Piper & Anor v Clifford Kent Ltd.

J U D G M E N T

Wednesday, 12th November 2003

1. LORD JUSTICE JACOB: This is an appeal from a decision of Mr Recorder Derbyshire sitting in the County Court at Truro.

2. The claimants, Mr and Mrs Piper, live in a bungalow with a garden adjacent to what is now a very large egg producing farm. It now has nearly half a million birds, having risen from about a quarter of a million in 1990. We have been provided with plans and an aerial photograph of the site. The Pipers live very close to the very, very large farm.

3. In the original action they complained of common law nuisance which commenced, they said, in about 1993. They alleged nuisance by fly infestation, by smell, by noise, by smoke and by dust and feathers.

4. The judge held that there was no continuing nuisance of any kind, the smell nuisance having stopped in the year 2000. He awarded £10,000 damages for past nuisance, some for flies, some for the smell and so on, but £10,000 in all.

5. The appellants do not challenge his findings that there were no continuing fly nuisance, noise nuisance, smoke, dust or feather nuisance. What they challenge is his finding that the actionable smell nuisance stopped in the year 2000.

6. On the defendant's side there is no cross-appeal against the finding that there was a smell nuisance from 1995 to the year 2000.

7. So the first question is: was the judge right to conclude that the smell nuisance stopped in the year 2000?

8. The claimants say the judge accepted their evidence of nuisance up to the year 2000. The witnesses consisted of Mr and Mrs Piper and a number of neighbours who came and gave evidence of that nuisance, and the judge accepted it. The Pipers say those witnesses also said the smell nuisance was continuing. The judge, they say, treated these witnesses as witnesses of truth. Thus in relation to the evidence in the case of flies, the judge said at paragraph 41:

"I found the claimants' witnesses to be honest and straightforward. All were thoughtful, and with the possible exception of Mr Price-Jones who was against battery hens on principle, they were not so bound up with the problems that they gave untruthful or exaggerated evidence."

9. The judge, in his careful judgment, considered each of the kinds of nuisance separately and came to the smell nuisance at paragraph 45 of his judgment:

"45. I now pass to smell. The defendants say that in view of the opinion expressed by Mr Danks in paragraph 56 of his report, there is no evidence to support a claim for nuisance based on smell, but that ignores the battery of witnesses who gave evidence for the claimants, all of whom complain bitterly and in graphic detail about the smells that were coming from the defendants' premises. Mrs Piper said that the smell problem started in about 1993. She has described it as a strong chicken manure smell. She said it was nauseous, and although it depended on the wind direction, it could last sometimes for days. She said it was too unpleasant to go out in the garden sometimes, and it would get onto the washing.

46. When the defendants started to use the area known as Pets Hotel for the disposal of carcasses in pits, the stench of decomposing flesh came onto the claimants' land. Her diary shows smell being recorded as a problem from late 1995 into 1996. Throughout 1996 into 1997, particularly bad in the summer months. 1998 is the same, with particular emphasis on the summer months. In 1999, again September was a very difficult month, as was also December, and the year 2000, with emphasis on May, July and September. Rotting carcasses from the pits on several occasions in the latter period are said to have triggered the complaints. Since then she says matters have got somewhat better, but still, when the manure lorries go out unsheeted, they are affected by the smell.

47. Mr Piper agrees with his wife. He says it is really no different now to what it was in the past. It depends on the direction of the wind. He says the smell is a mixture of corn, manure and air from the poultry houses. He says it is very unpleasant. You cannot enjoy the property in a proper manner, and it is necessary to close windows and you can only spend sometimes an hour at most outside.

48. Mr Clark, he too made complaints about smells since 1995, particularly bad, he says, in August 1999. He said when it sticks it is necessary to close all the windows, otherwise it invades the house. He described the smell as one of decay mixed with the smell of chicken feed. He said it is now pretty much as it was before, and in addition to the smells which are taken on the wind to his house, he was able to tell me about the really nasty smell which he said came from the Pets Hotel site. He said that when he travelled past in the car he had to hold his breath, and even there he was candid enough to say that he had not smelt that for the last month or so.

49. Mr Shrubshall said that when the wind is from the southwest, it carries the smells from the defendants' site to his house. He described them as, 'Very unpleasant. We have to keep the windows and doors shut to keep it out.' He says he has been complaining since 1995, and he says it has been the same really over the last two years, with the smell nuisance occurring three or four times a week.

50. Mr Lawrence was a naval officer who moved to Clouds Hill, just north of the defendants' site in 1997. He says that the smell is a persistent problem, although it varies in intensity, with the wind and cloud cover. He described it as a mixture of chicken feed, bran and manure. Also on occasions, he said, you could smell rotting carcasses. He also said it is much the same now as when he made his statement last year.

51. Mr Price-Jones told me of the smell of rotting material, especially in the summer months. He said it was intense and overpowering; it catches you in the back of the throat. He said you cannot sit outside in the garden in the summer. He accepted that his own stock would generate some smell, but he was quite sure that the smell from the defendants' site was so distinct that there was no confusing the two."

10. We were shown various portions of the transcript of the witnesses referred to by the judge. The clear overall effect of those witnesses is that there had not been a significant change in the position over the years. The problem of smell was, said the witnesses, still a major problem, albeit intermittent - much depends on the wind direction, its speed and what is being done at the time on the farm.

11. Given that the judge accepted the evidence of these witnesses who live close to the scene, why did he conclude that the nuisance stopped in the year 2000?

12. It was not because there was any evidence of changes in practice or machinery or equipment at the farm in the year 2000. It was never the defendant's case that they had made a significant change in the year 2000, although it is fair to say that they did say that they were always trying to improve things. Mr Lord, on behalf of the defendants, showed us evidence of some changes down the years, but was unable to pin anything to the year 2000. The change that was most likely to affect the smell, a belt for the manure system, was apparently put it in in the year 1997, and evidently was not enough to prevent the nuisance running for another three years on the judge's findings.

13. The judge's reason is essentially based on two matters only. Firstly, the evidence of the single joint expert who gave evidence in the case, a Mr Danks. He made two visits to the site in the year 2001 amounting to four days in all, two in February and two in September. He did not find the smell overpowering or too obnoxious and thought it was no problem on the occasions of his visits. He appears at this stage not really to be giving expert evidence, but simply the evidence of a visitor. The wind directional speed on his visits was not recorded and the judge appears to have overlooked that fact. From such a visit it would be difficult to draw any inference that the nuisance had ceased, even accepting everything that Mr Danks said.

14. The only other matter the judge relied upon was his own visit to the site at the start of the trial. He was invited by the claimants to visit the site. The defendants had no opportunity to prepare for any such visit. So Mr Lord rightly pointed out, they could not have done anything special by way of a clean-up or ceasing operations to prepare. When the judge visited the site he did not think that the smell was too bad, putting it bluntly.

15. Were these two matters enough to displace the evidence of all the neighbours? In my judgment, they were not. The judge overlooked the fact that this nuisance was never said to be a continuous nuisance but was of an intermittent character; proving that the smell does not exist on one day does not prove that it does not exist on others. The judge, I think, overlooked the fact that the evidence of the Pipers and the neighbours was of continued repetitions of the smell, and overlooked the fact that he had no evidence to suggest that there had been any significant change in the year 2000 to reduce the smell from that which was unacceptable to something that was acceptable.

16. I bear in mind that this site has planning permission for a battery farm. That fact is a relevant consideration in considering what amount of smell is tolerable before it turns into an actionable nuisance, but given the fact that the judge had found that the line had been overstepped for six years, more was needed to show that the line had been re-crossed back to the side of acceptable.

17. Accordingly, I would hold that there is a continuing nuisance caused by smell.

18. Mr Blohm had an alternative argument on the basis that an injunction should be granted even though the smell had ceased in the year 2000. I do not propose to go into that argument, save to say that it did not impress me. If the nuisance had been stopped for two years there would be no real risk of it restarting and no need for an injunction.

19. That leaves the question of what to do. Mr Lord put the problem very clearly. He put it this way: given that some smell is allowable, because planning permission has been given and inevitably battery farms have some smell, how do you gauge when there is too much? That is a real problem and is a problem with any kind of nuisance. It can be said, in a sort of old-fashioned way, that it is no function of the court to tell the defendant how close to the wind he can steer, but these days courts are more alive than perhaps they were once to the kind of problems which occur with this type of injunction, one which inherently and necessarily has imprecise limits. chk word

20. In this case there may even be a case for refusing an injunction altogether and using the court's power to award damages in lieu of an injunction, the power which now is contained in section 50 of the Supreme Court Act 1981. Such a power has to be exercised with considerable care because it can amount to something like compulsory purchase. A lot depends on a delicate and careful investigation of the facts applicable to the case under consideration.

21. In this case there is some evidence that Mr and Mrs Piper would like to sell and move. I do not know what the current position is, but it seems to me that the appropriate thing here is not for this court to decide that an injunction should be granted or should be refused, or that damages should be awarded in lieu of an injunction or not, but that there should be a further investigation before, if possible, the trial judge as to the position before the appropriate remedy is decided upon. For my part, I would therefore allow the appeal and remit the matter to the county court for consideration of the appropriate remedy.

22. LORD JUSTICE CLARKE: I agree.

23. LORD JUSTICE AULD: I also agree that the appeal should be allowed to the extent and for the reasons given by my Lord, Jacob LJ.

24. We therefore quash the finding of the judge that there was no continuing nuisance as to smell.

25. This court, as my Lord has indicated, cannot deal with the consequence of that decision, given the limit of the evidence before the judge as to the appropriate remedy; that is whether, if injunctive, in a general, negative or a particularised, mandatory form, or if not injunctive, as to the appropriateness of damages in lieu, and if so as to the measure of such damages.

26. Accordingly, we remit the matter of remedy to the county court for its determination in the light of any further evidence and representations that the parties may wish to put before it.

27. For that purpose, and to prompt an early conclusion of this unhappy dispute, we direct that the respondent should serve and file any evidence upon which it may wish to rely as to remedy within 28 days of today, and that the appellants serve and file any evidence upon which they may wish to rely by way of reply within two weeks thereafter. In the meantime, we take the liberty of expressing the hope that this matter might be settled without recourse to further expensive and time-consuming litigation. We earnestly recommend both parties to consider as one possible solution early recourse to mediation.

28. My Lord, Clarke LJ, mentions as a possible course for the parties that, at the same time as filing any evidence that they may wish to file and serve as to remedy, they could serve with it a short statement of their respective cases in reliance on that evidence. That may be too burdensome in the time. If it is then a short statement shortly thereafter might be a good idea - if it reaches that stage.

Order: Appeal allowed with costs. The matter to be remitted to the county court for determination of remedy. Costs before the judge below to be remitted to the county court for resolution in the final determination of the matter. The respondent to serve and file any evidence upon which it may wish to rely as to remedy and a statement of case within 28 days of today. The appellants to serve and file any evidence upon which they may wish to rely by way of reply and a statement of case within two weeks thereafter.

(Order does not form part of approved judgment)