Dobson & Ors v Thames Water Utilities Ltd and Anor. Country/Territory United Kingdom Type of court National - higher court Date Jan 29, 2009 Source UNEP, InforMEA Court name Court of Appeal Seat of court London Judge WallerRichardsHugues. Reference number [2009] EWCA Civ 28 Language English Subject Water, Land & soil Keyword Land-use planning Water rights Effluent waste water/discharge Abstract This is an appeal from the High Court to the Court of Appeal regarding certain decisions of the Technology and Construction Court (TCC). That trial was of 14 preliminary issues in claims by owner-occupiers and simple occupiers of properties near Mogden Sewage Treatment Works arising out of odours and mosquito infestations in negligence and private nuisance and seeking also damages under human rights legislation, Thames Water having accepted that it was a public authority for the purposes of the Human Rights Act 1998. The claims raised novel issues concerning the relationship between the statutory public law system of control under the Water Industry Act 1991 and private common law claims. High Court held that the statutory system of control of sewerage undertakers denied a remedy to anyone (owner or occupier) in the absence of negligence. He also held that damages for transitory nuisance were to be assessed on the basis of diminution of the amenity value of the land and that such an award would usually amount to ‘just satisfaction of the claims of other occupiers for the purposes of section 8 of the Human Rights Act 1998. There was an appeal on three issues: (1)where damages in nuisance are awarded to a property owner, is it necessary, in order to afford ‘just satisfaction to a non-property-owning member of the same household (such as a child of the owners), to award damages under section 8 of the Human Rights Act 1998 for breach of Article 8 European Convention on Human Rights; (2)were alternative remedies in public nuisance and/or through Ofwat relevant to the first issue?; (3)if common law damages for nuisance are lower than those obtainable under the Human Rights Act 1998, can they be ‘topped up? The claimants principal argument that an award of damages in nuisance to the owners was completely irrelevant to a section 8 the Human Rights Act 1998 claim for breach of Article 8 (which was wholly distinct in character and related to the effect upon an individual) was rejected. The Court of Appeal held that damages under section 8 of were ‘not an automatic entitlement but ... a remedy of last resort. The case of a child whose parents had recovered damages in nuisance as owner-occupiers required findings of fact before a conclusion could be reached on whether an award to the child under section 8 was (as it must be) ‘necessary; if the award to the parents had taken into account the effect upon their child of the loss of amenity, that was certainly relevant and a ‘highly significant consideration in relation to the childs section claim; a declaration might well suffice. The court further held that the proper award to an owner under section 8 is ‘most unlikely to exceed the common law award; a ‘top up award is ‘highly improbable, if not inconceivable. On issue (2), given all of the above, the existence of alternative domestic remedies would only fall to be considered as a factor in the case of a claimant who had both shown that a section 8 award was otherwise necessary and had proved negligence, so it was ‘very doubtful that the existence of those remedies would militate against such an award in those circumstances. Full text COU-156627.pdf