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(12) In all these circumstances it would appear that the local Authority have no legal powers
to deal with this complaint of noise.
(13) As to dust. The only section of the Public Health Act that appears to me possibly to give
the Council power to deal with this nuisance is Section 91 (6) of the Public Health Act, 1875, which
states as follows : " Any factory, workshop or workplace not kept in a cleanly state, or not ventilated
in such a manner as to render harmless as far as practicable any gases, vapours, dust or other impurities
generated in the course of work carried on therein that are a nuisance or injurious to health ....
shall be deemed to be a nuisance."
(14) If this section is applicable and if the complainants' statements as to dust are upheld the
Council would be able to deal with this matter of dust in the same way as they can deal with other
nuisances, namely, by serving a Statutory Notice to abate the nuisance and stating the remedy and
in the event of non-compliance by making complaint to the magistrates.
(15) Having regard, however, to the somewhat doubtful and in any case limited powers possessed
by the Council it might appear preferable to endeavour to get the L.M.S. Railway to effect
improvement. For that purpose it might be suggested to them :
(a) That the apparatus be used only between the hours of 7 a.m. and 7 p.m.
(b) That only such coal be used as is least likely to give rise to dust, and that coal known
to give rise to much dust be excluded from use by this apparatus.
(c) That the spraying of the coal in the waggon be increased so that all the coal is
wetted. At the present time there is only one spray placed lengthwise over the waggon.
(id) That the coal when it is being tipped into the hopper be effectively sprayed at this
point also.
(e) That steps be taken to enclose completely the apparatus while coal is being tipped
into the hopper so as to reduce noise and prevent the escape of dust.
GEORGE F. BUCHAN.
NOTE BY CLERK AND SOLICITOR TO THE COUNCIL.
I have read the foregoing memorandum of the Medical Officer of Health and so far as it goes,
generally speaking, I agree with his statement of the Council's powers with regard to the particular
nuisance. It must, however, be borne in mind that the Public Health Acts do not create fresh
nuisances, but only provide a procedure for dealing with certain nuisances in a summary manner.
One has, therefore, to look to the Common Law, and in the case of Statutory Undertakings
such as Railway Companies, to the construction which the Courts have placed on the various
statutes authorising such undertakings. It will be appreciated that Railway Companies are
under a statutory obligation to run their trains and to do such acts as may be necessary for carrying
out that duty, and a Railway Company which is given power by Statute to do an act which
would otherwise amount to an interference with the rights of the public, e.g., an actionable common
law nuisance, are not liable to proceedings for a public nuisance nor does an action lie against a Railway
Company for doing an act which is authorised by statute but which would be a nuisance if not so
authorised. Further, where the Company is under a statutory duty it is only bound to exercise its
powers in the performance of such duty with moderation and discretion in a proper manner and
without negligence.
The case of Truman v. The London Brighton and South Coast Railway appears to me to be
directly in point, and the foregoing observations are based upon the judgments delivered in the House
of Lords in that case. I therefore reach the conclusion that unless it can be proved that the Company
are using the apparatus referred to in a negligent manner (and at present I see no evidence of that) no
action will lie against them.
I cannot, of course, express any opinion upon the suggestions following paragraph 15, but
experience shows that Railway Companies are always willing to consider practical suggestions which
would tend to ameliorate any inconvenience caused to occupiers of adjoining property consistent with
the due performance of their statutory duty.
E. A. PRATT.