Neutral Citation Number:  EWCA Civ 988
Case No: A2/2011/2111
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRISTOL DISTRICT REGISTRY
HIS HONOUR JUDGE DENYER QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 19th July 2012
LORD JUSTICE WARD
LORD JUSTICE LONGMORE
LORD JUSTICE PATTEN
JOHN EDWARD PUSEY and
CHERRY LYNNE PUSEY Claimants/Appellants
- and -
SOMERSET COUNTY COUNCIL Defendants/Respondent
(Transcript of the Handed Down Judgment of
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Peter Harrison QC and Paul Stookes (instructed by Richard Buxton Environmental & Public Law) for the Appellants
David Wilby QC and Mark Lomas (instructed by Somerset County Council, Legal Services) for the Respondent
Hearing date : 10th May 2012
As Approved by the Court
Lord Justice Patten :
1. This is an appeal by the claimants, Mr and Mrs Pusey, against an order of His Honour Judge Denyer QC dated 14th July 2011 dismissing their claim for damages for nuisance. At the conclusion of the argument we notified the parties that the appeal would be dismissed. These are our reasons.
2. The claimants are the owners of Heathpoult Farm at Wheddon Cross in Somerset. Their property lies close to a crossroads between the B3224 and an unclassified road and its garden is bounded on two sides by those roads. On the opposite side of the unclassified road from the claimants' property and about 15 metres from the crossroads there is a strip of land adjacent to the highway which is owned by the defendant, Somerset County Council ("the Council"), in its capacity as the Highway Authority.
3. The strip is about 90 metres in length and is wide enough to park with a car or a much larger vehicle such as a lorry. It has been used as a lay-by since before the Second World War. Until about 1996 it was also used by the Council to store gravel and chippings used for road maintenance and repair but this ceased when a larger chipping landing was established at Kennisham Woods.
4. The use of the strip as a lay-by was therefore well established before the claimants purchased their property in 1990 but the evidence is that they have complained about it since at least 1993. They wrote to the Council in September 1993 and again in 1994 and 1995 to complain about overnight parking, litter, trespass and vandalism which they said was associated with the use of the strip as a lay-by. The cessation of the use of the strip as a storage place for road chippings in 1996 created the possibility that the lay-by would be closed off for all purposes and there was further correspondence between the claimants and the Council at this time about its future use. It appears that the Council needed to obtain planning permission to remove an earlier planning condition which required the site to be restored as a verge once the chippings storage ceased. The claimants wrote on 29th July 1996 complaining that its continued use as a lay-by had "encouraged litter, fly-tipping, overnight parking and an increasing number of people using the site openly as a toilet".
5. The debate was not, however, one-sided. The possibility of closing the strip as a lay-by and grassing it over caused considerable opposition from local residents who wanted the lay-by to be maintained. When in 2000 the Council was considering re-locating the lay-by to another nearby site local residents again complained that the existing lay-by had been used without any accidents or other problems until the claimants bought and moved to the farm. The re-location was objected to by a number of individual residents and was opposed by both local parish councils. There were also complaints that Mr and Mrs Pusey had attempted to prevent people from using the lay-by. In the end the proposal to re-locate the lay-by was abandoned.
6. The current proceedings were commenced in May 2010. The claimants sought an injunction and damages in respect of what they allege constitutes an actionable private nuisance which the Council as Highway Authority and therefore the owner of the land has caused or permitted. The use of the strip which is said to constitute the nuisance is particularised in paragraph 7 of the particulars of claim as:
"(i) noise and vibrations caused by vehicles on the strip;
(ii) emission of fumes from vehicles on the strip;
(iii) lewd and abusive and threatening and/or indecent and obnoxious and anti-social behaviour by users of the strip of land;
(iv) noise with impulse and impact sound energy content (sudden bangs and clangs and the sounding of motor vehicle horns);
(v) a range of multiple tones and mid frequency sounds that are highly irritating, e.g. screeches associated with handbrake turns and other driving manoeuvres; and
(vi) varied whirring and whining sounds, which continue for long periods from heavy goods vehicles using the strip and adjoining highway for parking and stationary running of engines."
7. This conduct is said to have materially interfered with the claimants' reasonable use and enjoyment of their property which is a necessary condition in order for the claim to succeed. In its defence the Council specifically denied the allegations of nuisance particularised above and averred that the only activity that has taken place on the strip has been ancillary to the lawful use of the highway. But it also took a wider and more fundamental point. Whilst accepting that the freehold title to the strip is vested in it as highway authority under s.263 of the Highways Act 1980, it contends that it has a statutory duty to assert and protect the lawful use of the highway pursuant to s.130 of the 1980 Act. The right of members of the public to use the highway is not limited to passing and re-passing over it. It includes the right to stop and park: see Rodgers v Ministry of Transport  1 All ER 634. Activities which constitute the lawful use of the highway (e.g. vehicle noise from lorries parking and re-starting their engines) cannot therefore amount to an actionable nuisance even if audible to the claimants.
8. Nor it says is the highway authority the occupier of the land for the purposes of establishing liability for a private nuisance. The Council's case is that it is not responsible for any improper or criminal use of the highway by members of the public. These are matters for the police. The Council is criticised in the particulars of claim for failing to close the strip and an injunction is sought. But the Council has no statutory power to close part of the highway. This would require the making of a closure order by the Magistrates' Court under s.116 of the Highways Act on an application by the Council as highway authority to which interested parties would have a right to respond. Closure would not therefore be a foregone conclusion and could only be ordered if the Magistrates' Court concluded that the part of the highway in question was unnecessary or that diversion would be more commodious to the public.
9. These arguments, which amount to saying that a claim that a highway authority has failed properly to exercise its powers in relation to a lay-by is not justiciable in private law proceedings, raise important issues of general public interest. But they do not arise in this case if the claimants are unable to establish that there was a real interference with their reasonable enjoyment of their property. The judge in this case, after a careful treatment of the evidence, decided that no actionable nuisance had been proved. He summarised his conclusions in paragraph 14 of his judgment as follows:
"Viewed objectively the complaints of the claimants are extremely exaggerated. The evidence does not suggest excessive use of this lay-by. The evidence does not suggest excessive noise emanating from the lay-by. The evidence does not suggest excessive fumes coming from the lay-by. No doubt having people stop at the lay-by to relieve themselves can be upsetting but as is apparent from the analysis of the diaries these incidents when put in context of a 365 day year and a 24 hour day cannot be regarded as excessive. On the facts therefore I am not satisfied that activities on the lay-by can or do amount to an unreasonable interference with the claimants' use and enjoyment of their own land. "
10. We therefore decided to hear argument on this factual issue before becoming involved in the more extensive legal arguments raised by the Council's defence.
11. The claimants' evidence was contained in a witness statement by Mr Pusey, the contents of which were confirmed by Mrs Pusey in a short witness statement of her own. Mr Pusey explained in his statement that when they purchased the farm they were led to believe that the lay-by would be closed once a new site could be found for the storage of the road chippings. The lay-by, he says, attracts all classes and a large number of vehicles throughout the day and night. Many are driven by council employees and contractors who still use the strip to park even though it is no longer used for storage purposes. Vehicles are often left with the engine running, with lights flashing and with loud music being played. There is frequent anti-social conduct such as drivers urinating in the lay-by or shouting and swearing. On occasions this is directed towards the claimants when they are outside in their garden.
12. Mr Pusey also complained of occasions when he and his wife were assaulted after remonstrating with a council employee who was urinating in view of their front gate. His wife was apparently threatened with a gun in 2003 after they went to investigate a pick-up truck parked on the site with its engine running. These incidents were reported to the Council and to the police and action has been taken. More generally, the strip is alleged to have become a staging area for petty theft and vandalism affecting the claimants' property which have been reported to the police but have not resulted in any positive action.
13. Mr Pusey says that the incidents complained of have interfered with their home life to such an extent that they are unable to relax and have become uncomfortable in their home and garden. Even apart from specific incidents of the kind I have described, there is regular disturbance by vehicles with their engines left running which generate noise and exhaust fumes which permeate their garden.
14. To make these allegations good the claimants, on advice, kept a log of events and also installed CCTV and a cam recorder to photograph what occurred. As part of his evidence Mr Pusey produced extracts from the log as well as a compilation DVD covering the period from 12th - 16th March 2007 which he played to the judge. He also gave more detailed oral evidence about the use of the lay-by. The judge also heard evidence from a number of witnesses called by the Council who included local residents. They spoke of occasions when they had parked in the lay-by only to be confronted by Mr and Mrs Pusey who demanded that they should leave.
15. The judge summarised the evidence from the DVD in his judgment. He noted that there were occasions when noisy lorries did park in the lay-by and their drivers urinated there. But the shouting and abuse from those individuals towards the claimants often followed objections from the claimants to their using the lay-by. On other occasions incidents of urination and defecation occurred but were obscured from view by the driver's vehicle. The claimants prepared a précis of the diary log which covered the period from July 2005 to September 2010. The judge summarised its contents as follows:
"For 2005 there were 29 instances of urinating and 7 instances of swearing. Only 9 vehicles are shown to be occupying the site between 6 and 7 in the morning and 11 o'clock and midnight and only 3 vehicles on the site between midnight and 6 o'clock in the morning. The police were called on 2 occasions and there was fly-tipping on 3 occasions.
For 2006 there were 57 instances of urinating, 6 instances of swearing, there were 10 vehicles present between 6 o'clock and 7 in the morning and 11 o'clock and midnight and 6 vehicles between midnight and 6am. The police were apparently called or complained to on some 9 occasions.
For 2007 there were 44 instances of urination, 1 of swearing, 7 vehicles present between 6 and 7 in the morning and 11pm and midnight and 1 vehicle present between midnight and 6am. The police were apparently called or alerted on 27 occasions.
For 2008 there were 91 instances of urination, 14 instances of swearing, 32 vehicles present between 6 and 7 in the morning and 11pm and midnight and 5 vehicles between midnight and 6am. The police were called on some 12 occasions.
For 2009 there were 171 instances of urinating, 14 of swearing and some 78 vehicles present between 6 and 7 in the morning and 11pm and midnight with 4 vehicles present between midnight and 6am. There were 5 complaints to the police and 31 complaints to Somerset County Court.
For the period between January 2010 and September 2010 there were 142 instances of urinating, 6 instances of swearing, 49 vehicles present between 6am and 7am and 11pm and midnight and 2 vehicles between midnight and 6am. The police were called on 11 occasions and apparently complaints were made to Somerset County Court on 17 occasions."
16. He set out his conclusions on this evidence as follows:
"It is important to stand back and look dispassionately at the foregoing evidence. The reality is that there are 365 days in the year and 24 hours in the day. Set against that background it cannot be said that the usage of this lay-by was particularly great. Even in the case of people stopping and using the lay-by to urinate it does not work out even in the worst years at much more than once every 2 days or thereabouts. Any such stop will inevitably be of short duration. No doubt on many occasions people went behind their cars. In spite of what the claimants say I am quite satisfied that visibility from their property is somewhat limited particularly in Spring, Summer and Autumn when their hedges are in full bloom. I accept that there is a partial view from the driveway but the reality of the situation is that for many of these instances the claimants have to make a special trip to the bottom of their driveway in order to actually see what is going on. I regret to say that this is to some extent an indication of the obsession which they have developed with the use of the lay-by. Likewise the lorry use which is shown in the video and DVD and which is referred to in the diaries is not in my view excessive. The numbers involved are comparatively small. Much of the time the lorries are not in the lay-by for any significant period. As we shall see when we look at the evidence of the claimants' expert the noise, although intrusive is not in fact in my judgment excessive. "
17. In support of their case the claimants instructed an environmental consultant, Mr Daniel Baker, who prepared a report dated 14th November 2010 and gave evidence at the trial. Part of his report was based on decibel readings taken from monitoring equipment which he placed in the claimants' garden. He made the point in his report that in a rural area intermittent noise from vehicles or the other activities complained of would have a much greater impact on the listener than, for example, regular low level noise from passing traffic. Mr Baker monitored the site for 17 days between 28th August and 14th September 2010. During this period some 105 vehicles used the strip (less than 7 a day) of which 69 were cars, 23 vans and 14 heavier goods vehicles. Most of the visits lasted no more than 5 minutes. One third of the vehicles did a three-point turn. In the case of 30 vehicles, at least one door was opened. But in the case of 47 vehicles, there was no activity at all. One lorry emitted diesel fumes but the exhaust fumes from other vehicles were not detectable.
18. Mr Baker also set out his noise readings. The judge summarised them as follows:
"At paragraphs 8.2, 8.3 and 8.5 he deals with noise levels at the premises. With great respect to him I do not find these to be of great help and to some extent they are misleading. In paragraph 8.4 he deals with daytime measurements. He has a reading of 41 decibels as the measured source noise at the dwelling. It should be noted that this reading came from 1 minutes worth of activity shortly before 3:30 in the afternoon on the 10 September 2010 when a substantial lorry was at the site. He records the background noise level as 30 decibels - it is apparent from the footnote that this was the lowest background daytime noise recorded during the monitoring period. In fact as is clear from paragraph 5.3 of his report the typical levels of background daytime noise are 39 decibels. It follows therefore that the difference between the measured noise level and the background noise level set out in paragraph 8.4 is in fact misleading and the difference between the maximum and the background is significantly less than therein set out. The night time measurements are even more misleading. These are set out at paragraph 8.5. The measured source of noise at the dwelling is shown as 51 decibels. However this figure as is apparent from the footnote relates to a daytime measurement of 1 minute on 10 September and not a night time measurement. It is apparent that no night time noise measurement approaching 51 decibels was in fact recorded during his surveillance of the site."
19. The question whether the use of the defendant's land amounts to an actionable nuisance is one of fact and degree in every case. There must be a real interference with the comfort or convenience of living according to the standards of the average person. Abnormal sensitivity to noise or the other matters complained of is not therefore sufficient to found a cause of action. The court has to make an assessment of the degree of interference taking all relevant circumstances into account including the character of the neighbourhood, the duration of the interference and its frequency.
20. Mr Harrison QC for the claimants also stresses two important principles which were recently affirmed by this court in Barr v Biffa Waste Services Limited  EWCA Civ 312. The first is that it is no defence to a claim for an otherwise actionable nuisance that the use complained of pre-dated the claimants' ownership of their own property: see St Helen's Smelting Company v Tipping (1865) 11 HL Cas 642. But this principle is, of course, qualified by the need to take into account the existing character of the neighbourhood when assessing whether the defendant's use of its land has caused a real interference with the use and enjoyment of the claimants' property. The second principle is that, absent an actual statutory authority to commit the nuisance, there is no wider public interest defence available: see Miller v Jackson  QB 966.
21. Mr Harrison began his submissions by referring us to the 1996 Department of Transport guidance on the siting of lay-bys. This recommends avoiding areas close to housing which can cause noise and visual intrusion and general nuisance. There is, he submits, no dispute that the incidents complained of did occur in the lay-by whatever their frequency and the Council's apparent willingness in 2000 to consider its re-location was an acknowledgement that problems existed. The plan was abandoned in the face of local opposition but that is not sufficient in itself to justify the continuation of what is otherwise a nuisance. Mr Harrison accepts, as he must, that normal traffic noise and parking is not actionable. The claimants' property is adjacent to two roads and they have to accept the ordinary levels of disturbance which the traffic generates. The same must, I think, go for the use of the strip. A lay-by is not ipso facto a nuisance if its use is confined to the ordinary activities of parking. The shutting of doors and the sound of ordinary conversation fall within this category.
22. What, Mr Harrison says, makes this case different is the volume and frequency of the use and, in particular, its associated activities. The judge, he submits, made three critical errors which taint his findings that there was no unreasonable interference with the use and enjoyment of the claimants' property:
(1) he was influenced by the issue of public benefit;
(2) he set a threshold rather than looking at the actual degree of interference; and
(3) he considered each element of the alleged nuisance separately rather than taking into account the cumulative effect on the claimants of the activities complained of.
23. The claimants accept that the judge did not expressly base his dismissal of the claim on the local need to retain the lay-by. Paragraph 14 of his judgment (quoted above) is limited in terms to the judge's assessment of the degree of interference and its impact on the claimants. But Mr Harrison says that the judge was obviously influenced by the local support for the continuation of the lay-by and, whilst not carrying out any formal and express balancing of interests, he appears to have conducted such an exercise in his own mind.
24. This is indicated by the fact that he refers to the level of support for the lay-by back in 2000 and that most of the local residents called as witnesses by the Council stressed the need for the lay-by and their opposition to its closure. This is said to have affected their own objectivity about what happened at the strip and the judge's own assessment of those facts.
25. I am not convinced about this. The judge was right to have mentioned the local support for the lay-by as part of the history because it is relevant, inter alia, to a consideration of subsequent events when the claimants challenged the use of the strip by members of the public and on some occasions were met with an extreme response. But this is the judgment of an experienced judge who was well able to dissociate the merits of the lay-by from an objective consideration of what actually occurred on site. There is no suggestion in paragraph 14 that he took into account the balance of public interest and we should take his judgment at face value.
Setting a threshold
26. A threshold is a useful tool for the purpose of regulating a potentially intrusive activity which should be allowed to continue in the future but subject to restrictions on its frequency and duration. In this way its impact on the claimants can be limited and local residents who are most directly affected by an intermittent but noisy activity such as power-boat or motor racing can regulate their lives accordingly: see Kennaway v Thompson  EWCA Civ 1.
27. But, as Carnwath LJ emphasised in Barr v Biffa (supra), these were all cases in which the setting of maximum noise levels and a limited number of race days could make life tolerable for the claimants. Thresholds are not a legitimate means of establishing whether the degree of interference which the claimant has experienced amounts to an actionable nuisance. This is a matter of evaluating the effect of the particular incidents complained of. There is no suggestion in this case that the use of the lay-by could be regulated in this way.
28. But whilst I accept Mr Harrison's submission that the application of a threshold test would be inappropriate, I do not accept that the judge applied one in this case. His summary of the frequency of the parking, swearing, urination and the other incidents complained of was undertaken in order to assess the overall level of activity and its effect upon the reasonable enjoyment of the claimants' property. The claimants' case was that they had suffered an all but permanent disruption of their private lives and the judge was doing no more than to test this allegation against the evidence which he heard.
29. I agree that it would have been wrong for him to have drawn a line on a purely statistical basis without considering the actual effect which the proven incidents had upon the claimants. But that is not what he did. Having determined the frequency and duration of what occurred, he then proceeded to assess its overall impact on the claimants. His references in paragraph 14 to the use of the lay-by and the levels of noise not being excessive are both quantative and qualitative.
30. The claimants' argument about thresholds leads into what is their most important point which is that the judge was misled by his analysis of the frequency and duration of the individual incidents into assessing their effect in isolation from each other rather than by considering the cumulative effect of what occurred.
31. There are points to be made either way on this. As the decision in Barr v Biffa illustrates, one can have a situation where the source of the alleged nuisance is an operation which continues over a prolonged period during which some level of interference will be experienced. The claimants in Barr v Biffa rarely, if ever, were free of all odorous emissions. But they were only entitled to recover damages for the occasions or periods when the odour levels from the waste tip became unreasonable in the sense that it was unreasonable for the claimants to be expected to tolerate them. In all such cases there is the potential for overlap between the effect of the worst periods of interference and the cumulative effect of lesser incidents. But the court has to approach its task in an objective manner and decide whether there have been occasions when the average resident in the place of the claimants would have been adversely and unreasonably affected by what was happening on his neighbour's land. For this purpose, everything has to be taken into account but any particular sensitivities of the actual claimants are excluded.
32. The judge took into account the evidence that the incidents complained of had continued over many years but, as he noted, most of the incidents relied on (e.g. urination and swearing) were relatively infrequent in the context of any given year and would, for the most part, have remained invisible (in the case of the incidents of urination) had the claimants not been in the practice of investigating almost any use made of the lay-by. Although there were undoubtedly occasions when lorries left their engines running or cars made noisy three-point turns, these incidents were, on the judge's findings, relatively isolated and at a noise level which, when looked at overall, did not make the disturbance caused by the use of the lay-by an actionable nuisance. The judge, I think, did make an overall assessment of the situation and reached a conclusion with which we cannot properly interfere.
33. It is not therefore necessary for us to consider Mr Wilby QC's alternative arguments that the lawful use of the lay-by (including, he says, the use of it by motorists who wish to relieve themselves) cannot, as a matter of law, amount to a private nuisance. On the facts as assessed by the judge, the claim fails.
34. I would therefore dismiss this appeal.
Lord Justice Longmore :
35. I agree.
Lord Justice Ward :
36. I also agree