Leakey v National Trust for Places of Historic Interest or Natural Beauty
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0731-7 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 1979 |
[1979] EWCA Civ J0731-7
Lord Justice Megaw
Lord Justice Shaw and
Lord Justice Cumming-Bruce
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(On Appeal from Order of Mr. Justice O'Connor)
Mr. IAIN GLIDEWELL, Q.C. and Mr. JOSEPH HARPER (instructed by Messrs. Dawson & Co., London, W.C.2) appeared on behalf of the Appellants (Defendants).
Mr. HUBERT DUNN (instructed by Messrs. Gamlens, London, W.C.2, Agents (or Messrs. Pardoe, David & Shaw, Bridgwater) appeared on behalf of the Respondents (plaintiffs).
This appeal from the judgment of Mr. Justice O'Connor raises questions which are of importance in the development of English law. The learned judge held that the defendants are liable to the plaintiffs in damages, on a claim framed in nuisance, based on the fact that soil and other detritus had fallen from property owned and occupied by the defendants on to the plaintiffs' properties. It was accepted by the parties that the instability of the defendants' land which made it labile, and which had caused, and was likely to continue to cause, falls of detritus on the plaintiffs' land, was not caused by, nor was it aggravated by, any human activities on the defendants' land. It was caused by nature: the geological structure, content and contours of the land, and the effect thereon of sun, rain, wind and frost and such-like natural phenomena. It was held by the learned judge, and is not now in dispute, that, at least since 1968, the defendants knew that the instability of their land was a threat to the plaintiffs' property because of the possibility of falls of soil and other material. Although requested by the plaintiffs to take steps to prevent such falls, the defendants had not taken any action, because they held the view, no doubt on legal advice, that in law they were under no liability in respect of any damage which might be caused to neighbouring property in consequence of the natural condition of their own property and the operation of natural forces thereon.
Mr. Justice O'Connor has held that that view of the law is wrong. He bases his decision on the judgment of the Judicial Committee of the Privy Council in Goldman v. Hargrave (1967) Appeal Cases 645. The main issue in this appeal is whether Goldman v. Hargrave accurately states the law of England. If it does, the appeal fails, and the defendants are liable.
The opinion of the Judicial Committee in Goldman v. Hargrave,an appeal from the High Court of Australia, emanating originally from the Supreme Court of Western Australia, was delivered by Lord Wilberforce, the Board consisting of Lord Reid, lord Morris of Borth-y-Gest, Lord Pearce, Lord Wilberforce and Lord Pearson. We in this Court are not bound by that decision, as we should have been bound if their Lordships had been sitting as an Appellate Committee of the House of Lords. But there can be no suggestion that the Board regarded the law of Western Australia, on the issues which they decided, as differing in any way from the law of England. I need scarcely say that in those circumstances it would be only after the most mature consideration that this Court could regard it as right to conclude that the unanimous view of the Board did not accurately represent the law of England. Nevertheless, as the defendants in this appeal, perfectly properly and with powerful and carefully marshalled arguments, ask us to say that Goldman v. Hargrave is not the law of England, we must, equally, give these submissions the mature consideration to which they are entitled.
I shall, of course, have to return to these submissions in more detail later. But it may be helpful if at this stage I indicate briefly that the criticism offered of the decision in Goldman v. Hargrave is, in essence, that that decision involves the disregard, perhaps by inadvertence, of a principle of law laid down by the House of Lords in Rylands v. Fletcher (1868) Law Reports 3 House of Lords 330, which has, it is said, ever since been accepted and followed. If the Judicial Committee's decision assumes, or involves the proposition, that the House of Lords in Sedleigh-Denfield v. O'Callaghan (1940) Appeal Cases 880 had departed from that principle, then that was a decision which the House of Lords themselves had not been entitled to reach in 1940, in the light of the then prevailing doctrine of precedent in the House of lords: and it should not be assumed that the House of Lords had so decided,contrary to that doctrine. Alternatively, the defendants submit that, at most, the ratio decidendi of Sedleigh-Denfield v. O'Callaghan leaves it open for, but not obligatory upon, lower courts thereafter to decide that a landowner could be liable for damage to his neighbour's property although there was no unnatural use of the land and the nuisance resulted solely from the operation of the forces of nature. If that be the position as regards authority, then, the defendants submit, despite the great weight which ought to be given to the view of the Privy Council, this Court ought, with the greatest respect to that view, to reject it and to decide the question in the opposite way. It is free to do so. It should, it was submitted, hold that there is no such liability.
Having thus stated, as I thought to be desirable at an early stage of this judgment, the broad nature of the important issue which arises on this appeal, I shall now return to a more detailed statement of the facts and events which led up to this appeal. But I do not propose to go into great detail, for the issues to be decided do not depend on detail. I shall try to say no more than is desirable as giving the background to the appeal.
Near Bridgwater, in Somerset, there is a hill, rejoicing in the name of Burrow Mump. It has since 1946 been owned by the defendants, the National Trust. It is a conical hill which rises steeply, on all its sides, from the Somerset plain. Geologically, it is composed of Keuper Marl, which, as I understand it, makes it peculiarly liable to cracking and slipping as a result of weathering. At the base of its western side lie two adjacent houses, which belong to the plaintiffs. "Elm Glen" belongs to Mr. and Mrs. Leakey, the first and second plaintiffs. "Hillside", which is immediately to the north of "Elm Glen", belongs to Mr. Storey, the third plaintiff. The latter house had been constructed by the amalgamation of 2 cottages which had stood on the site for,perhaps, 200 or 300 years. "Elm Glen" was built in 1915, but there had been an earlier house or houses on the same site, going back to a time, to use the picturesque phrase, "whereof the memory of man runneth not to the contrary".
The lower part of the western hillside of the Mump which looms ever these two houses, is particularly steep. At that place it takes the form of a bank. At some unknown time in the past, it is thought, there was some cutting, by human hands and implements, for some unknown reason, of the hillside at this point. The consequence may have been to make what I have called "the bank" steeper than it would have been if nature had been left to its own workings. But, though issues were raised about this in the pleadings in the action, nothing now turns on the fact, or the possibility, that there had been this remotely distant human intervention. It is accepted by all parties that the legal rights and liabilities are to be ascertained on the assumption that the contours of the defendants' property are as nature made or developed them.
It is also to be assumed that, as admitted by the defendants in their pleading, they were not only the owners, but also the occupiers, of Burrow Mump at all relevant times. We were told by defendants' counsel that in fact the Mump, or part of it, had been occupied on lease or licence by someone to whom the defendants had given grazing rights. But, for the purpose of this appeal, the defendants, fairly and properly, do not seek to go back on their admission that they are the occupiers. It is not, therefore, a question for consideration in this appeal whether it would have effected the issue of the defendants' liability if someone else had been the occupier.
Another fact which I have already mentioned as not being in dispute, but which it is right should be emphasised, is that there has been no human activity, whether the possible long-distant cuttingof the hillside already mentioned, or any bringing of anything on to the defendants' land, or the carrying out of any work or operations of any sort on the land, which has in any way affected or increased the labile condition of the land. Its instability, its propensity to slip, which admittedly exists, is caused by nature: the contours, the geological structure and material, and the effect thereon of sun, rain, wind, frost and other natural agencies.
As a result of the operation of natural agencies on the steep contours of Burrow Mump, where its western slope rises in a bank at the back of the plaintiffs' houses, there have from time to time over the years, for many years past, been slides, often quite minor, sometimes more substantial, of soil, rocks, tree-roots and such-like detritus, from the bank, which belongs to the defendants, on to land belonging to each of the plaintiffs: on to a strip of land lying at the backs of the houses, between them and the bank, and also, on occasion, on to a piece of the Leakeys' land to the south of their house, where there was an out-house belonging to them. There were earlier complaints and discussions, into which I need not go. But, as I have already said, there is now no dispute but that, since 1968 at least, the defendants appreciated that the bank was a part of their property and that it was a threat to the houses below because...
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