Liability in public nuisance

A case note.
Public nuisance in relation to rights of way has acquired a sharper focus after the Court of Appeal's decision in Wandsworth London Borough Council v. Railtrack plc., upholding Gibbs J.'s decision at first instance. Feral pigeons roosting on the underside of the Balham High Road railway bridge have for some years fouled the highway beneath it, in particular the footway. Although Railtrack plc. repudiate responsibility, it was found on the facts that they could clearly have tackled the problem but failed to do so. Wandsworth Council have the power to do so, but at the public cost; this would be unjust if, as the Court of Appeal held, Railtrack plc. are in any case liable as owners of the bridge. The scale of the problem is not `de minimis', therefore it amounts to a nuisance. It is a public nuisance because it affects the public right of way and countless members of the public suffer. Railtrack plc. has had not merely ample warning of the nuisance (even though not the originator of it) but in addition ample time to take curative action. An injunction, or in this case a declaration, affords an appropriate remedy in public law to the Council which, as owners of the highway, may also claim damages in private law

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