Anthony and Others v The Coal Authority
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 2005 |
| Neutral Citation | [2005] EWHC 1654 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: MT205000 |
| Date | 28 July 2005 |
[2005] EWHC 1654 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MERTHYR TYDFIL DISTRICT REGISTRY
Swansea County Court
THE HONOURABLE MR JUSTICE PITCHFORD
Case No: MT205000
John Hand QC & Gordon Wignall (instructed by Hugh James, Solicitors) for the Claimants
Paul Darling QC & Michael Daiches (instructed by DLA Piper Rudnick Gray Cary UK LLP) for the Defendant
Hearing dates: 5th - 13th July 2005
Pitchford J:
This judgment is arranged in the following sections:
Description of Claim
| Description of Claim | Paras 2–8 |
| Contents of Tip 52 | Paras 9–29 |
| Construction of Tip 52 | Paras 30–32 |
| Risk of Spontaneous Combustion at Brynlliw | Paras 33–83 |
| Activity 1982–1995 | Paras 84–90 |
| Cause of Fire 1996 | Paras 91–113 |
| Consequences of Fire | Paras 114–117 |
| Law of Nuisance | Paras 118–135 |
| Foreseeability of Damage | Paras 136–155 |
| Measured Duty of Care | Paras 156–162 |
| Conclusion | Paras 163–167 |
This is a claim in nuisance brought by seven residents of the villages of Grovesend and Waungron near Swansea, West Glamorgan, against the successor of the National Coal Board (NCB) and British Coal Corporation, The Coal Authority. The source of the alleged nuisance is a spoil tip designated No. 52 by NCB. Tip 52 served Brynlliw underground colliery principally during the period 1957–72 although coal was earlier recovered from Brynlliw between about 1908 and 1925. Tip 52 was closed in about 1971 and was declared a disused tip in 1983 under the Mines & Quarries (Tips) Regulations 1971. In 1987, with a view to returning the land to those with commons rights, NCB re-shaped and partially landscaped the tip. On 22 June 1995 the land on which the restored tip was situated was conveyed to a group of West Glamorgan Commoners for a consideration of £1.
During the summer of 1996 a fire broke out at the south western flank of the tip causing, in time, clouds of smoke and noxious fumes adversely affecting, say the claimants, the use and enjoyment of their neighbouring properties. The fire remained seated for a period of upwards of three years until remedial works commissioned by West Glamorgan County Council finally extinguished it in 2000. On nine occasions conditions were such that visibility along the M4 motorway, situated a few hundred yards to the east, became dangerously reduced causing the motorway to be temporarily closed to traffic.
Eileen Anthony, Eirwina Richards, Caroline and Peter Arthur, and Carey Knox are all home owners in Pentre Road, Grovesend. Eleanor and Richard Hill own their home in New Road, Grovesend. Mairwen Hughes owns her home at Maes yr Ellen, Waungron.
Brynlliw Colliery was situated some 9 kms to the north west of Swansea. Tip 52 occupied an area of land aligned about 500 metres long north to south and 300 metres wide west to east between the villages of Waungron in the north and Grovesend in the south. Pentre Road (also called by several witnesses Pontardulais Road) joins the two villages along a north-south route immediately to the west of the tip. Maes yr Ellen is a farmhouse to the east of Waungron and New Road is in the centre of Grovesend village.
The claimant's case is that during tipping operations on Tip 52 in the period 1957—1972 NCB created an unreasonable fire hazard because, as formed, the tip was foreseeably liable to catch fire. The Coal Authority accepts responsibility for the acts of its predecessors. The fire which broke out in 1996 was the result of spontaneous combustion caused by the hazard created by NCB; alternatively, the tip was foreseeably liable to combustion ignited by an external source. The claimants' case is pleaded in public and private nuisance. It is the claimants' case that NCB created the nuisance. Accordingly, the test is not one of a measured duty of care but foreseeability only. Further, or alternatively, NCB knew or should have known when they re-formed the tip in 1987 that it presented a fire hazard and failed to take reasonable steps to render it safe.
The defendant's case is that the creation of the tip was a reasonable user of land. The tip as formed was safe. Damage from the effects of fire caused by spontaneous combustion was unforeseeable. The 1996 fire was ignited by a third party. Even if the tip was liable to spontaneous combustion the risk of fire was so small that the use of the land was nevertheless reasonable. Nothing was done in 1987 to enhance the risk. When the land was returned to the commoners in 1995 NCB acted reasonably in requiring a covenant for aftercare of the tip.
It is agreed that the principal issues I need to address are:
i) Was the tip constructed in a defective manner, that is a manner which presented a foreseeable risk of spontaneous combustion?
ii) Was the harm contended caused by the defective condition of Tip 52?
iii) Was it foreseeable that the manner of construction of the tip would cause harm of the kind now claimed?
iv) Did the harm caused constitute a legal nuisance, public or private?
Contents of Tip 52
The first three issues identified all require analysis of the evidence how the tip was constructed and the combustibility of the material within it.
Before extensive mechanisation after the Second World War coal was won by hand tools and the separation of coal from waste largely took place underground. Waste material was used to pack the voids created by the advance. Following the use of mechanised face cutters a good deal of waste material was brought to the surface together with and/or attached to the coal. That which was commercially recoverable was treated in the coal preparation plant at Brynlliw. The residue from the plant and all other mining waste was tipped.
It is agreed that the first waste tipped between 1957 and 1960 was untreated material generated by the deepening of the shafts. It probably contained pure coal as the shafts were driven through the seams. Coal production began in 1960 and for 7 years Tip 52 was the only recipient for waste. It was then known as Tip No 1. In 1967 tipping commenced on the adjoining but separate Tip 750 (later called 850) situated on the east side of the railway line which bisected the site. At first, Tip 750 was called No 2. I shall henceforward refer to the two tips as Nos 52 and 750 respectively. Between 1960 and 1969 tipping at the southern end of Tip 52 included coal duff (small sized coal) and washery filter cake (very fine dirt/coal collected by the washery filters). During the years 1969 and 1970 the southern end was extended with coarse material to shield Grovesend village from the duff and filter cake. In 1972 tipping on Tip 52 ceased and had probably been declining for a year or so before. Peaty soil was imported from a nearby common and the flanks planted with trees.
There was mined at Brynlliw both anthracite and dry steam coal. These are both high rank coals. In the United Kingdom coals are classified by rank determined by its carbon and volatile matter content. Anthracite (rank 101/102) has a high carbon and a low volatile matter content. Lignite (rank 901) has a low carbon and high volatile matter content. It is agreed that the coal waste at Brynlliw would have comprised Ranks 102 and 201. High rank coals are the least susceptible to spontaneous combustion (self heating). The proportion of the lower rank dry steam coal in the tip is not agreed and I shall return to the issue below.
Spontaneous combustion is a phenomenon the product of natural oxidation of a mass of coal or other carbonaceous materials (e.g. wood, shale, hay). They react chemically with oxygen to produce heat (the exothermic process). If the heat is not dissipated by conduction or convection the temperature of the mass increases. The rate of chemical reaction increases until the process becomes self-sustaining and the ignition temperature of volatile matter in the material is reached. Heating may take place without ignition. Only if the ignition temperature is reached will fire break out. It was necessary on occasions during the evidence to seek clarification from witnesses whether they were using the term 'heating' in the pre—ignition or post—ignition sense.
Other factors are believed to influence the risk of self heating to ignition. Small particle size provides greater surface area per unit mass creating an increased exposure of carbon to the air. High moisture content, particularly caused by sudden wetting, can feed the process with oxygen. A high pyrite content is believed to make a minor contribution to self heating properties. Pyrite will itself oxidise causing a volume increase and micro fracturing of the coal of which it is part leading to an increase in surface area per unit mass. The susceptibility of a mass of coal or coal waste to spontaneous combustion, while known, is not perfectly understood. It is common ground that whether spontaneous combustion actually occurs will depend upon a number of factors including rank, geology, topography and local meteorological conditions.
Anthracite has the highest ignition temperature of 520°C in coal dust layers while bituminous coal (including dry steam coal) has the lowest at 170°C.
It is generally accepted that, in the absence of disturbance, the longer the mass has been exposed the less likely it is to reach ignition since the mass pre-oxidises or 'weathers' with time.
The documentary evidence in the hands of the defendant has been examined by Dr J S Edwards an expert mining engineer instructed on behalf of the defendant. Following graduation Dr Edwards was employed in 1968 by NCB as a mining engineer. In 1969 he became Undermanager at Cadley Hill Colliery in the South Midlands Area. It...
To continue reading
Request your trial
-
Hanifa Dobson and Others v Thames Water Utilities Ltd The Water Services Regulation Authority ("Ofwat") (Intervening)
...as set out in Dobson v Thames Water Utilities Ltd [2009] 3 All ER 319 at [32]–[35] or by reference to precedent as set out in Anthony v The Coal Authority [2005] EWHC 1654 at [117]. In relation to valuation, the Claimants rely on the values provided in Mr Dickinson's 11981021. In relation ......
-
Watson and Others v Croft Promo-Sport Ltd
...The Defendant submits that an appropriate award of damages would be the equivalent of a modest holiday, see Anthony v. Coal Authority [2006] Env LR 17 at §§114–117 and 163 Conclusion on damages for past nuisance 110 It is clear that an award representing loss of amenity arising from noise n......