Wandsworth London Borough Council v Railtrack Plc

JUDGMENT: APPROVED BY THE COURT FOR

HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

1. Outline of Claim

This case is about pigeon droppings. The pigeons whose activities have led to these proceedings roost under a railway bridge which belongs to the Defendants. It carries a railway above a busy street in South London, that is, Balham High Road; it lies within the London Borough of Wandsworth, for whom the Claimants are the Local Authority. There is nothing inherently wrong with, or unusual about the bridge. It does the job for which it was designed, namely, to carry trains regularly and safely over the street.

However, the fact is that as with many such bridges, the underside of its structure is made up of a large number of horizontal girders, struts and ledges which run criss-cross over the whole of its surface area. These form a ceiling under which cars have to drive. More significantly for this claim, many pedestrians have to pass under it. The underside of the bridge is undeniably a favourite place for pigeons. The pedestrians below have to suffer the obvious consequences in terms of the effects on them and on the pavement below. The Claimants say that this is all the responsibility of the Defendants as owners of the bridge. They claim that the state of affairs which has arisen on the Defendants' bridge because of the pigeons amounts to a public nuisance, a private nuisance and/or actionable negligence for each of which the Defendants are liable. The Defendants deny that the proven facts demonstrate nuisance. They say that even if they do, the Defendants are not responsible for it, nor are they negligent, or, even if they are then the Claimants are liable to contribute to the cost.

Pigeon Behaviour

There is no doubt that the structure of the bridge is an attractive place for pigeons wanting to roost; that might seem an obvious proposition. However, as with many such obvious propositions there is a sound scientific explanation for it. The remote ancestors of these urban pigeons were rock doves which roosted and nested in cracks and crannies in the side of cliffs. In more recent times pigeons have moved in large numbers into towns and cities. Many of course have been tamed or trained by pigeon fanciers. Such pigeons enjoy not dissimilar roosting places in the form of dovecotes and pigeon lofts. It seems that each year some thousands of these fly off and join the flocks of their wild or "feral" counterparts. What attracted and continues to attract these birds into urban areas? The answer is simple enough: food. Like most living creatures they are drawn to those places and environments where there is the wherewithal to support themselves and their young. The court has had the advantage of hearing Mr Timothy Goodwin, a well qualified expert in environmental biology and ecology. He has extensive experience of the behaviour of wild animals and bids, he has studied their relationship with the environment generally, and humankind in particular. The substance of mist if not all of his expert opinion is unchallenged. We learn from him that the conflicting attitudes of people towards pigeons go back a long way. As early as the 14 ^th Century Londoners irate with pigeons at St. Paul's Cathedral were throwing stones at them, thereby breaking windows much to the Bishop's consternation. There is no evidence that the population of Balham has resorted to this form of self help. There are undoubtedly several human activities which contribute deliberately or otherwise to the attractiveness of urban areas by increasing food sources for pigeons. These include the actual feeding of pigeons, the more common and acceptable activity of putting out food for all visiting birds in domestic gardens, also, and perhaps according to Mr Goodwin, most significantly the deposit accidentally or otherwise of waste foodstuffs in places accessible to pigeons. Examples of this may be careless disposal of rubbish from restaurants, or individual people dropping food scraps in the street.

Since it is principally food which attracts pigeons it follows that the more food there is in a given area, the more pigeons will be attracted there. Once there are too many pigeons at a given location so that they create an unacceptable nuisance, the question arises how can one get rid of them? Various proposals are discussed by Mr Goodwin. One is to kill or cull the pigeons. This is not thought to be effective. Leaving aside public objections to such a course, it does not work, because as long as there is food the population will soon be replenished by other birds. Another method is to make the particular location pigeon proof. There is no dispute that this option is viable at Balham High Road Bridge. Indeed, as will appear, for several years in the 1990s that method was successfully adopted. The welcoming roosting places beneath the bridge can effectively be sealed off by fixing permanent netting or mesh across them. The consequence of that is that the pigeons will move on somewhere else, but, according to Mr Goodwin, they will not go far as long as the food source remains which attracted them there in the first place. They will find the nearest and/or the next best location, and make their home there. What is more, they are sociable birds who like to congregate in big flocks. They will stay together if they can, and once in a flock will not disperse unless they have to. Thus, if moved on, the pigeons from Balham High Road would find roofs or perches somewhere else, but not far away and if possible as a flock together. If a long term solution exists to the excessive numbers of pigeons in an area, it lies in eliminating or substantially reducing the food sources which attracted the pigeons to the area in the first place.

The effects of the pigeons at Balham

What are the precise effects of the pigeons perching under the bridge? Some are almost too obvious to mention. The droppings fall onto people's heads, bodies and clothing, they splash onto the pavement, fouling it and also tending to make it slippery as well as generally messy. A less obvious potential effect of the droppings is the risk of disease; there are various diseases mentioned by Mr Goodwin, at paragraph 5.4.1 of his report, which carry some theoretical risk to humans. But of these the Claimants point to just one which could be relevant to a claim for nuisance and negligence. That is a disease known as Chlamydia psittici or psitticosis. It is a bacterial infection which can be transmitted from birds to humans, but not as between humans. Its symptoms can effect the human respiratory system, the central nervous system and the liver. Dr Wreghitt is an expert on the topic. He was a witness for the Claimants. He is a Deputy Director of the Clinical Microbiology and Public Health Laboratory at Addenbrookes Hospital in Cambridge. He has made special studies of the disease. Once diagnosed it can be successfully treated. Public awareness of the disease is however still low. Many general practitioners do not know about it. Therefore it is Dr Wreghitt's view that the disease is underreported and therefore frequently undiagnosed. Fortunately most people who contract the disease will recover even without treatment. A few however will develop complications, which in very rare cases may be fatal.

For patients who do not develop complications the illness, whilst unpleasant, and likely to affect the respiratory tract, does not represent a serious threat to their health. The disease is most often caught by those who keep birds, but one of the ways in which the infection may be contracted is contact with the faeces of wild birds including wild pigeons.

Dr Wreghitt's evidence on these matters was carefully explored and tested, including the statistics which he gave on the incidence of the disease in the population. The net effect of his evidence was such that Mr Porten for the Claimants conceded that the risk of injury to health represented by the Balham pigeons was in itself insufficient to constitute an actionable nuisance. Thus whilst the evidence on the topic was interesting, I need not analyse it further.

4. History of pigeon infestation around the bridge

I move now to the particular factual history of the pigeons around Balham High Road Bridge and surrounding area. During the 1980s concern about the pigeon problems at the bridge began to be expressed. In 1986 the Chartered Institute of Building Service Engineers complained about the birds. Their head office was near the bridge. Because of that and no doubt other general concerns, the Claimants in 1989 approached British Rail the Defendants' predecessors with a view to fixing netting beneath the bridge. After some discussions about the precise means of proofing the underside of the bridge against pigeons, netting was installed with the permission of British Rail but at the Claimants' expense in April 1990. In addition to netting some galvanised meshed panels were fixed to prevent pigeons from getting into the structures from above. Broadly speaking the measures then adopted succeeded in their aim of preventing pigeons from roosting. However, they were not foolproof, so a few pigeons got into the netting from time to time, were unable to escape and died. This in itself caused problems, both from the presence of dead pigeons, and from public complaints. After a series of incidents early in 1995 involving dead pigeons being caught in the netting, the netting was removed in March 1995. The Defendants were not notified of this. It was not long before complaints about pigeon fouling...