Colin Bainbridge Willis and Another v Derwentside District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Briggs |
| Judgment Date | 10 April 2013 |
| Neutral Citation | [2013] EWHC 738 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: NE01722 |
| Date | 10 April 2013 |
[2013] EWHC 738 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
Mr Justice Briggs
Case No: NE01722
Mr Christopher Knox (instructed by Bennett Richmond Solicitors) for the Claimants
Mr Howard Smith (instructed by DWF LLP) for the Defendant
Hearing dates: 19, 20 March 2013
Introduction
This is a claim for damages in nuisance, negligence and under the rule in Rylands v Fletcher arising from the escape of CO 2 gas from land owned by the former Derwentside District Council at Hamsterley Colliery, in the county of Durham. The claimants Colin and Avril Willis are the owners of property consisting of a house and garden known as Derwentside House, Low Westwood, Hamsterley ("the Property"). They also occupy adjacent land, including two barns, as licensees of the Council, which they use as a smallholding for the breeding and rearing of animals and poultry.
The Property lies on the southern flood plain of the River Derwent. Immediately to the south of the Property there is rising ground within which lie extensive coal seams forming part of the West Durham coalfield, together with extensive disused underground coal workings.
Immediately to the south of the garden of the Property, roughly in line with its western boundary, lies the mouth of a disused drift or adit known as the Burn Drift, which runs south south- east under the Newcastle Road until it connects with the disused Hamsterley colliery workings. The mouth of the Burn Drift lies on land acquired by the council from the National Coal Board in January 1978.
For many years before it was sealed in 2006-7, the mouth of the Burn Drift was open to the air, access to it being obstructed only by an iron barred grille and undergrowth. Since it lies at the lowest part of the disused workings, the Drift formed a natural point of egress for CO 2 generated by un-worked and partly worked coal seams and residues within the workings. The effect of that natural reaction is to convert oxygen into carbon dioxide, giving rise to an atmosphere within the workings of depleted oxygen and increased carbon dioxide, known locally as black damp or stythe gas. Although not poisonous (like carbon monoxide) or explosive (like methane), the combination of reduced oxygen and increased carbon dioxide can cause loss of consciousness and asphyxiation in humans, animals and birds. Although stythe gas is likely eventually to disperse in the open air, particularly if there is any wind, its heavier than air CO 2 content means that, in still conditions, it may accumulate close to the ground in dangerous concentrations, both in the open air, and in unventilated or poorly ventilated buildings.
Ground investigations carried out in 2006 with a view to construction of a care home on land above the Burn Drift, lying between the Drift mouth and the Newcastle Road, led to the discovery that in certain atmospheric conditions large quantities of stythe gas were being emitted from the mouth of the Burn Drift. Investigations by the Coal Authority revealed that these emissions gave rise to dangerous levels of CO 2, together with oxygen depletion, in the immediate vicinity of the mouth of the Drift. Further studies revealed significantly high (albeit not immediately dangerous) levels of CO 2 within the Willises' house on the Property ("the House"). As a result of what was perceived to be an unacceptable risk to their safety, the Willises and their family were evacuated from the House at the end of July 2006. At their request (due to their wish to provide full-time care for their livestock) they were accommodated (for sleeping purposes) first in a caravan then in a portakabin at the Property, while temporary measures were undertaken to reduce the gas emissions to a safe level. Measurements within the House led to their resuming full-time occupation in it at Christmas 2006. Meanwhile, an expensive programme of permanent remedial works was undertaken for the purpose of eliminating those risks, which were completed during 2007. Those works have, thus far, been successful in preventing any further gas emissions from the mouth of the Drift on to the Property, save at a negligible level giving rise to no relevant risks or impairment of its reasonable use and enjoyment. The works consisted of a gas ventilation and revised water drainage scheme, costing in excess of £150,000, designed, commissioned and supervised by the Coal Authority but paid for by the Council.
Nonetheless the Willises seek compensation for losses incurred by them in connection both with the emissions and the remedial works under the following four broad headings:
(1) They say that the uncontrolled emissions prior to the end of July 2006 constituted a nuisance (or a Rylands & Fletcher escape) which caused the death by asphyxiation of animals and poultry kept by them at the Property and the adjoining smallholding occupied by them under licence, as well as causing them headaches and mild discomfort.
(2) They say that the defendant delayed dealing with the discovery of escaping stythe gas in April 2006, while squabbling with the Coal Authority as to the apportionment of responsibility, so that the remedial steps once taken caused unreasonable disruption, distress and inconvenience to them, until completed in 2007.
(3) They say that a tight-fisted refusal by the Council to reveal or explain the nature and causes of the gas emissions, or the thinking behind the design of the remedial scheme, led them to have to incur substantial expense in the appointment of their own mining expert to advise them.
(4) Most importantly (in terms of value) they say that the failure of the Council to obtain or make available a certificate of the due completion of the remedial scheme, or to conduct monitoring or maintenance of the remedial works in accordance with the Coal Authority's recommendations thereafter, mean that the Property is both un-mortgageable and un-saleable, and will remain so for the indefinite future, so that they have suffered a complete loss of its capital value, estimated at some £200,000.
The Council denies any monetary or other continuing liability to the Willises. In outline, they say that prior to mid-2006 there was nothing to make them aware of gas emissions from the Burn Drift, let alone at a level sufficient to give rise to a danger of asphyxiation to anyone on the Property. Thereafter they say that any risk of nuisance was abated by a proper scheme of remedial works which, regardless of any imperfections in subsequent monitoring, will satisfactorily protect the Property for the indefinite future. Further they say that the emission of stythe gas from the disused coal workings into the House came not from the mouth of the Burn Drift on their land, but from an underground pipe which drained the Drift at a point south of their land, into a manhole or sump under the House, for the operation of which as a conduit for gas they cannot be held liable, even though the pipe passed through their land on the way. In relation to the four heads of loss claimed by the Willises, the Council say:
(1) There is no evidence to show that the deaths of animals and poultry were caused by asphyxiation, still less at a time when the Council ought to have appreciated that there was a potentially dangerous emission of stythe gas from the mouth of the Drift.
(2) Although the evacuation and remedial works undoubtedly caused discomfort and inconvenience to the Willises, this was no more than the ordinary consequence of the abatement of a potential nuisance, for which no liability lies in damages.
(3) There was no need for the Willises to employ their own expert, since the remedial works were being designed, commissioned and supervised by the Coal Authority.
(4) Since the Council has abated any possible nuisance, there can be no liability for any consequence in terms of capital value of the absence of a completion certificate for the remedial works, or for any defects in on-going monitoring and maintenance. Furthermore, the remedial works will sufficiently protect the Property even if not monitored or maintained.
The legal and forensic examination of these issues over three full days (not including pre-reading or judgment writing) will, unfortunately, probably have involved effort and expense broadly equivalent to the remedial works themselves. [For reasons which will appear, that effort and expense ought to have been avoidable. It would have been avoided if the Council had adopted a less doctrinaire attitude to its legal responsibilities and a more careful approach to the monitoring and maintenance of the remedial works after their completion in 2007.]
The Evidence
The physical characteristics of the locus in quo including the Burn Drift and the relevant drainage systems were all satisfactorily depicted on helpful large scale plans and with the assistance of photographs. The relevant conveyancing history was also fully documented. Furthermore, the conduct (mainly by the Coal Authority) of the investigation, design, commissioning and supervision of the remedial works was also well-documented by surviving contemporaneous emails and, in particular, by a series of successive monthly reports by the Coal Authority.
Mr and Mrs Willis and their son Christopher each gave vivid evidence, in part backed up by diary notes, of the unpleasant experience of being, first, evacuated and then surrounded by substantial engineering works for the best part of a year. They were, understandably, unable to give reliable evidence about the timing of the death of various of their animals and poultry, save for a litter of puppies, most of whom appear to have died between April and the end of July 2006 while the gas...
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