Mid Suffolk District Council v Clarke

On 19^th April 1999 Mr John Clarke, the defendant, gave an undertaking not to cause or permit public nuisance at the premises known as Rookery Farm, Woolpit Road, Drinkstone, Suffolk after 31^st May 2000. He undertook not to do so “whether by himself, his servants or agents or otherwise howsoever”. This undertaking was given in an order made by consent at the trial of an action brought by the Claimant, Mid Suffolk District Council, to restrain Mr Clarke from causing a public nuisance by smell. In bringing the claim the Council was acting under section 222 of the Local Government Act 1972 in order to enforce what would otherwise have been rights enforceable by inhabitants of the neighbourhood. The deferral of the effect of the undertaking was intended to allow time for works to be carried out under plans which were to be submitted to the Council for approval by 1^st June 1999, with interim protection provided by an agreed emergency plan.

The nuisance by smell arose from the Defendant’s use of the land at Rookery Farm for fattening pigs, in particular from the process of boiling animal and vegetable waste in a cooking plant on the premises to make a swill which was then fed to the pigs. There was a very long history of complaints from residents of local villages, Woolpit above all but also Drinkstone and Tostock. The Council took a number of steps in an endeavour to prevent or limit the nuisance by smell from 1976 onwards. The action in which the undertaking was given was commenced in 1993. Although it only came to trial in March 1999, in the intervening period there were other attempts to secure a solution by statutory means and by discussions between the parties.

The trial lasted five days. The defendant represented himself. At the end of the five days he gave an undertaking on 5^th March as a condition of an adjournment to formulate plans for works of improvement. On 19^th April the matter came back to court, Mr Clarke having retained Counsel at that stage to argue the question of costs but otherwise representing himself. The undertaking was given as part of an order made by consent as regards steps for the future.

In February 1999 the Council had granted planning permission to Mr Clarke for a replacement cooking plant which, it was hoped, would allow him to continue his cooking activity without causing a nuisance by smell. Despite this the undertaking given in April 1999 was not honoured when it came into effect in June 2000. In part this may have been because it took until December 2000 for the new plant to be installed. In August 2000 the Council applied to commit Mr Clarke for contempt for breach of the undertaking, alleging breaches committed between June and the beginning of August. On 11^th December 2000 Mr Clarke admitted three breaches. The judge, His Honour Judge Mellor who had also heard the trial in March 1999, adjourned the application and ordered the defendant to pay indemnity costs but imposed no other sanction. He warned Mr Clarke that if the undertaking was not honoured in the future more drastic sanctions would be likely to be imposed. He did so knowing that the plant had belatedly been installed and in the hope that it would make a difference.

In 2001 the position was affected to a substantial extent by the consequences of the outbreak of foot and mouth disease in the country. In particular that led to a ban on feeding this sort of swill to pigs in any event. That meant that Mr Clarke could no longer use his new cooking plant for purposes ancillary to the rearing of pigs. Accordingly in 2001 he applied for planning permission to change the use of the new cooking plant so that it would no longer be limited to use ancillary to his agricultural business but would be an independent industrial use. The Council refused planning permission. The defendant appealed but that appeal failed after a public inquiry. By the time of the public inquiry Mr Clarke had started industrial use notwithstanding the absence of planning permission. Mr Clarke applied to quash the inspector’s decision on the appeal to the High Court. He withdrew that application but he did not discontinue the industrial use. In July 2004 the Council started separate proceedings to restrain the breach of planning control. A preliminary issue in those proceedings as to the effect of the planning permission granted in February 1999 was decided in favour of the Council by Newman J in April 2005: [2005] EWHC 3099 QB. Permission to appeal was refused by the judge and by the Court of Appeal: [2005] EWCA Civ 904.

Those proceedings were again before Newman J on 16^th January 2006 on an application by the Council for a permanent injunction and a cross application by Mr Clarke for permission to amend his defence. He sought to raise a new point, namely that his use of the cooking plant before 1999 had always been a mixed agricultural and industrial use so that he had, he contended, an established lawful use for industrial purposes. Counsel told us on the hearing of this appeal, on 19^th January, that Newman J had refused permission to amend on the grounds that to raise such a point was incompatible with the direction for the hearing of the preliminary issue which he had decided in 2005. Since then, he has delivered a written judgment, on 9 February 2006, [2006] EWHC 133 (QB), giving his reasons for granting a permanent injunction to restrain the use of the cooking plant and related areas (identified in the planning application made in 2001), but not any other part of Rookery Farm, for industrial use.

That therefore is the position as regards the separate proceedings in relation to planning control. It would of course be open to Mr Clarke to seek to appeal the decisions made by Newman J and it may also be open to him, notwithstanding the judge’s decision, to apply to the Council for the issue of a certificate of lawful use, on the basis that before 1999 he had been using the cooking plant for industrial purposes for the necessary period. Whether he makes any such application, and its eventual outcome, are matters of speculation.

In the meantime there were more occasions on which local residents felt aggrieved at smells which they considered to be emanating from Rookery Farm, particularly in August 2003 but also later and to some extent in 2004. That led the Council to restore the committal application, relying on these more recent breaches. That application came before Sir John Blofeld sitting as a Deputy High Court Judge in Norwich from 13^th December 2004. In order to reduce the scope of the hearing, Mr Clarke at the outset admitted three breaches of the undertaking occurring in August 2003 in relation to which he said that there were substantial mitigating circumstances. The Council did not press its case in relation to breaches on other dates in 2003 but did seek to prove that there had been separate breaches in June 2004. The matter was adjourned after the hearing of evidence over five days. Counsel’s submissions were made on 12^th January 2005. The judge indicated at the conclusion of Counsel’s submissions that he would not find that any breaches of the undertaking in June 2004 had been proved for reasons which he would, and did, give later. On 12^th January he imposed fines in respect of the breaches that were admitted as having occurred in August 2003. Those fines were £2000 for the first breach on 13^th August, £3000 for the second on 18^th August and £4000 for the third on 22^nd August.

The position in August 2003 does seem to have been unusual. On 1^st July of that year new regulations had been brought into effect in order to comply with standards imposed by the European Community. Those prohibited burying fallen stock and farm dead on the farm where they died or putting them out to landfill. Instead they had to go to plant approved by DEFRA to be rendered. That led to a substantial and immediate increase in the volume of dead animals to be subjected to the rendering process. At the same time new and higher standards of rendering were introduced. In order to meet these requirements Mr Clarke installed some new equipment at the time. At about the same time an undertaking which had carried on the rendering process in Norfolk ceased trading and shortly after that another undertaking which had a cooking plant in Nuneaton suffered a large fire which destroyed that cooking plant. Mr Clarke said in evidence that by early August his plant was the only rendering plant left in the whole of the East of England. That was an extremely hot summer. Mr Clarke said, and one can well believe, that this resulted in exceptional mortality rates on poultry farms in the East of England and no doubt elsewhere. The inevitable result of all these factors was that by the second week in August his plant was receiving a huge increase in the volume of farm dead being brought to the plant. Mr Clarke went into considerable detail in his witness statement as regards the special circumstances obtaining at that time in relation to which the three incidents that he admitted by way of breaches of the undertaking in August had occurred. I need not go further into detail for present purposes.

In the course of his judgment on 12^th January 2005 in which he gave his reasons for imposing the fines that I have mentioned for the admitted breaches of the undertaking, Sir John Blofeld referred to Mr Clarke’s management of his plant and said that there was no indication that the management was inappropriate or that it was being run in a way that indicated that Mr Clarke was aiming to maximise his profit regardless of serious inconvenience that might be caused to the locality. He referred to the fact that there was a crisis in August 2003 because of the hot weather and the particular problems with the poultry industry and the absence of other rendering plants. He continued as follows:

“Quite clearly, Mr Clarke accepted loads which he should not have accepted. Consequently, it seems to the Court that one can understand him starting by dealing with too many loads and one can express some degree of sympathy with him, say on 13^th August, the first of three dates in a narrow window when there were more loads coming than he should have accepted. One can understand that he might have felt he was undertaking a public duty and no doubt making a rather greater profit, because, as he said in evidence, he was paid by the tonne for the amount of waste that he took in to dispose of.

He was both helping the public and helping himself, but it must have become abundantly clear to him that the smell that was being emitted because of that attitude of his was totally intolerable to the neighbourhood and regrettably, he did not do what he should have done which is to say no, that he would not continue with the many loads. He could only cope adequately with a much smaller amount particularly in this very hot weather.

In those circumstances, I have to decide what is the appropriate penalty. These cases are always extremely difficult. One bears in mind on one hand the fact, as Judge Mellor set out so eloquently, that the public have a right to their reasonable comfort and that comfort was being grossly abused by what was going on at Rookery Farm.

At the same time, this is not a man who was deliberately, in my view, permitting or causing a public nuisance in a reckless or grossly negligent way, but nevertheless he was in breach of his undertaking.”

In the light of those matters he considered that a prison sentence, whether immediate or suspended, was inappropriate but he bore in mind what Judge Mellor had said in December 2000 giving notice that there would have to be a penalty if there were further breaches. On that basis he imposed the escalating fines that I have mentioned. He gave his reasons for holding that there had been no further breaches in June 2004 in a separate judgment some two weeks later. Nothing turns on that judgment.

However, going back to 12^th January, having given judgment as I have summarised, the judge raised with Counsel a concern that he said he had about the terms of the undertaking. In particular he expressed concern about the fact that the undertaking was not limited in time and, he having raised that and Mr Marsden for the defendant seizing upon it, Mr Marsden also raised the question of the wording of the undertaking, in particular the words “or otherwise howsoever”. Some brief discussion on the part of Counsel and the judge followed on those points. A further hearing was necessary in any event for submissions and a decision on costs. That was arranged for a date to be fixed and it was agreed that submissions on the terms of the undertaking could also be made on the same occasion.

Mr Clarke did not apply for the undertaking to be varied. In a letter dated 11^th February solicitors acting for him wrote to the Council’s solicitors pointing out that by the end of May 2005 the undertaking would have been in force for five years. They suggested that the undertaking should by agreement lapse on that date and that the words “or otherwise howsoever” should be removed in the meantime. The Council’s solicitors did not respond to that until 13^th April, when they said that there should be no variation and asked whether an application to vary the undertaking was to be made or whether it was a point that would be raised in any event at the hearing. In either case they suggested that skeleton arguments should be exchanged. Mr Clarke’s solicitors did not issue an application nor did they submit a skeleton argument. The Council did on the other hand put a skeleton argument before the judge dealing, in particular, with the question of jurisdiction to discharge or modify the undertaking.

By the time of the hearing which took place on 20^th April, the parties had reached agreement as to the costs of the committal proceedings. That left for argument the question of any variation to the undertaking. In short, following argument, the judge decided that he had jurisdiction to modify the undertaking by way of releasing the defendant from aspects of it, and that it was just that he should do so. As regards the question of the period of the undertaking, he held that circumstances had changed by virtue of the passage of time. He referred to the planning proceedings and concluded that, in effect, the eventual outcome of those proceedings would and should supersede the undertaking as regards nuisance. He therefore limited the undertaking so as to expire on 1^st April 2007 thereby, as he thought, allowing plenty of time for the planning proceedings to be brought to a conclusion. He also deleted the words “or otherwise howsoever” from the undertaking as being too imprecise and uncertain. He ordered the Council to pay the costs of that day’s hearing and refused permission to appeal. Moore-Bick LJ granted permission to appeal on 23^rd September. Later he gave Mr Clarke permission to serve a Respondent’s Notice in which he not only seeks to uphold the judgment on other grounds but also seeks a further variation of the undertaking.

In Kensington Housing Trust v. Oliver (1997) 30 HLR 608, this court held that the court has jurisdiction to discharge an undertaking given to the court even if it was given in an order made by consent. Butler-Sloss LJ said that the jurisdiction existed and could be exercised if the discharge would be just. I must quote some passages from her judgment taken from pages 611 to 614:

Thorpe and Judge LJJ gave concurring judgments.

Thus, “if it is just to do so” is an accurate quotation but must be seen in its proper context. I agree with Buxton LJ that this is a necessary, but not a sufficient, condition for the exercise of the jurisdiction.

The facts of that case were quite different. The defendant was a tenant of the claimant who had given an undertaking not to cause a nuisance to her neighbours and in particular not to cause any further floods. In return the claimant had given an undertaking to offer her suitable alternative accommodation. After such an offer had been made the defendant had broken her undertaking, because there were further floods, and the claimant sought to be released from its undertaking. The court held, reversing the judge below, that it was open to the court to allow that, and that it would be just to do so.

The question here, on the basis that there is jurisdiction, is whether the facts justified discharge as to the period of the undertaking and its detailed terms.

It is accepted by both parties that the judge had jurisdiction to discharge or modify the undertaking. That was a discretionary power on his part, the discretion to be exercised in accordance with the guidance given in the case that I have cited. Accordingly, I must first address in more detail than indicated above the basis on which the judge did come to the conclusion that he should exercise the discretion so as to modify the effect of the undertaking.

After reciting the way in which the matter had come before the court and dispensing with the need for a formal application on the part of Mr Clarke, the judge referred to the fact that at the time the undertaking was given in the consent order Mr Clarke “had dispensed with his legal advisers”. The judge was not suggesting that advantage had been taken of him in those circumstances but suggested that, if he had been properly advised, points might have been taken that were not apparent to him without advice. So far as that is concerned it is correct, as I have mentioned, that Mr Clarke represented himself in the proceedings, apart from instructing Counsel for the purposes of arguing costs in April 1999. We are told that he had solicitors acting for him at the time, and that a junior member of the staff of the solicitors was present in court to give Mr Clarke practical assistance, not legal advice, as regards the management of the court papers and process. It may well be that Mr Clarke was not, in practice, in a position to obtain advice about the terms of an undertaking before he gave the interim undertaking on 5^th March. Plainly, if he had chosen to do so, he could have obtained such advice before he gave the undertaking in its final form on 19^th April 1999.

Turning then to the question of whether it would be just to do so, the judge said that it would be if the original wording was “demonstrably too Draconian, alternatively that circumstances had changed or a combination of both of those matters”. He went on to say that circumstances had changed because the original undertaking had been given in April 1999 and six years had passed which was in itself sufficient to be a change in circumstances and, he said, “would enable any court to consider that it might be just to alter the order or limit the length of the injunction”. He referred to the fact that the “injunction” had been designed not to start until Mr Clarke had carried out work on the premises and the fact that at that stage no one really knew how long it would take before teething problems had been sorted out. Nor was it known at that stage whether Mr Clarke was genuinely going to try to carry on a business which did not emit a nuisance by smell.

Mr Marsden, on behalf of Mr Clarke, submits that in that passage the judge should be taken to be referring back, implicitly, to the terms of his judgment on sanctions in January, from which I have already quoted, in which he concluded that Mr Clarke was indeed doing his genuine best to try to carry on such a business.

The judge then addressed the question of the time limit. He referred to the planning position and the current proceedings. By then Newman J had already decided the preliminary issue in favour of the Council; he said that it was agreed that the planning aspect of the matter would be known for certain within the next twelve months. However he decided to keep the undertaking in being for two years rather than only one, and the present uncertainty as regards planning nine months later demonstrates that in that cautious approach his attitude was salutary. In effect, therefore, his decision was that the undertaking should continue for a period sufficient for the planning aspect to be established for certain but that it need not last any longer than that. It is on that basis that it seems to me fair to describe the judge, although he did not say so in terms, as having proceeded on the basis that, whatever the outcome of the planning proceedings, that would and should take the place of the protection given by the undertaking.

He then turned to the words “or otherwise howsoever”. He referred to those as having been words commonly used in injunctions and undertakings, and as having been used as a matter of course, in the past. Mr Marsden had submitted that the climate had changed and that more specific words were being used at the time that the judge was considering the matter. The judge said that in his view these words were too imprecise and that they did not really add anything to the other words of the undertaking and caused unnecessary complications. On that basis he came to the conclusion that those three words should be deleted from the undertaking.

At the end of his judgment he mentioned that Mr Marsden had referred him to an authorisation granted by the Council to Mr Clarke under the Environmental Protection Act 1990, to which I shall refer shortly. He said that those were not matters of such importance that they should influence the court in its decision. The authorisation is now said to be relevant because it provides the Council with a different sanction over Mr Clarke in relation to any possible nuisance by smell. On that basis Mr Marsden submitted in his Respondent’s Notice that the undertaking ought to be further modified so that no act or omission would be a breach of the undertaking if it were not a breach of the terms of the authorisation. Possibly because of the absence of either a formal application for the modification or a skeleton argument in support of it, the judge proceeded on the basis that Mr Marsden was not inviting him to modify the undertaking further so as to reflect this point. Mr Marsden told us, however, that he had indeed taken the point about the authorisation before the judge but that the judge had, as appears from the passage to which I have referred, rather brushed it aside.

Leaving aside the relevance or otherwise of the authorisation, the first question is whether it was right for the judge to impose a time limit on the undertaking. This is not a case of a cause of action which is in itself limited in time so that the injunction must be limited correspondingly. That point could arise in respect of an injunction to protect a restrictive covenant or a copyright or patent, for example. Mr Marsden submitted that there is a modern tendency to limit injunctions, and correspondingly undertakings, in time, even if those are given after a final hearing rather than on an interlocutory basis. In support of that he referred to cases concerned with, for example, domestic violence or problems as between neighbours. In such cases it may be appropriate to give protection by way of an injunction, or demand it by way of undertaking, for a limited period, in the hope that the problem will be resolved, or at least that the threat will be removed or alleviated, within that period and on the basis that, if it is not, there can be a further application to extend the protection for the future. Given that an injunction or an undertaking carries the sanction of committal with the possibility of imprisonment, that is no doubt a salutary approach in a case where the situation which has given rise to the litigation is one which might well change for the better, particularly if it is subject to the sort of volatility that is sometimes true of both domestic problems and problems between neighbours.

In the present case it is true that some five years had elapsed since the undertaking came into effect. The previous history of the matter, however, was very lengthy and during the period for which the undertaking had already been in force, the Council had found it necessary, and had been held to be justified, to bring proceedings on two occasions for breaches of the undertaking. Both in December 2000 and in January 2005 the judge dealing with the application had said that the undertaking was legitimately needed for the protection of local inhabitants. In those circumstances it is not clear to me why the passage of five years by itself should be regarded as a good reason to consider the release of the undertaking.

The judge referred to the separate proceedings as regards enforcement of planning restrictions. There is, however, no necessary connection between the enforcement of planning and the enforcement of the right of residents not to be exposed to a public nuisance by way of smell. The fact, if it be so, that at the end of the planning process Mr Clarke is unable lawfully to, and does not, conduct an industrial business of cooking and rendering animal waste at the cooking plant does not by itself mean that he may not carry on operations which might cause a nuisance by smell. In practice, Mr Marsden submits, he will not because, before he embarked on the industrial process, what he was doing was carrying on a similar process as ancillary to his agricultural activities at the farm of rearing pigs but he cannot now do that because it is unlawful to feed that sort of substance to pigs since the restrictions imposed in 2001 as a consequence of the foot and mouth disease outbreak, which are still in force. Moreover, Mr Clarke has disposed of his entire stock of pigs. So, Mr Marsden submitted, if he has to bring to an end his industrial business, there will in fact be no agricultural activity open to him which would be at risk of causing the same nuisance by smell. Thus the neighbourhood would not in that event be further at risk. The fact remains that the question of nuisance is independent of the question whether Mr Clarke complies with his obligations under planning control and whether he is subject to injunctive sanctions to police that control. There is therefore no necessary logic in the judge’s attitude that, once the planning position is sorted out, the nuisance undertaking will be unnecessary. For that matter if it were to take yet longer to sort out the position as regards planning, or if the Council had been unable to obtain an effective injunction as regards planning, the nuisance undertaking would be needed in the meantime and there is no reason why it should be subject to any particular time limit.

It seems to me that, if Mr Clarke’s case was that the undertaking ought to be limited in time once the planning position is sorted out because in practice he will not be able to do anything that would be at risk of causing nuisance by smell, he would need to have said so in terms in evidence in support of the application so that the position could be properly tested. There is no such evidence because there was no application. In the circumstances that I have described, the judge was proceeding on the basis of the evidence that he had heard in the course of the committal application. In his witness statement in relation to that application Mr Clarke said nothing about what the position would be if the planning proceedings were decided against him. No doubt that was partly because the point had not been raised, but also partly perhaps so as not to anticipate or pre-empt the position in the planning proceedings. At all events there is no evidence before the court from the defendant from which the court could satisfactorily conclude that, if his attempt to obtain planning permission for industrial use fails, there will be nothing that he could or would do at the farm that would be at risk of causing a nuisance by smell. It seems to me that, in the absence of such evidence, it was not appropriate for the judge to proceed on the basis that that was a reason for limiting the duration of the undertaking.

What then is the effect of the authorisation granted to Mr Clarke by the Council under the Environmental Protection Act 1990 Part I, and the relevant regulations, on 31^st March 2000, and amended on 25^th July 2000? The authorisation permits Mr Clarke to carry out the processing of animal remains and by-products at Rookery Farm. It sets out a detailed description of the authorised process and then the conditions subject to which the authorisation is granted. For present purposes the relevant condition is 1(ii) as follows:

“No offensive odour from the process shall be detectable beyond the site boundary. The operator shall not be in breach of this condition if it can be shown that all reasonable steps were taken and due diligence was exercised to prevent the release of offensive odour.”

As it says, this authorisation was granted under the Environmental Protection Act 1990. In Part I of that Act, section 6(1) is as follows:

“No person shall carry on a prescribed process after the date prescribed or determined for that description of process by or under regulations under section 2(1) above (but subject to any transitional provision made by the regulations) except under an authorisation granted by the enforcing authority and in accordance with the conditions to which it is subject.”

Section 7 of the Act sets out provisions as to the conditions to be included in the authorisation. By section 7(4) a general condition is implied in every authorisation in the following terms:

“that, in carrying on the process to which the authorisation applies, the person carrying it on must use the best available techniques not entailing excessive cost-

(a)

for preventing the release of substances prescribed for any environmental medium into that medium or, where that is not practicable by such means, for reducing the release of such substances to a minimum and for rendering harmless any such substances which are so released; and

(b)

for rendering harmless any other substances which might cause harm if released into any environmental medium.”

Section 12 deals with the revocation of an authorisation and permits the enforcing authority at any time to revoke an authorisation by notice in writing. Enforcement is dealt with first by section 13 which provides for enforcement notices which can be served if the enforcing authority thinks that the person carrying on the prescribed process is contravening any condition of the authorisation. Section 15 provides for appeals as respects authorisations and against variation and enforcement notices and including appeals against revocation of an authorisation. The appeal is to the Secretary of State. In that respect, as in some other respects under this legislation, the statutory regime has some similarity with the town and country planning legislation. Section 23 creates offences, the first of which is the contravention of section 6(1). That is punishable on summary conviction with a fine not exceeding £20,000 or imprisonment for a term not exceeding three months, or both, and on conviction on indictment with a fine or imprisonment for a term of not exceeding two years, or both.

As with planning legislation, the Act also provides for the authority to take proceedings in the High Court for the purposes of securing compliance with an enforcement notice if the enforcing authority considers that proceedings for an offence would be an ineffectual remedy: see section 24. I note that by section 25(1), if proceedings are brought for the offence of contravening section 6(1) and that offence consists of a failure to comply with the general condition required or implied by section 7(4):

“It shall be for the accused to prove that there was no better available technique not entailing excessive cost than was in fact used to satisfy the condition”.

The only other provisions to which I need refer in the 1990 Act are those which provide for statutory nuisances of various kinds. Section 79 sets out what these are. Section 80 provides for abatement notices to be served in the case of a statutory nuisance and for summary proceedings before the magistrates for non-compliance with an abatement notice. Section 80(7) provides that it is a defence to such proceedings, in any circumstances likely to be relevant to the present case, to prove that the best practicable means were used to prevent or to counteract the effects of the nuisance. Section 79(10) prevents a local authority from instituting summary proceedings in respect of a nuisance of a relevant kind if proceedings in respect of it might be instituted under the provisions of Part I, unless that authority has the consent of the Secretary of State to do so.

Although it is perhaps unlikely to arise, I note that under section 82, if a person is aggrieved by the existence of a statutory nuisance, he may lay a complaint before the magistrates court and the magistrates court may proceed to consider whether the nuisance exists or whether, though abated, it is likely to recur, and may make appropriate orders. The commencement of such proceedings is not subject to the requirement of the consent of the Secretary of State imposed by section 79(10), though if proceedings for such an offence are brought the best practicable means of defence is also available: see section 82(9).

Part I of the 1990 Act is being superseded by regulations made under the Pollution Prevention and Control Act 1999, passed in order to implement a European Council Directive concerning integrated pollution prevention and control. Mr Clarke said in his witness statement on the committal application that he had applied for a licence under the 1999 Act which would replace the authorisation under the 1990 Act, but the outcome of that application was not then known.

Mr Marsden submits that it would be an abuse of power or process for the Council, having given Mr Clarke the authorisation to which I have referred under the 1990 Act, to proceed by way of a committal application for breach of the undertaking if the acts complained of would not be breaches of the terms of the authorisation. That is the basis on which he submits that the undertaking should be qualified in the way that he suggests. That calls for some consideration of the relationship between the regime under Part I of the 1990 Act and the law relating to public nuisance.

It is relevant in this context to note that the local authority, in bringing the present proceedings, was acting under the authority of the Local Government Act 1972 section 222. Subsection (1)(a) of that provides as follows:

“(1)

Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area (a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name.”

Before that provision was made it was necessary, if proceedings for public nuisance were to be brought, for either the local authority or one or more local residents to sue in the name of the Attorney General by way of a relator action.

In principle the statutory regime under the 1990 Act and the law relating to public nuisance are quite distinct. Mr Marsden submitted, however, that it would be a defence to a claim that acts or omissions of a person such as Mr Clarke constituted a public nuisance, for him to show that they were authorised by such a document as the authorisation granted under the 1990 Act. This would be based on the principle that if something is done which is authorised by statute, which cannot be done without causing something which would otherwise be a nuisance, the statutory authorisation provides a defence to an action for that nuisance so long as every reasonable precaution consistent with the exercise of the statutory powers has been taken to prevent a nuisance occurring: see Allen v. Gulf Oil Refining Limited [1981] AC 1001. It is clear from the cases concerning that principle that the onus is on the person who seeks to justify his acts or omissions by reference to statutory authority to show that a nuisance is an inevitable result of carrying out that which is authorised by or under the statute as well as to show that every reasonable precaution has been taken. If Mr Clarke were able to avail himself of that principle it would make no difference whether the claimant was the local authority or one or more local residents proceeding in the name of the Attorney General. Accordingly the identity of the claimant is irrelevant and the only question is whether the acts in question could be justified under this particular principle.

Although it is clear from Mr Marsden’s submissions to us and from the observations at the end of the judge’s judgment that Mr Marsden did refer to the authorisation and seek to justify Mr Clarke’s actions by reference to it, Mr Clarke having put the authorisation in evidence in his witness statement on the committal application, it also seems clear that the legal relevance of the authorisation, on the basis which I have just described, had not been analysed in this way at any stage of the hearings before the learned judge. It seems to me that if a point of this kind is to be taken it would have to have been either as a defence to the claim or, not having been taken at that stage, upon the application to discharge or modify the undertaking. It was not any part of the basis for that application because there was no such application. Having regard to the procedural history to which I have referred one can see why Mr Clarke did not issue an application or put in evidence in support of it. His representatives clearly thought it appropriate and sufficient to rely on the lead given by the judge without further evidence. However, it follows that the judge did not have the opportunity to consider whether the evidence shows that the principle described above applies, so that everything which would otherwise be a public nuisance and the subject of the undertaking would in fact be authorised under the terms of the authorisation and therefore immune from proceedings for nuisance.

It seems to me that it would be inherently difficult to do that, and that may have been another reason why no attempt was made to do it in advance. It would be easier, as in Allen v. Gulf Oil Refining, to consider the application of the statutory authority defence to acts or omissions which have already taken place, such as the emission of particles from a refinery as in that case, whereas in the present case the suggested relevance of the authorisation is in relation to conduct taking place in the future. That being so, and particularly having regard to the fact that the onus would be on Mr Clarke to show that all aspects of the statutory authority defence are made out, it seems to me that the judge was quite right not to pay any regard to the existence of the authorisation. Even if Mr Marsden did invite him to qualify the undertaking by reference to the authorisation, as he has by his Respondent’s Notice to this court, it seems to me that it would not have been appropriate to subject the undertaking to any such qualification. If there were to be committal proceedings in future following further events said to cause a public nuisance, it would be open to Mr Clarke to seek to demonstrate that what had happened was covered and justified by the terms of the authorisation and on that basis, if he can, to invoke the statutory authority defence to show that there had been no public nuisance and therefore no breach of the undertaking. That seems to me to be the limit of the relevance of the authorisation in relation to the undertaking.

I would therefore reject Mr Marsden’s submissions that either the mere passage of time or the existence and potential outcome of the planning proceedings, or for that matter what he suggested was the relatively good track record of Mr Clarke in respect of the undertaking since the completion of the installation of the new cooking plant in December 2000, was any adequate justification for subjecting the undertaking to a time limit. It seems to me, with respect, that the judge paid inadequate regard to the fact the undertaking was given at the conclusion of proceedings which might very well otherwise have resulted in a permanent injunction. The judge seems to have been influenced to some extent by the fact that the defendant was acting in person when he gave the undertaking. That is true but he was in a position to seek advice, at any rate before he gave the undertaking on a final basis, and I would not regard that factor as relevant to the court’s consideration.

All in all, it seems to me that there was altogether insufficient justification for limiting the effect of the undertaking in time as the matter stood before the judge. It seems to me that, in coming to the conclusion that it would be just to provide for the injunction to be discharged as of 1^st April 2007, the judge misdirected himself and proceeded on a wrong basis, and without evidence which justified the position that he took.

I also consider that there was no adequate basis for removing from the undertaking the words “or otherwise howsoever”. The point of those words is that, when the court grants an injunction or accepts an undertaking, it is concerned to ensure that the defendant will not do the prohibited acts in any way, directly or indirectly. As the judge himself recognised, they were a standard feature of the language of injunctions and undertakings at the time the undertaking was given in March and April 1999. Nowadays different language would be used for the same purpose. Mr Marsden showed us a number of precedents, from the Civil Procedure Forms and elsewhere. According to Form N16, the court orders that the defendant is forbidden “whether by himself or by instructing or encouraging any other person”. In the notes to that form, it is suggested that if the defendant is a limited company the words about acting by himself or by any other person are to be deleted and replaced by the words “whether by its servants agents officers or otherwise”. A passage from Atkin’s Court Forms, volume 22(1), paragraph 12 at footnote 4, suggests that in relation to an individual defendant it be ordered that the defendant is forbidden to do whatever is prohibited “whether himself or by his agents, employees, or contractors or in any other way at all”. The objective of covering both direct and indirect actions and omissions on the part of the defendant is necessary and legitimate and accounts for the words in question. The precedents quoted to us show that in some respects the language normally used for injunctions, and therefore no doubt also for undertakings, nowadays is somewhat different. In particular, although the words “or otherwise” may be used, the word “howsoever” may not usually appear.

It seems to me that it was not an appropriate exercise of the court’s jurisdiction to modify the language of the undertaking in this way. If it were appropriate to recast the language of an undertaking because its language was rather outdated, the right course would be to bring it up to date in all relevant respects and to include words designed to cover the sort of point that is aimed at by the words objected to, for example, by putting in such words as “or in any other way”. In agreement with Buxton LJ, however, it seems to me that it could never be an appropriate exercise of the jurisdiction of a first instance judge to change the wording of a previous order given on a final basis unless that were justified by circumstances such as a change of relevant facts. The judge’s approach on this point suggests that he considered that the order was inappropriate from the outset. If that was the basis for his approach then it seems to me that that was the proper subject of an appeal and not for reconsideration at first instance. Both for that reason and because it seems to me in any event the language of the undertaking was not inappropriate, I respectfully disagree with the judge’s conclusion that these words ought to be cut out.

In summary it seems to me that the Council and the local inhabitants were entitled to proper protection against nuisance by smell on an indefinite basis against the defendant in the light of the long past history of the matter and also in the light of some of the history since the undertaking was given. Both Judge Mellor in December 2000 and Sir John Blofeld in January 2005 recognised the legitimate need for protection of the residents and the Council which was afforded by the undertaking. It does not seem to me that the defendant had even begun to discharge the burden that would be on him of showing that, either because of changes of circumstances, or because of the authorisation under the 1990 Act, the local residents and the Council did not any longer require the undertaking, or at any rate would not require it after April 2007. For those reasons it seems to me that there was no good reason for the undertaking to be discharged as of that date in the future. For the separate reasons just given I would not accept that there was any justification for altering the wording of the undertaking in the meantime. For those reasons together I would allow the appeal and dismiss the Respondent’s Notice.

For the reasons given by both Lord Justice Buxton and Lord Justice Lloyd I agree that the appeal should be allowed and the Respondent’s Notice dismissed.

I agree that the appeal must be allowed and the Respondent’s Notice be dismissed. There is nothing that I wish to, or could, add to my Lord’s judgment, save for supplementing the note of caution that he has already sounded, about the general issue of the jurisdiction that the judge considered himself to be exercising, based on the decision of this court in Kensington Housing Trust v Oliver (1997) 30 HLR 608.

That jurisdiction has to be considered against the background of three undoubted principles:

Accordingly when, as in the present case, the undertaking was recited in the order of the court, and was undoubtedly given as an alternative to the final injunctive relief to which on Judge Mellor’s findings the local authority would have been entitled, those principles would seem to militate strongly against the disturbance of the terms of the undertaking other than on appeal.

Kensington Housing Trust was not directly on the present issue because, as my Lord pointed out in the course of argument, the obligation imposed by the undertaking in that case was not such as could have been imposed by the court by way of an injunctive order. As Butler-Sloss LJ put it at p 611, following an observation of Lord Brandon in Livesey v Jenkins [1985] AC 424 at p 444:

“Undertakings are convenient since a party can promise to do or abstain from that which a court would be unable to order. In that way an undertaking may cover a situation not capable of being the subject of a court order”

And, additionally, there was a strong element of reciprocity in Kensington Housing Trust that is absent from our case. All that said, however, it is fairly clear that this court did envisage the setting aside, and thus the alteration, of any undertaking, final or not, in appropriate circumstances. What therefore needs careful scrutiny is the basis on which that jurisdiction can be exercised.

Two bases were suggested to the judge and to us:

As to the first of these, while it is no doubt a necessary condition that an order under this jurisdiction, as under any jurisdiction, should be just, I cannot accept that that is a sufficient condition, and cannot accept that this court in Kensington Housing Trust intended so to hold. The judge’s view that he was entitled to do justice without further qualification led him into error in three ways. First, he seems, at his §7, to have been influenced by the fact that when the undertaking was given Mr Clarke had “dispensed with his legal advisors”. That might, on appeal, be a ground for saying that consent had not been full or properly informed, but it cannot be a reason for the alteration of the order by a court of concurrent jurisdiction. Secondly, the judge thought that the original order was “demonstrably too Draconian” (§13); and that the term “or otherwise howsoever” should not have been included (§25). In both of these respects the judge impermissibly converted himself into an appellate court. There was no basis for that step, apart from his belief that it was open to him critically to review the justice of another judge’s order.

This jurisdiction should, therefore, be limited to significant change of circumstances. Some guide to the necessary extent of the change is provided by Butler-Sloss LJ at p 613 of the report of Kensington Housing Trust, where she suggested that developments must have occurred which made it no longer proper to punish the undertaker for breach of his undertaking. It need hardly be said that that requirement is unlikely to be satisfied if, as happened in this case, the contemnor is in one and the same proceedings punished for contempt by breach of the undertaking and also relieved of future liability under the undertaking. And, quite apart from that, for the reasons given by my Lord the stringent standard required to alter an undertaking given in lieu of a final injunction was plainly not met in this case.