Every so often the problem of contaminated land becomes a public issue, rather than the quiet domain of professionals. Frances McChlery looks at the implications of the Corby case.
Between 1983 and 1989, Corby Borough Council acquired 275ha of contaminated land allegedly full of toxic substances from steel industry use from the British Steel Corporation, in order to regenerate it.
The council constructed a tip to receive the contaminated soils and moved hundreds of lorry loads of soil by road between three contaminated sites and the tip.
It is now alleged that these activities led to the dispersal of toxic dust, volatile and toxic fluids and vapours, and toxic sludge along the public roads between the sites.
The Corby Litigation Group consists of 18 people born between 1986 and 1999, all with deformities of the upper limbs. Their mothers all lived close to these sites or works during their pregnancies.
The group is suing Corby Borough Council for damages for personal injury allegedly caused by the council's actions with the toxic substances.
The case is still a long way from proof and is set to be heard in February 2009. As most of the people affected will be young, and normal time limits will not greatly affect the position, the case could drag on for quite some time.
However in the interim, with the damages action having commenced, the council sought to have the claims struck out on the basis that the claimants were trying to make out a case for damages based on public nuisance, arguing that the law in England does not allow such a claim.
The law of public nuisance due to the use of land is slightly different between the various UK jurisdictions, but this is one example where one can comment, on the basis that the law in all the different jurisdictions tends to converge.
The council's arguments against the Corby Litigation Group claim were considered by the Court of Appeal in May 2008 and rejected.
There has been controversy between legal scholars since the war about whether nuisance (in England) gives rise to a private right for damages.
Various restrictions have been argued, such as the suggestion that it is a special property remedy for private interest and was never intended to found a rule which extended to the wider public, or to damages for personal injury, as opposed to injury to property interests.
However, in the Corby Litigation Group action, the Court of Appeal was not convinced by argument that public nuisance gave no private right to sue for damages. They found the law on the point was certainly not clear, but there was at least a reasonable prospect that the claimants could make a case.
There is a distinction, slightly clearer in England than in Scotland, between private nuisance, which is basically the right of a complainer to enjoy his land without unlawful disturbance from another's use of his land, and public nuisance, sometimes known as "common nuisance", which might affect and therefore give a right of action to any members of the public.
The concept of common nuisance now in all jurisdictions developed into modern environmental protection and nuisance law, and the Crown, through local authorities and environment agencies, has acquired the right to take action on behalf of the community.
The right to take action is not exclusive to the authorities, however, and in all jurisdictions a private individual can also raise an action to prevent or stop problematic behaviour under the public law of nuisance.
The Corby Litigation Group case has confirmed that, as the law currently stands, the public right may well give anyone who can prove that they have been harmed, at least through negligent action, a right to be compensated.
It can be said that the case could also be considered under the basic law of tort or delict. The claimants would have to focus on establishing negligence, causation, and reasonable foreseability.
Using nuisance is probably intended to lead the court to support the underlying principle of nuisance that, if you carry out a dangerous and noxious act on land belonging to you, then that may breach others' rights, possibly without the need to get into negligence issues.
Corby Borough Council may well be wondering why it bothered to regenerate the sites.
Today authorities responsible for the initiation of contaminated land remediation works, and their contractors, will wish to be sure that they can establish that all industry standards on hazardous substances, health and safety were met in all works done and that their insurance cover is adequate for such claims.
Frances McChlery is a consultant at Simpson & Marwick solicitors
The Corby case at a glance
When? Between 1983 and 1999
Where? Corby, Northamptonshire
Who? A group of 18 people born between 1983 and 1999 in Corby, all with physical deformities
What? The group claim that their physical deformities were due to their pregnant mothers' exposure to toxic substances from a former British Steel site that Corby Borough Council had acquired and were remediating. They are trying to sue the council for personal injury damages.
What now? The case will be heard in court in February 2009
Corby Group Litigation -v- Corby Borough Council [2008] EWCA CIV 463:
