtrack. At first instance, Gibbs J granted a declaration that Railtrack was liable to abate the nuisance caused by the pigeons roosting under the bridge and an injunction requiring Railtrack to carry out the work. He also awarded the Borough damages of £10,000.

In reaching this decision, Gibbs J accepted that fixing permanent netting or mesh could effectively seal off the roosting places beneath the bridge.

This finding of fact was not challenged before the Court of Appeal, giving Kennedy LJ the opportunity to deal with any public concern about the soon-to-be-homeless avian heroes and heroines of the piece: "The pigeons will move on, but they are unlikely to be such a problem for pedestrians".

Everything You Ever Wanted To Know About The Legal Liability For Pigeon Droppings But Were Afraid To Ask

The Court of Appeal had to decide whether or not Gibbs J was right to hold that Railtrack's failure to stop the pigeons roosting amounted to a public nuisance.

A party is liable in public nuisance (which is a crime as well as a tort) if it (a) does an act not warranted by law or (b) omits to discharge a legal duty which, in either case, endangers the life, health, property, morals or comfort of the public, or obstructs the public in the exercise or enjoyment of rights which are common to all. Public nuisance is different to private nuisance, which is the wrongful interference with another's use or enjoyment of land or a right connected with the land. Nor is private nuisance a criminal offence. A public nuisance can also constitute negligence if the relationship between the parties is such as to give rise to a duty of care.

The Borough was able to bring proceedings in public nuisance on the general public's behalf owing to two key statutory provisions:

  • Where there is a nuisance which affects the public right to use and enjoy the highway, the relevant highway authority (in this instance, the Borough) is empowered by section 130 of the Highways Act 1980 to bring legal proceedings to protect the public's rights.
  • Similarly, section 222 (1) of the Local Government Act 1972 enables a local authority to institute civil legal proceedings in its own name if it considers it expedient to do so for the promotion or protection of the interests of the inhabitants of its area.

Having found in favour of the local authority in relation to public nuisance, Gibbs J did not find it necessary to reach a final conclusion in relation to whether there were also causes of action in private nuisance or negligence. The Court of Appeal approved this approach. Gibbs J accepted that, although pigeon droppings can pose a health risk and make pavements slippery, neither of these was sufficient to constitute an actionable nuisance. Rather, he held that the pigeon "infestation" and the fouling of the pavement which resulted was a public nuisance in that interfered substantially with the comfort and convenience of the public, or a significant class of the public, who use the pavements. He decided this even though he accepted that Railtrack had made no unnatural or unreasonable use of its land. Railtrack's problem was that it had omitted to remedy the nuisance within a reasonable time or at all, although it could have done so. Gibbs J also accepted that Railtrack might be found liable in respect of other bridges, but it was not shown to him that the financial burden which Railtrack might face as a result of this would be enormous. Nor did he think that it was any defence for Railtrack to say that the Borough had its own statutory powers to maintain roads and deal with pigeons, or that keeping pigeons out of this particular bridge would only cause them to move elsewhere.

The Court of Appeal unanimously agreed with Gibbs J. It noted that the liability of a landowner for a public nuisance on or emanating from its land was first recognised by the Court of Appeal over a century ago in Attorney General v Tod Heatley [1897] 1 Ch 560, a decision which was then approved by the House of Lords in Sedleigh-Denfield v O'Callaghan [1940] AC 880. In order for there to be an actionable public nuisance, the claimant must show three things:

  • The matters complained of constitute a hazard (ie being dangerous to, or materially affecting the comfort and convenience of, members of the public).
  • The landowner from whose land the nuisance emanates has sufficient knowledge of the hazard.
  • Notwithstanding this knowledge, the landowner has failed to take reasonable steps to prevent the hazard.

The Court of Appeal agreed that the Borough was able to prove each element of the claim.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.