Public nuisance: Pigeons

Public nuisance - abatement - liability of landowner for activities of wild creatures - railway bridge housing large colony of pigeons - highway users being seriously inconvenienced by droppings - bridge owner allowing claimant council to carry out proofing work on underside of bridge - whether bridge owner liable for costLondon Borough of Wandsworth v Railtrack plc: Queen's Bench Division: Gibbs J: 31July 2000

A railway bridge belonging to the defendant (Railtrack) crossed Balham High Road in South London, which had always attracted pigeons.

In 1990 the claimant highway and public health authority (the council) covered the underside of the bridge with netting in order to prevent it from being so occupied.

However, the netting was removed in 1995 following complaints about the presence of dead pigeons that had become trapped.

With the increase in nearby fast food outlets, the pigeons returned in even greater numbers.

The resulting deposit of droppings led to pedestrians and others complaining of personal discomfort, soiling of clothing and the risk of disease.

The council's street cleaning costs rose proportionately.

Railtrack was willing to allow the council to carry out permanent proofing work, but refused to bear any part of the cost.

The council brought proceedings, claiming that the state of affairs amounted to a public nuisance.

Railtrack raised various defences, including that a landowner should not be liable for the activity of wild creatures, unless they have been attracted to his land by some non-natural or unreasonable action conducted on the land.

The judge found as facts that the degree of fouling did amount to a nuisance, and that neither party was to blame for the presence of so many pigeons in the vicinity of the bridge.

Held: The council was entitled to the declaration sought.

1.

The proposition advanced by Railtrack was inconsistent with the law as developed in Sedleigh Denfield v O'Callaghan [1940] AC 880.

The claimant had rightly submitted that a person was liable for a nuisance constituted by the state of his property if, when it had arisen without his own act or default, he omitted to remedy it within a reasonable time after he became aware of it.

Older authorities to the contrary had been convincingly shown to be wrong: see Liability for things naturally on land (1930) 4CLJ 13 (Professor Goodhart).

The fact that the pigeons were feral should not affect the operation of that principle: see Proprietors of Margate Pier and Harbour v Town Council of Margate (1869) 20 LT (NS) 564 (liability for accumulation of seaweed).

Nor was it material that the claimant in the instant case was complaining of inconvenience rather than physical damage to its property.

2.

The council had not required Railtrack to do more than what was reasonable in the circumstances.

Anthony Porten and Ranjad Bhose (instructed by Judge & Priestley) for the claimant; Timothy Dutton and Giles Wheeler (instructed by Kennedys) appeared for the defendant.