East Lindsey District Council v Bontoft & Ors

Transcript date:

Friday, April 3, 2009



Court of Appeal

Judgement type:



Hughes LJ

Transcript file:

Case No: A2/2008/3022
Neutral Citation Number: [2009] EWCA Civ 603

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 3rd April 2009



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Mr D Elvin QC (instructed by Messrs Browne Jacobson LLP) appeared on behalf of the Appellant.


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(As Approved)

Crown Copyright© 
Lord Justice Hughes:

1. The defendant council was held liable by the Deputy Judge below in nuisance. The gist of the action was noise and vibration associated with the council's refuse collection vehicles when entering or leaving the recently established depot on a long disused airfield in a small Lincolnshire village. The council seeks leave to appeal the finding of liability. The airfield had been closed as an RAF base over 30 years ago in 1974. The claimants lived near to the entrance/exit road off the old airfield where it debouches onto a village street. The complaint was chiefly directed at the noise and vibration occasioned when a group, frequently so far as one can tell a convoy, of something over 20 refuse collection vehicles leaves the airfield via that entrance/exit road at around seven o'clock in the morning. There were also complaints about the afternoon returns, which were significantly more staggered, and also about extra traffic associated with the arrival sometimes before 7 o'clock in the morning of the staff who were going to man the refuse collection vehicles. The judge's finding, however, was squarely based on the morning departure group. The other movements, he held, would not by themselves have amounted to nuisance.

2. There was ample evidence, supported by undisputed expert measurements made on both sides of the case, that over a period of about 10 minutes or so at the time of departure of the group in the morning noise levels were substantially above a number of generally-recognised guidelines. Specifically, during that period the noise generated by the convoy was in very broad terms around one and a half times a generally accepted level for the noise inside a bedroom at night. That is a very rough figure, because not all the measurements were taken inside rooms. Some of them were taken outside. That all happened at a time when the claimants would normally be asleep, and the judge had in addition, of course, to the expert measurements the evidence of the claimants that their sleep was regularly disturbed. There was also evidence in the form of a report made to the defendants at an earlier stage that the noise levels were sufficient to constitute public nuisance according to accepted criteria, had the operators been private rather than associated with the public service. The evidence demonstrated that this remained the position despite real and responsible efforts made by the defendants to reduce the noise levels. They had, for example, adjusted the route taken by the vehicles inside the park, and they altered the departure time from 6.30 to 7.00 in the morning, and they had stationed a banksman at the junction to see the lorries out onto the road.

3. The challenge mounted by Mr Elvin QC is founded on two related complaints. The background to them is of course that it is trite law that, in deciding whether or not a particular activity constitutes a nuisance, regard must be had to the character of the area. Says Mr Elvin, the Judge, whilst accepting the importance of assessing the character of the neighbourhood, simply did not sufficiently address two factors. First, evidence of implemented planning consents given for a number of activities in and around the old airfield; and secondly, evidence of traffic movements generally in and around the airfield and along the village street in question, the product in part of what was these days happening on the old airfield. The result of that, contends Mr Elvin, is that the judge erred in not finding that the character of the area had changed from a basically rural village by the development bit by bit of a light industrial estate/business park on the old airfield. It follows, says Mr Elvin, that the judge has found the effect of the departing convoy of refuse collecting vehicles was a nuisance, when he would not have done if he had had proper regard to the state of the traffic generally and to the change of character of the neighbourhood.

4. The judge's judgment is, in many respects, detailed and careful. It is right to say that he did not subject either the planning history or the law upon the relationship of planning history to private nuisance to anything resembling the close analysis which Mr Elvin has helpfully set out to me in a substantial skeleton argument. That analysis shows as the history that the airfield had been recognised as appropriate to light industry for many years in the various area plans, and that successive applications for such use have been granted. The current users of parts of the old airfield, in accordance with planning consent granted, include the defendant council's own offices, two depots of this council and the county council; a warehouse with ancillary retail elements; and a school and leisure facilities.

5. The local plan for the village of Manby and its associated nearby sister village, Grimoldby, makes clear that the old airfield has scope for development as a business park for uses such as high technology or high profile businesses, as well as light industrial manufacturing and office uses. It also envisaged, as the judge recorded, that such development should be planned so as to respect the character of the village and the amenities of local residents. These are in fact two Lincolnshire villages with a combined population of about 1,600. The various consents which have been granted are consistent with those planning objectives. Planning is, as Mr Elvin rightly points out, these days plan led. Among the last of the consents granted is that granted to the defendant council, in effect by itself wearing its different hat as the planning authority, for the use of the current building as a new depot for the refuse collection vehicles. That occurred in 2005, when the council decided to stop having its rubbish collected by contractors and to take on the service itself in house. Previous contractors had also operated from this same old airfield park but they had been in a different area of it, and they used an access road which did not come out on the village street but rather on a B-road some distance away.

6. The judge had to deal with rival arguments about the absence of objection to this change, on which there was something to be said on each side. It is not necessary to recite the argument. There had in fact been no objection, although it was right to say that the applications for consent had not drawn attention to the change of access road which would be entailed. It may not have had to, but it did not in fact do so.

7. As to the law in relation to the effect of planning consents granted, it is legitimate to say that the judge's treatment of it was laconic. He summarised the position in these terms (paragraph 111): 
"The character of the neighbourhood is highly relevant. Planning permission covering an activity may be relevant but is not conclusive"

No doubt he might well have gone into much greater detail. He might have said just a little more expansively roughly as follows. A planning authority cannot by the grant of consent authorise a nuisance (see Allen v Gulf Oil Refining [1980] QB 156); however, its grant or grants of planning permissions may change the character of a neighbourhood so as to render what would otherwise have been a nuisance no longer such (see Gillingham BC v Medway Dock Company [1993] QB 343); and strategic planning decisions are more likely to have that effect than individual consents, but it is a question of fact in each case (see Gillingham, Wheeler v JJ Saunders [1996] Ch 19, and Hunter & Ors v Canary Wharf Ltd in both Court of Appeal and the House of Lords [1997] AC 655).

8. The judge might have said all that, but none of it was in dispute. He is not obliged to embark upon a lecture in law if the point is neither in dispute nor necessary to explain his decision. His laconic signal sentence was, as it seems to me, accurate; and given the way the case had been argued, it was all that he needed to say. The issues of law before the judge were in fact quite different. They included whether the use of the highway was in law capable of constituting a nuisance, and whether if the current activity could not be public nuisance because exempted by section 6A of the abovementioned Protection Act, it followed that it could not be private nuisance either. Accordingly the judge is not, as it seems to me, to be criticised for not dealing more expansively with the Allen v Gulf Oil line of cases. The important question in this case was whether the alleged nuisance was, in the context of the neighbourhood as it is now, an unreasonable use of the land or not. In particular, it was whether given the traffic inherent in the use of the old airfield as a light industrial estate/business park, the convoy of refuse collection vehicles leaving in the morning was nothing more than consistent with the prevailing character of the neighbourhood. That is the question in the case, and it is plain that the judge accepted that that was the focus of his study. The basis of his decision was that there was created by the refuse collection vehicles when leaving in the morning what might be called a spike, but what is perhaps better described as a brief plateau of noise over a period of about 10 minutes well above what was to be expected to be endured.

9. Mr Elvin has helpfully taken me to some of the figures for noise measurement which were, as I think I have said, undisputed as to their measurements before the judge. He rightly demonstrates that the kind of noise levels measured in terms of what is known in the trade as LA Max can be shown to have been achieved not only by the refuse collection vehicles over the roughly 10-minute period but also at similar hours in the morning by other passing traffic. Said Mr Elvin, if the judge had properly analysed the successive grants of planning consents and associated them with the evidence of noise levels created by other traffic on the road apart from the refuse collection vehicles, he could not have come to the conclusion that he did. The judge, however, was not looking at individual peaks of the noise levels. He was looking at the position overall. He directed himself as to other traffic as follows. He said at paragraph 138: 
"I accept that there is light industry in Mamby Park, but I have heard no evidence that such creates noise beyond the occasional heavy goods vehicle arriving or departing sometimes early in the day. There is no mass movement of noisy vehicles."

That is to be read alongside his earlier summary of the evidence of the experts, which included a summary of the evidence of Mr Stigwood whose evidence the judge accepted and preferred where it differed from that of the other expert. At paragraph 89, the judge recorded Mr Stigwood's conclusion in part as this: 
"Other passing vehicles did cause noise levels to rise to similar levels to those produced by the exiting refuse vehicles. However, that was only very briefly. The high levels of noise were not sustained for more than a second or two and - concluded the expert - ‘their rise and fall in level render them benign'."

The judge went on to refer to print outs of such noise levels.

10. It is plain from the judge's judgment that the judge accepted that evidence. He did not, it follows, neglect to pay attention to the fact that other vehicles might briefly create a noise level measurable as the same as that of the refuse collection vehicles. What he decided was that the relatively sustained high noise level, over albeit a short period but at a time when the claimants might be expected to be asleep, passed the threshold of private nuisance. That, as it seems to me, is a conclusion to which he was entitled to come. Whether every judge would have done is not the question in these proceedings. That there was an objectionable spike or peak over a relatively sustained period was demonstrated by the figures and supported by the evidence of the claimants, and for that matter supported by the report provided to the defendants by their own environmental team leader at an early stage in the proceedings. The judge's rejection of the complaint based upon traffic movement at the stages of return in the afternoon and the staff arrivals in the morning supports, as it seems to me, what is the clear inference to be drawn from the judgment, that he was indeed taking into account the fact that the old airfield was these days a light industrial estate/business park.

11. I therefore come to the conclusion that Mr Elvin's penetrating analysis does not arguably touch the essential findings which the judge made, and that those were findings that he was entitled to make, because he did address the character of the neighbourhood as it now was; the product, as it happens, of successive planning consents.

12. For those reasons, despite Mr Elvin's persuasive advocacy, I am afraid this application must be refused.

Order: Application refused.