Gillings v Kirklees Metropolitan Council [1998] EWCA Civ 2 (10 January 1998)

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR LEAVE TO APPEAL

Royal Courts of Justice The Strand
London WC2
10th January 1998

B e f o r e :

LORD JUSTICE PETER GIBSON
MR JUSTICE BENNETT

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FREDA GILLINGS
Respondent

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KIRKLEES METROPOLITAN COUNCIL
Applicant

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____________________MISS K ASTANIOTIS (Instructed by Solicitors to the Council, West Yorkshire, HD1 2TG) appeared on behalf of the Applicant
THE RESPONDENT DID NOT ATTEND AND WAS NOT REPRESENTED

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LORD JUSTICE PETER GIBSON:

    1. This is an application by the defendant, Kirklees Metropolitan Borough Council (“the council”) for leave to appeal out of time from the order of His Honour Judge Harry Walker in the Dewsbury County Court on 21st July 1997. The judge dismissed an appeal by the council from the order of the district judge who, on 31st January of last year, had given judgment for the plaintiff, Mrs Freda Gillings, and awarded £1,000 damages for the nuisance caused to her as a result of the noise made by a bleeper device attached to a pelican crossing immediately outside her property.
    2. The council had four weeks in which to appeal from the judge’s order. It did not seek leave when the judgment was delivered, why, it is not explained. There was an unexplained delay until 4th August, when the council wrote asking for leave to appeal from the judge. The judge, regrettably, appears to have been slow to deal with that application but the council, which should have been conscious of the four-week period in which to appeal, did not seek to find out what was happening until well after the expiry of the four-week period. On 7th October, because of another event, it made an inquiry of the judge’s clerk. The next day a phone message was received by the council that the application for leave had been refused. Again the council did nothing for over a month. Again there is no explanation, though it would appear that it may have been that the council wanted confirmation in writing. It did not, however, complain about the absence of any order in writing, only on 12th November did it ask for such an order. That was then faxed to the council. Still nothing was done before a written copy of the order was received on 26th November.
    3. Exactly when the application to this court was made does not appear from the papers. There is an affidavit from the council’s solicitor explaining the delay. That is dated 1st December, so that it was on that day or some time thereafter that the application which is now before us was made. I do not regard the council’s explanation for the delay as satisfactory. The council is no doubt an experienced litigant. It should have been conscious at all times of the time limit. When faced with delay from the judge in dealing with the application for leave to appeal, it should have sought an answer more quickly than it did, and certainly when it knew that the application had been refused no time should have been lost before the application was made.
    4. However, an application for leave to appeal out of time is usually determined primarily on whether the Court is satisfied that the applicant would have a reasonable prospect of success on an appeal. The facts of this case are that the council installed the pelican crossing in 1991. It operated with a bleeper all day and night. There were complaints by the plaintiff to the council and in April 1993 the bleeper was switched off between 7.30 pm and 6.30 am. On 14th July 1993 two of the four audible signal devices were removed and were replaced by tactile knurled knobs to allow pedestrians with a sight disability to be able to use the crossing adequately and safely at all times of the day or night. That is the evidence of the group traffic engineer of the council.
    5. Proceedings were commenced in April 1995, Mrs Gillings suing in nuisance. The district judge who heard the case did not find that the siting of the pelican crossing or its daytime operation were matters about which Mrs Gillings could complain. The district judge guided himself by the authorities on nuisance, in particular Allen v Gulf Oil Refining Ltd [1981] AC 1,001 and the Tate & Lyle v The Greater London Council [1983] 2 AC 509, a subsequent decision of the House of Lords. The district judge was aware that if the claim in nuisance was to be sustained, he would have to find that there was negligence (in the special sense explained in the authorities) on the part of the council. The district judge, however, did find there was such negligence, certainly in the period while the bleeper was in operation both day and night. He also thought that 6.30 am was too early for the beeper to start operating and that 7.00 or 7.30 am was the appropriate time at which the bleeper should come into operation.
    6. Miss Astaniotis for the council submits that a local authority cannot be liable in damages for doing what Parliament has authorised. If a decision complained of falls within the ambit of a statutory discretion, the council, she says, cannot be made liable at Common Law. She relied in particular on what was said in the House of Lords in a case where negligence and breach of statutory duty were alleged, X (Minors) v Bedfordshire County Council [1995] 2 AC 633.
    7. For my part I do not see that that case affected the earlier decisions in Allen and Tate & Lyle. Indeed, Lord Wilberforce’s comments in the Allen case at page 1,011 are expressly quoted by Lord Browne-Wilkinson in X (minors). Those authorities establish that where Parliament has directly authorised the construction and use of an undertaking or works, that carries with it an authority to do with what is authorised with immunity from any action based on nuisance, provided that the statutory power is exercised without negligence. Lord Wilberforce explained that negligence, in the special sense, requires the undertaker as a condition of obtaining immunity from action to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons.
    8. In another nuisance case Wheeler v JJ Saunders Ltd [1996] Ch 19, I said this, at page 35:

“The Court should be slow to acquiesce in the extinction of private rights without compensation as a result of administrative decisions which cannot be appealed and are difficult to challenge.”

I do not accept that the plaintiff’s common law right to complain of nuisance was taken away by the mere fact that the council was acting under statutory authority. The district judge quite rightly considered whether there had been negligence in that special sense and in considering that question it properly considered how the interests of those living round about were affected by the noise of the bleeper attached to the pelican crossing. It was obvious that the noise was likely to affect any residential house immediately adjacent to the pelican crossing.

    1. Miss Astaniotis submitted that the council had to take particular account of the fact that a blind man was living close by and, indeed, there was evidence from Mrs Gillings herself that that disabled person was a user of the pelican crossing at 6.30 in the morning. However, the passage in the statement of the group traffic engineer, which I have cited, to the effect that those with sight disability can use the tactile knurled knobs, so as to take advantage of the crossing adequately and safely, shows that that was a consideration that could, on the face of it, be dealt with perfectly adequately by the replacement, which occurred in July 1993, of two of the audible signal devices with those knobs. Miss Astaniotis has said that there is no evidence that the blind man would be content with that; he had complained when the bleeper’s audible signal had been reduced because, he said, it had been reduced too much. But there is simply no evidence to counter the evidence of the group traffic engineer.
    2. For my part it seems to me plain that the council, if it did not take account of the possibility of relying on the tactile knobs to meet the objection of the blind man, overlooked the proper interests of people like Mrs Gillings who would be affected by the noise. It seems to me that in the circumstances the district judge did reach an unassailable conclusion. It was however, as Simon Brown LJ in refusing leave to appeal said, a narrow decision on the facts.
    3. For my part I do not think that an appeal would have any reasonable prospect of success. Accordingly, despite the well-presented argument of Miss Astaniotis, I would refuse this application.
    4. MR JUSTICE BENNETT: I agree.

ORDER: Application dismissed. 

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