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 EWHC 3253 (TCC) : 140 Con LR 135, Technology & Construction Court - John Bates
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This was a group litigation of claims by householders for odour and mosquito nuisance from Mogden Sewage Treatment Works. In addition there were claims under Article 8 of the ECHR. Because Thames Water are a body authorised under the Water Industry Act 1991 to supply water and sewerage services, such a claim would only be justiciable by the courts if it could be shown that Thames were negligent in causing odour nuisance and that the relevant negligent act was one on which the court could adjudicate without being in conflict with the statutory scheme of water regulation by the Office of Water Services (Ofwat) because of the effect of the statutory process on the funding of works. The court upheld some of the claims and found breaches of Article 8.
Some 1350 Claimants brought an action against Thames for nuisance in respect of odour and mosquitoes under the principle in Allen v Gulf Oil Refining Ltd, They pleaded allegations of negligence in respect of the operation of the Works, the design of improvement works and failures to upgrade equipment or to use chemical treatment in the Works. The judge rejected the negligence allegations in respect of the design and some failures to upgrade equipment. However he found negligence proved in respect of aspects of the operation of the works, some failures to upgrade equipment and failure to use chemically assisted treatment.
The operational failures were mainly considered justiciable by both parties as falling outside the statutory scheme. It was the capital works on which the court concentrated. As far as major plant or projects were concerned the court held that claims in respect of these these would not be justiciable as they could only be funded under the statutory process. Even where other sources of funding - such as dividends - are available, Ofwat still had a role to play in the project and thus the availability of those funds does not make the issue justiciable. However, if Ofwat had approved funding for a major project that was carried out negligently and caused a nuisance a claim in respect of it would be justiciable.
Work in respect of minor plant or projects could be funded under the capital maintenance budget which was under Thames’ control and therefore claims in respect of them involved no conflict with the statutory scheme. The fact that any claims could be brought within the statutory enforcement scheme under the Act did not mean that the courts had no role to play. Claims in respect of failure to apply to Ofwat for funding did not fall under the Allen principle.
As far as the mosquito claims were concerned the court dealt with these under the principle in Leakey v National Trust. It rejected all the allegations of negligence made and thus dismissed the claims.
The court found that Claimants’ rights under Article 8 of the ECHR had been breached and made a declaration to that effect. There were issues as to limitation under section 7 of the Human Rights Act 1988 which the court resolved by analogy with sections 28 and 33 of the Limitation Act 1980. The court, having awarded damages in nuisance to the legal occupiers of homes affected by odour, did not consider it necessary to award damages to children living in them to afford a child just satisfaction for the breach of his or her Article 8 rights.