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Railtrack's feathers ruffled after paying pigeon-proofing costs

legal matters

Railtrack has been beleaguered of late with many weighty matters. In addition to its wellpublicized problems, it also has to consider the implications of a judgment last year that found it was responsible for a public nuisance caused by pigeons residing under a railway bridge it owns that crosses Balham High Street, south London.

The nature of the nuisance can easily be imagined. As well as heralding safer passage for all of us beneath railway bridges, the judgment has implications for building owners who may be housing similar colonies of wildlife.

Anyone with a particular interest in pigeon facts will find much of interest in Mr Justice Gibbs judgment. It reviews expert evidence ranging from 14th century pigeon deterrent measures that resulted in broken windows at St Paul's Cathedral to the symptoms of chlamydia psittici, a bacterial infection carried by the birds. It seems the Balham High Street bridge is a pigeon paradise, there being numerous ledges beneath it providing perches, nearby railway and underground stations and 89 food outlets within 500m.

Wandsworth, the local authority, had been carrying out daily cleaning beneath the bridge. It pressed Railtrack to install pigeon proofing. In response Railtrack offered Wandsworth access to pigeon-proof the bridge, at Wandsworth's expense, with Railtrack conceding no liability for the problem.Wandsworth declined, carried on cleaning - and issued proceedings.

Wandsworth succeeded on the basis of public nuisance. 'Nuisance', like negligence, is a tort, but a tort that focuses on interference with the use of land.Private nuisance is the usual legal vehicle for claims relating to, for example, tree roots, where damage has been caused to the occupier's property. Public nuisance is different. Those affected by it do not need to have a legal interest in the affected property, but there does need to be a sufficiently large group that suffers discomfort and inconvenience. Wandsworth, being responsible for public health and for the highway beneath the bridge, brought proceedings to try to stop the alleged public nuisance.

Having listened to the facts, the judge found the inconvenience to pedestrians to be so extensive as to be a public nuisance. He emphasized that in any particular situation it would be a matter of fact and degree whether such a problem amounted to public nuisance. Having found there was a nuisance, it is well established in law that even where a nuisance is not caused by any action or inaction by a defendant, the defendant is responsible provided it knew about the nuisance and had the ability to abate it. In this case, Railtrack knew, and could have done something.

But the judge had to deal with two further questions. First, Railtrack disputed liability because the nuisance was caused by wildlife which it had neither domesticated nor attracted to its land. Second, the defendant's standard of care depends upon what it is reasonable to expect of it in its circumstances, which can include cost considerations.

The judge rejected the wildlife point, deciding there was no basis for a legal distinction between a duty arising from the presence of pigeons in Balham and a duty found in an 1869 case to abate a nuisance caused by seaweed brought in by the tide at Margate.

So what was reasonable to expect Railtrack to do?

While Railtrack did not say that it lacked money, it asked the court to take into account the financial burdens of running a rail network. However, the judge was not deterred from requiring Railtrack to pigeon-proof the Balham bridge. While Railtrack owns some 20,000 bridges, it had not been shown that there might be an actionable nuisance at an extensive number of them, and the cost of pigeon-proofing a single bridge was such that it was not unreasonable to impose a duty on Railtrack to pay for it.

Doubtless the judgment was welcomed in Balham. But the pigeons will simply move on to the next suitable venue. Now that the scope of nuisance includes unwelcome wildlife activity, owners of nearby buildings might be placing an increased emphasis on designing out pigeons, rather than being dropped in the same mess.

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