England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM COUNTY COURT
(HIS HONOUR JUDGE HALL)

		Royal Courts of Justice The Strand London WC2
		20th March 1998

LORD JUSTICE MILLETT: I will ask Lord Justice Chadwick to give the first judgment.

LORD JUSTICE CHADWICK: This is an appeal, brought with the leave of the judge, against an order made on 8th January 1997 by His Honour Judge Hall in the Newark County Court. By that order the judge granted injunctions against the defendants in respect of a nuisance arising out of the keeping or breeding of dogs at premises known as Firview, New Lane, Girton, Nottinghamshire. He also awarded damages to the plaintiff in the amount of £875 in respect of past nuisance from the same source. The plaintiff has cross-appealed, seeking an increase in the amount of the damages and a variation of the terms of the injunction granted in order to make it more restrictive.

The plaintiff, Mr Lloyd, is the owner and occupier of a dwelling house, land and poultry sheds at Oakfield, New Lane, Girton. He has lived there since 1988 with his wife and two children. He uses the lands and sheds for his business of rearing poultry. Oakfield adjoins Firview. Before the plaintiff moved to Oakfield the premises at Firview had long been used as boarding kennels for dogs; and that use continued for some years after his purchase. But, during the two or three years from 1992 to 1995, that use seems to have lapsed.

The first defendant, Mrs Symonds, purchased Firview in or about November 1995. She, and her co-defendants Kevin Anderson and Karina Lucas, went into occupation on 27th November 1995. They introduced a large number of dogs - said by the plaintiff to be between forty and fifty - onto the premises over the next few days. It is clear that the dogs made a great deal of noise. The plaintiff approached the Environmental Health Department of Newark and Sherwood District Council. The Council advised him to keep a record as to his complaints of noise; and this he did. That record covered the period 5th December 1995 to 16th June 1996 and was produced at the trial.

The Council set up recording equipment at the premises. On 15th February 1996 Mr Hutchinson, Team Leader Environmental Protection, wrote to Mrs Symonds in these terms:

"I am writing to inform you that, following complaints of excessive barking, etc, from the dogs at "Firview", monitoring of this noise has been carried out recently. The monitoring includes the tape recording of the noise in question, and although I am at present not satisfied of the existence of a Statutory Nuisance, the recordings do indicate that there is some basis for the complaints that have been received. Should the problem continue and the Council feels that the noise does constitute a Statutory Nuisance, it will have no choice but to serve upon you an Abatement Notice requiring steps to be taken to prevent excessive noise from the animals. Failure to comply with such a notice would be an offence which may result in prosecution. I would therefore advise you to take all practical steps to prevent the animals from making excessive noise, especially at night."

At about the same time, on 12th February 1996, Mrs Symonds had applied for licences under the Animals Boarding Act and the Breeding of Dogs Act 1973. On 15th March 1996 the District Council issued to Mrs Symonds a licence to keep a breeding establishment for dogs at Firview; but no boarding licence was issued. The breeding licence was to remain in force from 1st March until 31st December 1996. It was granted subject to conditions, which included the requirement that the number of bitches between eight months and eight years of age kept for breeding was not to exceed fifteen.

On 22nd April 1996 the District Council issued Abatement Notices under section 80 of the Environmental Protection Act 1990 in respect of a Statutory Nuisance arising from the prolonged and unrestrained barking of dogs at Firview. Separate notices were issued to each of Mrs Symonds, Mr Anderson and Miss Lucas. They were required to abate the nuisance within 21 days. The notices prohibited recurrence of the nuisance and for that purpose required Mrs Symonds and her co-defendants to take the steps set out in the schedule. Those were:

1. Provide constant and sufficient supervision of the dogs by person or persons capable of controlling the dogs.

2. Limit the number of dogs kept on the site to a number that is easily manageable.

3. Isolate any difficult dog or bitch in season in order to avoid causing undue distraction to other dogs.

4. Any other measures necessary to keep the dogs from being unreasonably noisy.

Following the service of the Abatement Notices Mr Hutchinson put Mrs Symonds in touch with Mrs Seabridge, a local kennel proprietor with some seventeen years' experience in that business. Mrs Seabridge advised certain steps that could be taken to reduce the noise. These included: (i) moving four kennels away from the boundary fence; (ii) reducing the number of dogs kept at Firview; (iii) the introduction of some background noise or music, provided by a radio; and (iv) the installation of an intercom or verbal alarm system.

The judge found as a fact that the noise arising from the defendants' use of Firview in keeping and breeding dogs did constitute an actionable nuisance during the period between 27th November 1995 and the end of May 1996. After referring to the Abatement Notices, he said this (transcript page 6F-7B):

"Thus it was that in April a nuisance had been continuing from about 27th November. It was, however, diminishing as time went on and I find that as a fact. The plaintiff and his family were, therefore, subjected to sustained and prolonged noise nuisance from the activities carried out by the defendants from the land of the first defendant for many months. The noise greatly exceeded what was reasonable, even allowing for the fact that this was a rural location with other agricultural noises emanating from other establishments and also the fact that Firview had been previously used for purposes with the kennelling of dogs over many years, maybe in excess of 40. The complaints by the plaintiff and his family are justified both in terms of extent and duration."

After refering to observations in this court in Robinson v Kilvert [1889] 41 Ch 88, at pages 94 and 97, the judge directed himself, correctly, that if the barking of the dogs kept at Firview would not have been noxious per se the fact that the plaintiff carried on an especially delicate operation at Oakfield would not render it so. But he rejected the suggestion that the plaintiff's use of his own premises for the breeding of poultry chicks was a factor that made him unusually sensitive to noise. He said this (transcript page 8B-E):

"The fact is, however, that the barking of the dogs was noxious for many months. I find that the defendants, and each of them, failed properly to control the dogs that were within Firview and, as I have said, it is no defence that the animals needed time to settle down following a move from Sussex. The barking and the disturbance went on for far too long to enable them to succeed in an argument that the nuisance was temporary only and did not amount to the tort. By reason of the lack of control I am satisfied that the plaintiff's enjoyment of his land was disturbed and that annoyance was caused to him and to his family in the exercise and enjoyment of his land."

Nevertheless, the judge was satisfied, on the evidence before him, that the nuisance had abated by late May 1996; that is to say had ceased before these proceedings were commenced. This appears from two passages in the judgment. First, at transcript page 8F-G:

"I find that the dogs had settled by about 28 days after the defendants had put in place the measures that they took following the service of the statutory nuisance notice but that, of course, is with the benefit of hindsight."

Secondly, at transcript page 9B-C:

"The fact is, however, that by about May 1996, with the benefit of hindsight, I find that the defendants had got their dogs under control even though there was some noise emanating if it reduced from the level of being a nuisance to being an inconvenience but not a nuisance in terms of the tort."

The judge's view that there had been an improvement following the service of the Abatement Notices receives support from a letter dated 2nd July 1996 from Mr Hutchinson to the defendants' solicitors. He wrote to confirm that:

"... following the service of the Abatement Notice under S80 of the Environmental Protection Act 1990 I am of the opinion (from the limited evidence I possess) that there is less noise from the dogs at the above [premises] than previously.

I suspect that the requirements of the notice may not have been fully met, but given the continuing efforts to reduce the number of dogs I feel that a serious attempt to comply has been made.

While it is an offence not to comply with the requirements of an abatement notice, in practice proceedings to prosecute for non-compliance invariably boil down to whether a nuisance still exists; I am not certain whether or not this is so at present."

Mr Hutchinson's letter of 2nd July 1996 was written shortly after these proceedings had been commenced and an interlocutory injunction had been granted. The proceedings were commenced by the issue of a summons in the Newark County Court on 20th June 1996. The particulars of claim served with that summons allege a continuing nuisance. The relief claimed is damages and an injunction to restrain the defendants from keeping any dogs at Firview so as to cause the plaintiff or any member of his family or household any nuisance arising from barking and whining of the dogs.

On 27th June 1996 the plaintiff applied for an interim injunction. The matter was heard by District Judge Cowling. He granted an injunction in substantially the terms sought in the summons, until trial or further order, restraining the three defendants from causing a nuisance. But he went on to order that the defendants should remove all dogs from Firview on or before 1st July 1996.

The district judge's order of 27th June 1996 was made on the basis of uncontradicted evidence contained in an affidavit sworn by the plaintiff on 20th June 1996. Exhibit "JL5" to that affidavit contains two copies of letters from the plaintiff's solicitors, dated respectively 23rd April and 7th June 1996, addressed to the defendants. As the affidavit and those letters make clear, the plaintiff's immediate concern was that he had a need to use a shed on his premises, adjacent to the common boundary, for the rearing of 1,400 day old turkey chicks; of which he was due to take delivery on 1st July 1996. The plaintiff explained in his affidavit that, if the dogs were not removed from Firview, he would be obliged to refuse delivery of the turker chicks with the result that he would be exposed to substantial claims for breach of contract and loss of profit.

Following the order of 26th June 1996 the defendants removed all their dogs from the premises at Firview. They were sent to boarding kennels around the country. That involved the defendants in considerable expense. The defendants decided to apply to vary or discharge the interim injunction. Affidavits were sworn by each of the defendants, the plaintiff, his wife and two of his neighbours (who supported the injunction), and by two officers of the District Council. The application to discharge came before Her Honour Judge Fisher on 26th July 1996. She varied the injunction granted on 27th June so as to permit the defendants to keep on the premises up to twenty dogs for showing purposes; but directed that twelve of those must be accommodated overnight within the residential part of the property and might only be outside for feeding, grooming or exercise purposes. The defendants were also permitted to keep within the residential part of the property a Cairn Terrier and her litter and a Petite Bassett Griffin and her litter, either of which might be replaced by an Irish Terrier and her litter.

The order of 26th July 1996 led to an application to commit the defendants for breach of the injunctions which it imposed. Affidavits were filed on both sides during August and September. That application came before His Honour Judge Hall on 12th September 1996 and was dismissed. The judge took the opportunity on that occasion to visit the premises at New Lane and see the position for himself.

The position, therefore, when the action came for trial before His Honour Judge Hall on 6th and 7th January 1997 may be summarised as follows:

(1) The premises at Firview had had the benefit of a breeding licence, issued by the District Council, since 1st March 1996.

(2) The premises were the subject of an Abatement Notice, issued by the District Council on 22nd April 1996, which had not been appealed and which had not given rise to enforcement proceedings.

(3) The nuisance from dogs had, as the judge found as a fact, abated by the end of May 1996 -- accordingly, there was no current nuisance when these proceedings were commenced on 20th June 1996 and no continuing nuisance thereafter.

(4) The defendants had been required to remove their dogs from the premises by the interim injunction granted on 27th June 1996 and had done so -- thereby incurring loss or expense.

(5) Since 26th July 1996 the defendants had been permitted to keep up to twenty dogs on the premises; but subject to the restrictions (a) that those dogs were for showing purposes only and (b) that twelve must be accommodated in the house.

(6) The judge had viewed the premises in September 1996, in connection with the application to commit for breach of the order of 26th July 1996, and must be taken to have satisfied himself on that occasion that there was then no current nuisance.

The judge found that there had been a nuisance from late November 1995 until the end of May 1996; but that it had ceased. In those circumstances the issues which the judge had to decide were (i) what damages should be awarded to the plaintiff in respect of the nuisance which had persisted from late November 1995 to late May 1996; (ii) should the defendants be restrained, for the future, from committing a nuisance which, on the judge's findings of fact, they had not been committing since the end of May 1996; and (iii) was this a case in which the defendants should recover damages under the plaintiff's cross-undertakings (expressed in the order of 26th July 1996 and to be implied in the order of 27th June 1996).

The judge dealt with the question of damages for nuisance on the following basis. He took "for pragmatic purposes" a cut-off point at 22nd May 1996 -- that being 175 days from the date when the defendants moved into Firview. He held that a daily rate of £10 was sufficient "to mark the defendants' actions in the matter". He then reduced the resulting figure (£10 x 175 = £1,750) by one half to reach an award of £875. He gave three reasons for that reduction: (i) that the plaintiff did not seek compromise or debate with his neighbours but chose to involve the local authority and solicitors without speaking to them; (ii) that the defendants sought to rectify the situation after service upon them of the Abatement Notice; and (iii) that the dog nuisance was diminishing in scope as time went on.

The defendants do not appeal against the award of damages for nuisance. But by a respondent's notice, the plaintiff seeks an order that that award be increased to £4,650 or such other sum as this court shall think fit.

The plaintiff criticises the judge's approach in three respects. First, it is said that the daily rate of £10 (£70 per week) is far too low; and that an appropriate rate would have been £150 per week as claimed by the plaintiff. The plaintiff's figure of £4,650 is computed on the basis of 31 weeks (from 27th November 1995 to 27th June 1996) at a rate of £150 per week. In the course of argument, the plaintiff's counsel submitted that that weekly rate should be increased from £150 to £210, that being £30 a day. The plaintiff relies on the dictum of Stephenson LJ in Bone v Seale [1975] 1 WLR 797 at page 803G, where an analogy was drawn between the loss of enjoyment of property as a result of some interference or nuisance by noise and losing an amenity as a result of personal injury. Counsel pointed out, correctly in my view, that damages for nuisance are not awarded to "mark the defendants' action in this matter" -- if and insofar as that phrase is to be regarded as an indication that the defendant should be punished -- but, rather, as compensation for the loss which the plaintiff has actually suffered.

Secondly, it is said that the plaintiff's damages should not have been reduced on the grounds that he did not seek compromise but chose to involve the local authority and the courts. It could not, or should not, be held that the plaintiff acted unreasonably in invoking the remedies which Parliament has provided or which the law affords.

Thirdly, it is said that the actions of the defendants in seeking to remedy the situation are, of themselves, irrelevant to questions of damages unless those actions do, in fact, result in an abatement.

In my view there is force in each of those contentions. I would, for my part, substitute an award of £3,000 in respect of the damages for nuisance -- that representing damages at the average rate of about £500 per month for the period of about six months during which the judge held that the nuisance continued. That average rate is intended to reflect the fact, as the judge held, that the nuisance was greater at the beginning of that period than at the end.

I turn then to the question whether the judge should have granted an injunction to restrain future nuisance. The plaintiff challenges the judge's finding that the nuisance had ceased by the end of May 1996. That, as it seems to me, is a question of fact which the judge, having heard the oral evidence, listened to the tape recordings and himself viewed the property, was in the best position to decide. The evidence of Mr Hutchinson, the only independent witness -- contained in the witness statement which he signed on 13th August 1996 and which stood as his evidence-in-chief -- was to the effect that there had been little or no noise coming from Firview on the third occasion on which the recording equipment had been placed on the plaintiff's premises (25th to 29th May 1996) and that that was consistent with his own observations when he visited the property on 26th June 1996. It is also consistent with his letter of 2nd July 1996, to which I have already referred, and with the fact that no proceedings were taken by the District Council to enforce the Abatement Notices served on 22nd April. We have been taken carefully through the affidavits, the witness statements and the transcripts of oral evidence. It has been submitted that there were good reasons why the recording equipment did not pick up noise during the period of 25th to 29th May 1996.

Taking this material as a whole, it is plain that there was evidence which would have enabled the judge to reach the conclusion that the nuisance which he had found to exist at the time that the Abatement Notice was served in April 1996 had continued throughout May and June. But, equally plainly, there was some diminution in the level and frequency of the noise. The question whether the diminution was sufficient to take the noise below the level at which it was properly to be regarded as a nuisance in law was, essentially, a question of fact and degree. In weighing that question the judge had the substantial advantage -- which this court does not have -- of assessing the witnesses, hearing the tape recordings and seeing the premises. He reached a conclusion which cannot be rejected as perverse. For my part, I would not think it right to interfere with the judge's finding of fact that the nuisance had abated by the end of May 1996.

That being so, the judge had to decide whether to grant an injunction to restrain a threatened nuisance -- there being no nuisance current at the commencement of the proceedings or at the date of his order. He addressed the matter in the following passages of his judgment (transcript page 9H-10C):

"Mrs Symonds has a licence to use the land for breeding up to fifteen bitches and she plans to board up to six dogs. Mr Anderson plans to operate a business from the premises of grooming and clipping dogs and the evidence is that he has received a grant in connection with that. Unless I prevent by injunction, therefore, it is likely that strange dogs will be introduced on to the premises with a degree of frequency and that at least was one of the causes of the problems in the past.

To hold the balance between the legitimate business interests of the defendants and the quiet and peaceful enjoyment of the property by the plaintiff, an injunction is required regulating the use to which Firview is put in the future."

On that basis the judge decided that the injunction granted by Her Honour Judge Fisher on 26th July 1996 should be continued; but with the variation that the permitted number of dogs be increased from twenty to thirty. He relaxed the injunction in two further respects (a) to allow an additional two litters of puppies on condition that they and their dam be accommodated overnight within the house and (b) to permit Mr Anderson to have up to three dogs for the purposes of grooming and/or clipping on the premises between 9.00am and 5.00pm on any day. But, in addition to the specific restrictions as to numbers, the order of 8th January 1997 contains a general restriction against causing or permitting any nuisance arising out of the keeping or breeding of dogs at Firview or out of any activity connected with the grooming and/or clipping of dogs on those premises.

On the basis of the judge's finding that the previous nuisance had ceased at the end of May 1996 the injunction which he granted on 7th January 1997 was quia timet. It was an injunction granted, not to restrain anything that the defendants were doing (then or at the commencement of the proceedings on 20th June 1996), but to restrain something which (as the plaintiff alleged) they were threatening or intending to do. Such an injunction should not, ordinarily, be granted unless the plaintiff can show a strong probability that, unless restrained, the defendant will do something which will cause the plaintiff irreparable harm -- that is to say, harm which, if it occurs, cannot be reversed or restrained by an immediate interlocutory injunction and cannot be adequately compensated by an award for damages. There will be cases in which the court can be satisfied that, if the defendant does what he is threatening to do, there is so strong a probability of an actionable nuisance that it is proper to restrain the act in advance rather than leave the plaintiff to seek an immediate injunction once the nuisance has commenced. "Preventing justice excelleth punishing justice" -- see Graigola Merthyr Co Ltd v Swansea Corporation [1928] Ch 235 at page 242. But, short of that, the court ought not to interfere to restrain a threatened action in circumstances in which it is satisfied that it can do complete justice by appropriate orders made if and when the threat of nuisance materialises into actual nuisance (see Attorney-General v Nottingham Corporation [1904] 1 Ch 673 at page 677).

A fortiori, as it seems to me, in circumstances where the protection provided by Parliament under Part III of the Environmental Protection Act 1990 has been invoked and an Abatement Notice has been served prohibiting the recurrence of a nuisance. While I do not doubt the court's jurisdiction to intervene by way of injunction to restrain a Statutory Nuisance which is the subject of an Abatement Notice, it seems to me that that jurisdiction should be exercised with great caution -- particularly in circumstances where, on the evidence, there is no current breach of any prohibition or requirement in the Abatement Notice. Parliament has conferred on local authorities the power to decide what needs to be done in order to prevent the recurrence of a Statutory Nuisance (see section 80(1)(b) of the Act of 1990) and, as it seems to me, the courts should be slow to intervene unless satisfied by cogent evidence that those powers are not being exercised or are not proving effective.

In the present case, therefore, I am persuaded that the judge approached the question whether or not to grant a permanent injunction on the wrong basis. He should have asked himself whether there was a strong probability that, unless restrained by injunction, the defendants would act in breach of the Abatement Notice served on 22nd April 1996. That notice itself prohibited the causing of a nuisance. Further he should have asked himself whether, if the defendants did act in contravention of that notice, the damage suffered by the plaintiff would be so grave and irreparable that, notwithstanding the grant of an immediate interlocutory injunction (at that stage) to restrain further occurrence of the acts complained of, a remedy in damages would be inadequate. Had the judge approached the question on that basis, I am satisfied that he could not have reached the conclusion that the grant of a permanent injunction quia timet was appropriate in the circumstances of this case. For those reasons I would discharge the injunction which was granted on 7th January 1997.

On the basis that the judge found there was no current nuisance on 27th June 1996 -- when the district judge ordered the defendants to remove all the dogs from the premises at Firview

-- it is clear that that order was not well founded. It is clear that the basis upon which that order was made -- namely, the sensitivity of the turkey poults due to arrive on 1st July 1996

-- was wrong. At the conclusion of the hearing before him the judge was asked to make an order that the plaintiff pay damages under the cross-undertaking implied in the order of 27th June 1996. He declined to do so. It is not easy to see from the transcript why he took that view.

It is important to bear in mind that the question for consideration on an application for payment under a cross-undertaking as to damages given at the time of the grant of an interlocutory injunction is not whether the judge who granted the injunction was right or wrong to do so on the material before him. That is a question which should be tested, if at all, by appealing that order. The question for the judge after trial is whether or not, in the light of the facts which have been investigated and determined at trial, the defendant has been liable to an interim restraint which would not have been imposed upon him if those facts had been established at the date of the interim order. An interim or interlocutory order is made in the knowledge that there is a risk of injustice. The risk arises because the judge at that stage cannot investigate the facts and does not know what they will turn out to be after a trial. It is to provide protection against that risk that the party seeking the interlocutory injunction is required to give a cross-undertaking in damages; so that if, after a trial, the trial judge is satisfied that, had the true facts been known at the date of the interim injunction, that injunction would not have been granted, he can compensate the defendant for having suffered a restraint to which he should not have been made subject. The cross-undertaking in damages is the price for the grant of the interim injunction; because it is the necessary safeguard against the potential injustice inherent in granting a restraint at a time when the full facts cannot be known.

In the present case it seems to me that the judge ought to have appreciated that if the facts as he found them to be -- namely that there was no nuisance current on 27th June 1996 -- had been known to the court on that day no injunction (a fortiori, no injunction in that form) would then have been granted. Accordingly, as a matter of principle, the respondents ought to be compensated under the cross-undertaking for the cost of removing their animals for the month of July 1996.

We have been invited to take the course which was open to the judge, but which he did not take, of assessing the amount to be awarded under the cross-undertaking rather than to send the matter for an inquiry with the further expense and delay, and the further litigation between these neighbours, which would inevitably result. That is an invitation which, as it seems to me, we ought to accept.

On that basis of that invitation we assess the damages under the cross-undertaking at £2,400. We reach that figure in this way. We take the cost of housing, say, 35 adult dogs and their litters for the month of July at the amount claimed by the defendants, £4,800. But we think it right to deduct from that claim: (i) the costs which the defendants themselves would have had to bear if the dogs had remained at Firview during that month; and (ii) a discount to reflect the probability that the defendants' own contacts in the dog world would have led to a nominal or, perhaps, a reduced charge for the boarding of a substantial number of dogs over a period of as long as one month. Taking those two matters into account, we think it right to reduce the claim of £4,800 by fifty per cent to reach a figure of £2,400.

In relation to the period following the varied injunction on 26th July 1996 and until the trial in January 1997, we think that, in the circumstances of this case, no figure should be awarded as damages under the cross-undertaking. The defendants have not satisfied us that, but for the injunction, they could, lawfully, have kept more than the twenty-two dogs which they did keep at Firview during those five months without causing a nuisance. On this point the burden of proof is upon the defendants. It is for the defendants to establish that keeping more than the twenty-two dogs which they did keep would not have put them in breach of the Abatement Notice. The fact that the judge was not satisfied that it was necessary to restrict the number of dogs to less than thirty, is not material. This is an area in which certainty is impossible. The burden of satisfying the court on this point in the context of the claim under the cross-undertaking lies on the defendants. We find it impossible to take the view that that burden has been or could be discharged.

The effect, therefore, is that the amount of £2,400 to be awarded to the defendants by way of damages under the cross-undertaking is to be set off against the £3,000 to be awarded to the plaintiff as damages for the nuisance between 27th November 1995 and the end of May 1996; leaving a net award to the plaintiff of £600.

LORD JUSTICE WALLER: I agree entirely with the judgment of my Lord, and would allow the appeal in the respects he has mentioned.

LORD JUSTICE MILLETT: I also agree.

ORDER: The award of damages of £875 to be set aside and an award of damages of £3,000 to be substituted. The injunction granted on 8th January 1997 to be discharged. Enforcement of the cross-undertaking in damages, given in the order of 27th June 1996, ordered. Damages assessed at £2,400. Damages to be set off against the £3,000 previously ordered, leaving a net sum of £600 payable by the defendants to the plaintiff.

Costs order below varied to order the plaintiff to pay the defendants' costs of the interlocutory hearings. Those costs to be set off against the plaintiff's costs of the action itself. All the costs below to be taxed on scale 2. No order for costs in this court. No direction that the sum of £2,400, which the plaintiff has been ordered to pay the defendant, should be set off against costs. Legal aid taxation.