UK: Pigeons In Balham

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".

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 complaints.is 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.

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".

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.