BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Jersey Unreported Judgments


You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Yate's v Reg's Skips Limited [2007] JRC 237 (11 December 2007)
URL: http://www.bailii.org/je/cases/UR/2007/2007_237.html
Cite as: [2007] JRC 237

[New search] [Context] [Printable version] [Help]


[2007]JRC237

royal court

(Samedi Division)

11th December 2007

Before     :

Sir Philip Bailhache Kt., Bailiff, and Jurats Tibbo and Morgan.

 

Between

Marc Silvanus Dorey Yates

 

And

Michaela Yates nee Van Neste

Plaintiffs

And

Reg's Skips Limited

 Defendant

Advocate M. St. J. O'Connell for the Plaintiffs.

Advocate A. J. Clarke for the Defendant.

judgment

the bailiff:

1.        The plaintiffs (to whom we refer individually as "Mr Yates" and "Mrs Yates") purchased a large granite 18th century property called "Les Ormes" (to which we shall refer as "the property") in 1995.  They undertook works to renovate and improve the property, taking considerable care to retain the traditional features and characteristics of a house of that period.  They moved into occupation in 1999, and both plaintiffs devoted much time and effort to the creation of a substantial and attractive garden.  At the time when the plaintiffs moved into occupation, the neighbouring property to the south was a working dairy farm called "Heatherbrae Farm".

2.        Until about 2002 Heatherbrae Farm continued to be used for agricultural purposes.  At about that time, however, the dairy herd was sold and it ceased to be used as a farm.  A number of agricultural buildings were let for storage purposes, the Planning and Environment Committee of the day having consented to the relevant change or changes of use.  The beneficial owner of Heatherbrae Farm, Mr Christopher Taylor, at some stage came to see Mr Yates to explain that one of the tenants was to be a scaffolding firm, but that all noisy activities would take place inside one of the buildings.

3.        In July 2005 the defendant company, which is owned by Mr and Mrs Pinel, became a tenant at Heatherbrae Farm.  Mr and Mrs Pinel had started their business in 2000 and incorporated the defendant company in 2001.  It began trading at premises in St Peter, but in 2004 it moved temporarily to occupy other land known as La Prairie in the Route de Beaumont, before relocating to Heatherbrae Farm.  The defendant company's business involves the sorting of mixed loads (i.e. skips filled with material which cannot be dumped together or which requires recycling).  The sorted materials are thereafter transported to appropriate dumps or recycling sites.  In addition it stores a number of skips at the site when they are not out with customers.  The use of the site at Heatherbrae Farm by the defendant company was sanctioned by the Planning Department but we shall deal with that in more detail below.

4.        During the winter of 2005-2006 the plaintiffs started to become aware of increased noise coming from Heatherbrae Farm.  At first they thought it related to the activities of the scaffolding company whose tenancy had in fact come to an end at about the time when the defendant company took up occupation.  Mrs Yates mentioned her concerns to her husband on several occasions during this period, but for a number of reasons he did nothing about it.  It was only in the spring of 2006 that, under pressure from Mrs Yates, Mr Yates made enquiries and ascertained that a skip business was now being operated at Heatherbrae Farm.  In April 2006, Mr Yates went to Heatherbrae Farm and noted what he described as "incredible" noise coming from a mechanical digger which was being used to sort rubbish.  Mr Yates made enquiries of the Planning Department and ascertained that an application for change of use had been advertised at a time when the plaintiffs were away on holiday.  An official from the Public Health Department visited the property at the request of Mr Yates and told the plaintiffs that he was unaware of the permission granted to the defendant company to operate at Heatherbrae Farm.  On inspecting the Planning Department's files, Mr Yates noted that the other commercial tenants at Heatherbrae Farm were subject to conditions in terms of noise pollution, but that no such conditions attached to the permit relating to the defendant company's operations.

5.        Mr Yates complained to the Planning Department which visited Heatherbrae Farm in May 2006.  Enforcement officers directed that the mechanical sorting by digger should cease until the appropriate amendment of the planning permit had been sanctioned by the Minister.  In June 2006 the plaintiffs conducted an exercise of counting the number of vehicles arriving at and leaving Heatherbrae Farm.  The average daily vehicle movements amounted to 300, of which about 40 were lorries belonging to or associated with the defendant company.

6.        In September 2006 the plaintiffs were becoming frustrated at the perceived failure of the Planning Department to remedy the situation.  On 12th October 2006 the plaintiffs' legal advisers sent a letter before action to the defendant company setting out the plaintiffs' complaints and asking that the company should desist from using the mechanical digger and within a period of three months desist from sorting refuse on the site.  They invited proposals as to how the business could be conducted without adversely affecting the plaintiffs' enjoyment of the property.  The Minister had in the meantime allowed limited mechanical sorting to take place between 10 a.m. and 12.30 p.m., and had deferred for 3 months a decision on whether to grant the defendant company's application to amend its permit while acoustic advice was sought by the defendant company.  That decision prompted the plaintiffs to seek to institute proceedings against the Minister by way of judicial review, but leave was refused.  In January 2007 the Minister refused the application of the defendant company to expand its activities and caused a notice to be served on the defendant company requiring it to cease the use of a mechanical digger and to cease intensification of the use which had been permitted.  The defendant company appealed, and after taking legal advice the Minister withdrew the notice.  The defendant company resumed the use of its mechanical digger.

7.        On 23rd April 2007 the plaintiffs began proceedings by Order of Justice against the defendant company alleging a breach of its duty in voisinage and seeking damages and an injunction preventing the defendant company from operating its skip business at Heatherbrae Farm or within one mile of the property.  The defendant company has denied any such breach.

The law

8.        The duty of an owner or occupier of land in voisinage was first laid down in a judgment of Le Masurier, Bailiff in Searley v Dawson [1971] JJ 1687.  The Court held that there existed a mutual duty in quasi-contract which obliged each neighbour not to use his property in such a way as to cause damage to the other.  As expressed in the second appendix of Poitier's Traité du Contrat du Société volume 5 page 245 paragraph 235:-

"Le voisinage oblige les voisins à user chacun de son héritage, de manière qu'il ne nuise pas à son voisin".

The principles of voisinage were considered exhaustively in judgments both of this Court and of the Court of Appeal in Gale and another v Rockhampton Apartments Limited and another [2007] JLR 27 and [2007] JCA 117B respectively, and we shall not repeat them here.  Both counsel agreed that they were the principles to be applied in this case.

9.        It is a question, therefore, whether the arrival of the skip business conducted by the defendant company has given rise, by reason of the nature of that business, to a breach of the quasi-contractual duty in voisinage.  We shall deliberately not use the word "nuisance"; not because it is not a convenient shorthand to characterise the conduct which breaches the duty in voisinage, but because it is apt to mislead in being confused with the English technical concept of that name.  We shall instead examine the evidence against the background of the duty not to use one's property in such a way as to cause harm to one's neighbour.

10.      There is, as counsel for the plaintiffs has submitted, an evidential threshold to overcome, so as to demonstrate a breach of the duty and to justify the grant of a remedy for that breach.  We live in an increasingly crowded Island, and standards of tolerance of noise and disturbance must move with the times.  Before the invention of the internal combustion engine farming was a relatively quiet industry.  Apart from the occasional lowing of cattle and grunting of pigs, little would have disturbed the peace of the countryside.  Nowadays farming involves tractors, threshers, potato harvesting machines and many other forms of mechanical equipment which cause noise and disturbance to a greater or lesser extent.  Neighbours must in general put up with that.  The principle in relation to odours is similar.  The spreading of manure on agricultural land, for example, can cause temporary offensive smells which, in general, must be tolerated.  Sometimes, however, the barrier is surmounted and a breach of the duty not to cause harm to one's neighbour will be held to have arisen.  One example was Curry v Horman (1889) 213 EX 511 where the deposit of refuse on land 70 feet away caused an overpowering stench to permeate the plaintiff's house.  Another example was Mercer v Bower [1973] JJ 2453 where the Court held that the operation of a piggery in close proximity to residential properties could not be undertaken without adversely affecting to a substantial degree (harming) the interests of those neighbours.

11.      In the context of noise a breach of duty was found in Magyar v Jersey Strawberry Nurseries Limited [1982] JJ 147 where the glass blowing activity in a craft centre was held to cross the threshold of reasonableness.

The evidence

12.      We turn therefore to consider the evidence as to the operation of the defendant company's business.  We observe first of all that the plaintiffs were, as it were, first on the scene.  This is not a case of constructing residential property in the vicinity of an industrial enterprise.  It is a case of the establishment of a commercial operation in a quiet rural area.

13.      The evidence of the plaintiffs was that the noise was intolerable.  Mr Yates stated that the noise of the engine of the mechanical digger, the clanking of caterpillar tracks, mechanical arm and bucket of the digger, as well as the impact noise of the rubbish being lifted, sorted and dropped was considerable.  Whenever skips were emptied or put into or out of storage a loud booming noise was made.  Mr Yates also complained of significant numbers of lorries arriving at and leaving Heatherbrae Farm with skips or rubbish.  On 3rd October 2007 he stated that there were 29 such movements and on 4th October 2007, 31 such movements, which related to the defendant company's business.

14.      Mrs Yates stated that she had become aware of the noise coming from Heatherbrae Farm during the winter of 2005/2006 and had asked her husband to do something about it.  In February 2006 they had erected a fence on the boundary to try to mitigate the noise.  As time went on she had found that the noise seriously affected her enjoyment of her home.  She could no longer take an interest in the garden and rarely ventured into it because it was so distressing.  The noise invaded her home and her thoughts.  Periods of quiet were interrupted by loud bangs and crashes throughout the day.  The swimming pool had been used only twice during the summer of 2007.  She said that the noise of the defendant company's operation was violent and brutal.  On occasions when she had been ill in bed during the day, she had been awoken by the sudden crashing noises.  In cross examination she said that she was a tolerant person and that in general she would put up with things rather than make a fuss.  She denied that she had exaggerated the problem.

15.      Evidence was also given by Mrs Victoria Yates, the sister-in-law of Mr Yates and Mrs Yates, who often visited the property, and Mrs. Dorothy Van Neste, the mother of Mrs Yates who also spent time at the property.  In general they corroborated the evidence of the plaintiffs although in cross examination they were both uncertain about the times when they had first noticed the noise.

16.      The plaintiffs called Mr David Watkins, a private detective, who arranged for a video camera to film the frequency of movements of the lorries.  In cross examination he conceded that he had not remained on the site very long.  He was challenged about his evidence that some skips had been seen suspended on their cradles as the lorries were driven in to and from Heatherbrae Farm.  Mrs Pinel, a director of the defendant company, gave contrary evidence. 

17.      The plaintiffs were permitted to call evidence from Mr Peter Le Gresley, an Assistant Director of Planning.  Mr Le Gresley stated that at the time when planning permission was given for the defendant company to move to Heatherbrae Farm it was considered a suitable site on the basis of the level of activity which had occurred at La Prairie, i.e. skip storage with some sorting from time to time.  The actual effect of the defendant company's activities on the plaintiffs had not been anticipated; it appeared that the operations at Heatherbrae Farm were significantly more intense than those conducted at La Prairie.  If they had been anticipated, it was likely that the application for planning permission would have been refused, or more precise conditions attached to the permit.

18.      Both parties called expert evidence.  The plaintiffs called Mr Steven Gosling who holds an honours degree in engineering acoustics from the Institute of Sound and Vibration Research at the University of Southampton.  He has been a member of that Institute for 12 years and is Director of 24 Acoustics, a consultancy firm specialising in the assessment of acoustics, noise and vibration.  The defendant company called Mr Robert Whiteman who is a chartered civil engineer with a Diploma in Acoustics.  He is the Principal Acoustic Consultant with Southdowns Environmental Consultants Limited.  We find that both men are eminently qualified to give expert evidence.  Regrettably there was no joint report, nor any assessment of the points of difference between them.

19.      Mr Gosling had visited the property in February and October 2007 and made noise measurements between 1st and 8th February and between 3rd and 4th October.  The instrument was installed in the garden of the property at a height of 1.5 metres.  The purpose was to achieve objective background noise data, (i.e. from the adjacent road, bird song, tree rustling etc) and to assess the impact of skip movements and sorting.  Mr Gosling found that the background noise level in October was between 35 to 40 decibels.  This was consistent with the measurements taken in February which had yielded a background of noise level of 35.5 dB.  Mr Gosling found that the rating level of noise from skip movements using BS 4142 was 54.8 dB.  Having deducted the background noise level, the difference was 19.3 dB.  Similar calculations on the operating noise from the yard yielded an BS4142 rating of 55.7 db and a difference of 20.2 dB.

20.      Mr Gosling stated that the threshold for actionable nuisance in the UK according to BS 4142 was + 10 dB and that the noise levels at the plaintiffs' property resulting from the operations of which complaint is made were significantly in excess of that level.  He added that skip operations were always noisy and that he had been involved in advising in relation to the siting of such an operation in Southampton.  In that case the site had been 250 metres away from residential property and situated in a bowl which caused additional attenuation.  There had been no complaints.  By comparison, the defendant company's site was 50 metres away from the boundary and 110 metres away from the plaintiffs' house.

21.      Mr Whiteman agreed on the basis of Mr Gosling's data that the background noise level in the garden of the property was between 35 to 40 dB.  He assessed it at 38 dB.  Thereafter, however, there was more disagreement than agreement between the two experts.  Mr Whiteman took measurements from 3 sites within Heatherbrae Farm during September 2007, although the data from one of those sites was regarded as unreliable.  He took no measurements in the garden or elsewhere at the plaintiffs' property.  He agreed that as a matter of principle it would have been preferable to get data from the position at which complaint was made, but he had not thought it appropriate to approach the plaintiffs to seek their permission.  He had therefore estimated the effect on the basis of his measurements at Heatherbrae Farm.  He disagreed with Mr Gosling that BS 4142 was the appropriate guide.  He stated that local authorities would use it to assess the likelihood of complaints, but that exceeding the limits laid down in BS 4142 did not necessarily imply a nuisance.  BS 4142 was just one method of assessment.  He quoted a Noise Advisory Council Report which stated of BS 4142:-

"there can be no absolute quantitative standard by which to determine whether a given noise was a nuisance; and BS 4142 does not purport to provide such a standard".

22.      Mr Whiteman referred to WHO Guides for community noise which indicated that noise levels below 50 dB were generally acceptable.  Basing his opinion from the data from one of his monitoring sites within Heatherbrae Farm, (which was much closer to the source of noise than the plaintiffs' property) which showed that noise levels within a five minute period rarely exceeded 55dB, he concluded that not even moderate annoyance would be caused at the property.  He referred to BS 8223 which gives similar guidance on external noise levels for gardens and balcony areas.  He also referred to PPG24 which states that noise levels below 55dB need not be considered as a determining factor in granting planning permission for a new dwelling where ambient noise levels are made up of mixed sources.  He conceded, however, that this was not strictly applicable to the situation in dispute.

23.      Mr Gosling's response to these arguments was that BS4142 was unquestionably the appropriate standard in this case.  He stated that it was disingenuous to suggest that all proposed housing sites that experience a day time noise level of less than 55dB were "generally acceptable".  He asserted that guidance from both the WHO and BS 8233 applied to anonymous sources of noise, such as traffic, and not to specific industrial noise of a variable nature.

24.      Prior to trial the parties agreed, under directions from the Bailiff, that a demonstration of noise levels on the site would be conducted under the supervision of the two experts on 18th October 2007, the first day of the hearing.  Four skips would be taken to and from Heatherbrae Farm, two fully loaded and two empty.  They would be stacked and then the loaded skips would be sorted by the mechanical digger assisted by hand-sorting if necessary.  Acoustic measurements from the garden of the property would be taken.  The Court duly attended on the site and the demonstration took place over more than an hour.  From the perspective of the plaintiffs the demonstration was hardly a success.  Mrs Yates said that she was embarrassed and that if the noise had always been at the level experienced on that day, she would not have troubled the Court or anyone else.  The experts, unusually, did agree that during the demonstration the noise level associated with the mechanical digger was 40.2dB.  Applying the BS 4142 method (and Mr Gosling's data) the resulting rating was 0.8dB which was of less than marginal significance.  Mr Gosling's evidence was that he was told by a driver of a lorry that he was going to drive very slowly.  Mr Gosling had registered his concern during the demonstration that much of the material was soft and was being placed in the skips with great care.  There was a substantial amount of earth in the loaded skips which would have cushioned the noise.  Blocks of concrete being dropped more hastily into an empty skip would have created a very different impact.  Additionally, he thought that the manoeuvres of the drivers of the skip lorries were unusually careful.  The drivers would reverse and advance after inspecting their position so as to ensure that the skip was placed precisely on top of the one below.  In his experience, skips were more usually dropped with less care.  Even Mr Whiteman had reservations about the effectiveness of the demonstration. 

25.      Mrs Pinel also gave evidence for the defendant company of which she and her husband are the beneficial owners.  Her husband has experienced health problems in recent years, and she is fully engaged in the business, not only with book-keeping, payment of wages and collating of customers' orders, but also in distributing work to the drivers.  The defendant company's business involved the delivery and collection of skips, the dumping of the contents, sometimes after sorting, and the delivery of building materials such as sand, chippings and granite dust to customers.  It was the sorting of mixed loads which was the predominant activity at Heatherbrae Farm, to which they had moved in July 2005.  The defendant company owned a small mechanical digger but had access to a larger machine if the load was too heavy.  They had started with one skip lorry and about fifty skips or bins.  Now they had five skip lorries and about three hundred and fifty bins, and a Ford transit pickup truck.  She agreed that the company now had a lot more customers and was going from strength to strength.  She asserted that she did not think that the activities of her company were affecting the plaintiffs unduly and causing any kind of nuisance.  She had never been to the property, and had never been invited to do so. 

Conclusions on the evidence

26.      In broad terms we accept the evidence of the plaintiffs.  We were particularly impressed by the evidence of Mrs Yates, who spends more time at the property than anyone else.  It was clear that she was not a person given to complaining.  We think that the slowness of the plaintiffs to react to the arrival of the defendant company at Heatherbrae Farm was due principally to her nature and only secondarily to the fact that Mr Yates was dilatory in responding to his wife's concerns.  We accept that Mrs Yates no longer finds her garden to be a pleasure and that her enjoyment of the property has been adversely affected to a material degree.  We also accept that the evidence of Mrs Victoria Yates and of Mrs Van Neste was given honestly and fairly, even if it added little to the evidence of the plaintiffs.  We derived little assistance from the evidence of Mr Watkins. 

27.      We also accept that the evidence of Mrs Pinel was given honestly.  She could not, of course, comment upon the effect of the defendant company's activities upon the plaintiffs because she had never been at the property and experienced the noise levels from that situation. 

28.      As to the evidence of the experts, we must state first of all that it is highly regrettable that no consultation took place between them in relation to their reports.  It is true that Mr Whiteman was only instructed at a relatively late stage in early September 2007, but he or the defendant company must bear some responsibility for this state of affairs.  The report of Mr Gosling had been in the hands of the defendant company for many months, but no consultation with Mr Gosling took place before Mr Whiteman filed his report on 26th September.

29.      Be all that as it may, we prefer the evidence of Mr Gosling where it conflicts with that of Mr Whiteman for the following reasons.

(i)        Mr Gosling's calculations were based upon monitoring of the noise from the garden of the plaintiffs' property whereas those of Mr Whiteman were based in part upon calculations drawn from noise measurements taken at Heatherbrae Farm.  It seems to us that calculations drawn from measurements taken at the locus in quo are inherently more reliable than calculations which were to a certain extent predicted rather than measured. 

(ii)       It seems to us, upon an analysis of the different guides or standards which have been placed before us, that BS 4142 is the appropriate and relevant standard for the particular circumstances of this case.  We are not persuaded that BS 8233, PPG 24 or the WHO guides for community noise are helpful in the context of this case. 

(iii)      Taken in the round, we found the evidence of Mr Gosling to be more fluent and persuasive than that of Mr Whiteman.  We did not find, for example, Mr Whiteman's explanation of his failure to seek to place his equipment in the garden of the plaintiffs' property to be particularly cogent. 

30.      We accept the evidence of Mr Gosling that the difference between the background noise and the noise caused by the defendant company's activities was of the order of 18-20dB.  That technical evidence is consistent with the evidence of the plaintiffs, and in particular Mrs Yates, which we have already stated that we accept. 

31.      We find it significant that the plaintiffs did not notice the noise generated by the operation of Heatherbrae Farm for agricultural purposes.  Even when the user of the farm changed to various users associated with a small industrial estate, no complaints were forthcoming from the plaintiffs.  It is the case that a certain amount of noise is generated by the other tenants at Heatherbrae Farm.  It is clear, however, that it was only when the defendant company transferred its activities to Heatherbrae Farm that the level of noise and disturbance breached the barrier, or surmounted the evidential threshold to which we referred in paragraph 10 above.

Decision

32.      It follows that, in our judgement, the activities of the defendant company at Heatherbrae Farm constitute a breach of the duty of voisinage which is owed to the plaintiffs.  We reached this conclusion not without considerable sympathy for Mr and Mrs Pinel.  They were permitted, if not encouraged, by the Planning Department, to establish their business at Heatherbrae Farm which they did in good faith.  The difficulty is that any skip operating business is inherently noisy. 

33.      We note, en passant, that the duty in voisinage is a duty which cannot be delegated or avoided by an owner.  See the remarks of Le Masurier, Bailiff, in Searley v Dawson [1973] JJ 1687 at 1702.  If, therefore, a landowner lets his land to a tenant who conducts a business which the landowner knows, or ought to have known, is harmful to the interests or reasonable expectations of a neighbour, he too will be in breach of the duty of voisinage.  In this case, the plaintiffs have chosen to pursue their action against the tenant rather than the landowner.  We obviously make no findings in so far as the landowner is concerned. The plaintiffs seek an injunction preventing the defendant company from conducting its skip business at Heatherbrae Farm, although in the Order of Justice the prayer is expressed in rather wider terms. 

34.      Counsel for the defendant company did not, and we think realistically, suggest any way in which the effects of the operations of the skip business might be mitigated or avoided in the event that we were to find a breach of the duty of voisinage.  We think that a reasonable opportunity must be afforded to the defendant company to find another location for its operations.  Furthermore, the months in question are mainly winter months when only limited use of the garden would be made by the plaintiffs.  We accordingly grant an injunction preventing the defendant company from operating its skip business at or in the immediate vicinity of Heatherbrae Farm, such injunction to come into force on 1st May 2008. 

35.      By way of postscript, we direct that any application for the costs of these proceedings should be pursued only after a directions hearing before the Bailiff at which consideration can be given to the question whether any other party or parties should be convened. 

Authorities

Searley v Dawson [1971] JJ 1687.

Traité du Contrat du Société.

Gale and Clarke v Rockhampton Apartments Limited and Antler [2007] JLR 27

Gale and Clarke v Rockhampton Apartments Limited and Antler [2007] JCA 117B.

Curry v Horman (1889) 213 EX 511.

Mercer v Bower [1973] JJ 2453.

Magyar v Jersey Strawberry Nurseries Limited [1982] JJ 147.

Noise Advisory Council Report.


Page Last Updated: 20 Jul 2016


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/je/cases/UR/2007/2007_237.html