Bontoft & others v East Lindsey District Council

Transcript date:

Friday, November 14, 2008

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

John Leighton-Williams QC sitting as a Deputy High Court Judge

Transcript file:

This judgement will be handed down at 10.30 am on Friday 14th November 2008. It is for the information of counsel and their solicitors only so that they may make any necessary calculations and consider any appropriate applications in advance of the hearing. Its contents must not be disclosed to anyone else including the lay clients before 10 am on 14th November 2008.

IN THE HIGH COURT OF JUSTICE CLAIM NO HQ07X03813

BETWEEN :

(1) WILLIAM BONTOFT
(2) VICTOR LAMB
(3) SONIA TAYLOR
Claimants
and

EAST LINDSEY DISTRICT COUNCIL
Defendants

 

JUDGMENT

1. The Claimants seek an injunction restraining the Defendants from continuing an alleged nuisance caused by noise and vibration from vehicles, especially refuse collection vehicles (RCVs) entering and/or leaving Manby Park, a business park off Carlton Road, Manby in Lincolnshire. In addition they seek damages for past nuisance. As an alternative to an injunction they seek damages for continuing nuisance.

The Locality

2. Manby is a small village situated inland about half way between Skegness and Grimsby and 3 miles east of Louth. Together with its immediate neighbour, Grimoldby, it has a population of about 1600. The two share a parish council and various facilities but remain separate villages. Manby serves in part as a dormitory for Louth. It is a typical Lincolnshire flat-country village comprising a main street, Carlton Road, which runs broadly north-south, with a few streets leading off it, in the present case mostly on the eastern side. On the western side of Carlton Road is Manby Park, which occupies part of what was RAF Manby, a military base which closed in 1974.

3. Since the closure, Manby Park, has been developed mainly for light industrial and business use. Local plans variously envisaged development of the park for inter alia technology businesses and light industrial use and expressed concern that the development should not harm the character of the villages and the amenities of the local residents. The Defendants now have their headquarters there and have used it as a base for various services they provide, including since 1996, refuse collection.

The Claimants

4. Until very recently all 3 claimants lived in Carlton Road. Mr Bontoft still lives there at The Bungalow, which is located about 85 metres south of the Manby Park Carlton Road exit. Mr Lamb used to live at Tudor Lodge which is almost opposite the exit. Mrs Taylor, who is Mr and Mrs Lamb's daughter, used to live at The Sycamores which is about 170 metres north of the exit. Both Mr Bontoft's and Mr Lamb‘s properties are on the eastern side of Carlton Road whereas Mrs Taylor's is on the western side. The location of their respective houses is shown on the maps at Vol 1.1 and 1.2.

5. Five or so weeks ago Mr and Mrs Lamb moved into a house they have recently had built on Skye. Mrs Taylor and her husband have moved there with them and all four intend to make it their home. Mrs Taylor suffers from multiple sclerosis. For many years she has been cared for by Mrs Lamb. Her condition has been deteriorating to the extent that her husband has now ceased work to care for her. Mr and Mrs Lamb had always intended to move from Manby but Mr Lamb said that his daughter's deterioration against the background of the problems the subject of the present claim has accelerated that process. Mr Bontoft has every intention of staying at The Bungalow until the end of his days. Neither Mr Lamb nor his daughter had mentioned the prospect of their move to Skye in their witness statements : it emerged when Mr Lamb was giving evidence.

The collection of refuse in East Lindsey

6. The Defendants area covers some 700 square miles. I was told that there were 96,200 households whose refuse had to be collected. For some time prior to 2006 the Defendants had contracted refuse collection to Serviceteam, who first used premises in Cinders Lane, Louth, and then moved to Manby Park using what had been the Lincolnshire County Council depot (the "LCC depot") within the Park as a depot for their RCVs.

7. Some time prior to 2006 the Defendants decided to take refuse collection in-house. This decision coincided with the introduction of a new 3 bin collection system for ordinary refuse, green waste and recyclables. The 3 different types of refuse are collected separately. Each household is scheduled to receive 3 visits per fortnight, one type of refuse being collected on each occasion.

8. The Defendants' decision to take refuse collection in-house was linked with a decision to move their RCV depot from the LCC depot to their Meteor House depot, also within the Park, which had previously housed their house maintenance department. In 2005 the Defendants, who already had a licence to operate 15 heavy goods vehicles out of the Meteor House depot applied for planning permission to use the depot as an RCV depot. The application received the support of the local parish council and no objections were received. Planning permission was granted by the Defendants, wearing, of course, a different hat. Although when proceedings were commenced the Claimants asserted that the grant of permission was unlawful, that contention has not been pursued before me. Notices advertising the application for planning permission made no reference to which exit from the Park would be used by the RCVs.

9. Following the grant of permission the Defendants contracted for the hire of new RCVs and kept them at the depot at Meteor House. As may be seen from the plans in the papers, Meteor House is at the southern end whereas the LCC depot which fronts on to the B1200 is at the northern end of the Park. The Defendants envisaged that RCVs leaving the Meteor House depot would leave the Park by the Carlton Road exit.

10. When Serviceteam had the contract and were based at the old LCC depot they operated about 15 RCVs. Their vehicles left to start their days' work at 6.30 am by the Middlegate exit which led directly on to the B1200. The presence of their RCVs in the Park and their departure was therefore of little, if any, consequence to the villagers of Manby living on Carlton Road on in any of the streets leading off it. Although Spinney Close, a strip of houses at 90 degrees to the B1200 was opposite that exit I have heard no suggestion that the departure of RCVs from that depot on to the B1200 gave rise to any complaint.

11. For some years prior to 2006, in addition to the Serviceteam vehicles, 2 hook-up vehicles used to leave the Park at 4.30 am and 2 RCVs used to leave the Park on green waste collection duties at 6.30am all by the Carlton Road exit. The departure of the hook-up vehicles carrying market stalls gave rise to a complaint about noise by Mr Lamb in 2004 : this was dealt with successfully by insulating the stalls in rubber and/ or attending to the road surface. Otherwise the departure of these vehicles was never the subject of complaint.

The events of 3rd April and the ensuing days

12. On 1st April 2006 the new refuse collection system formally came into being operating out of the Meteor House depot. At 6.30 am on Monday 3rd April for the first time about 22 RCVs left Manby Park via the Carlton Road exit, one after the other. Councillor Edgington wrote in the Village News, a local quarterly publication, recording that the operation had been a success and likened the experience to the invasion of Kuwait. But for the Claimants, and others living nearby, the experience was rather one of being invaded.

13. Mr Lamb, now aged 63, a local businessman who also still works as a helicopter pilot and who lived nearest to the exit, reacted instantly. In his witness statement he said he was unaware of the operation until 6.30am that day. He continued :

" I recall the whole thing as surreal ; absolutely unbelievable. It startled us and we wondered what was going on as we saw a procession of large lorries passing right outside our door. I thought it could be some promotional thing. Then it dawned on me that this was the Council's refuse collection department leaving the depot. We had not received any prior information about the matter and had not been pre-warned. It was completely out of the blue..."

14. That morning he went to the Defendants' offices to complain. He was furious and accepts he did not mince his words. He said in evidence "Anger has a place in life and this was the place for it". He said he was told the Council had complied with everything. The Defendants' immediate response was to write to him stating his conduct would not be tolerated. He then met the Defendants' Director of Community Services, Paul Robinson, where there appears to have been a wide ranging conversation during which Mr Lamb was noted by the Defendants as stating inter alia that the noise started with the arrival of staff in vehicles at 5.40 am, that he could not open his windows because of the noise and that at Sleaford someone had taken out an injunction to prevent lorries being started before 7.30 am.

15. Mr Bontoft is now aged 71. He is a retired agricultural engineer who had been a foreman in charge of a depot handling agricultural machinery. He is not in the best of health having had, he said, 2 heart attacks. He too was first aware of what he described in his witness statement as "noise nuisance" on the first day. He said "It was a shocking noise and sight with 27 lorries moving in the road". In oral evidence he accepted that there may in fact have been only 22 lorries.

16. Mrs Taylor, who is Mr Lamb's daughter, whose witness statement was read stated :

" I was unaware of the nuisance problems until the morning that they started. I couldn't believe the noise. It was such a shock to see a long line of refuse lorries driving past my home. I immediately phoned mum and dad and said did you see and hear that. I could not believe my eyes..."

17. Mrs Burney-Jones, who is 92 years old, lives alone almost opposite and just to the south of the exit. At the time she was deaf but I was told she has since acquired a hearing aid and can now hear. She said in her written statement :

" I was first aware of the problem when it started up. The noise and vibration caused by the lorries was awful."

18. On 8th April 2006 Mr Bontoft wrote to the Defendants complaining about "the way we are being woken up at soon after six o'clock in the morning". He asked why the old access ie the Middlegate access to the B1200 could not be used. He received no reply and wrote again on 23rd May 2006 enclosing a copy of his earlier letter, stating he understood permission had been given for even more HGVs and stating the value of his property was greatly reduced. Again he suggested the old exit should be used. On 8th April he also wrote a letter on similar lines to Village News.

The history thereafter

19. The Defendants have not suggested that prior to 3rd April 2006 the general public was told that RCVs would thereafter be exiting via the Carlton Road exit at 6.30 am. The Defendants' environment department had not identified any potential problem. No noise assessment had been carried out. Whilst the Parish Council had stated on a proforma reply that they supported the change of use for Meteor House depot there is no evidence that any parish councillor had in mind that thereafter RCVs would be exiting into Carlton Road. Whilst villagers were aware that construction works were going on at the Meteor House depot they were never informed and never consulted about RCVs using the Carlton Road exit. They had no reason to think that the old Middlegate exit to the B1200 would not continue to be used.

20. It is surprising, to say the least, that no member of the Defendants' staff considered the impact that 22 RCVs leaving the premises would have. The Defendants' expert, Mr Jarman observed that World Health Organisation guidelines stated an environmental noise impact analysis "should be required before implementing any project that would significantly increase the level of environmental noise in a community (typically greater than a 5dB increase)". The Claimants' expert, Mr Stigwood said it was normal for a council to require such an assessment when other developers proposed such a measure. I have heard no evidence to suggest the matter was ever considered by anyone. Mr Jarman opined "there was a collective lack of foresight".

21. There followed a number of attempts to encourage the Defendants to change their operation, spearheaded, it appears to me, by Mr Lamb and to a lesser extent by Mr Bontoft. At the same time the continued exiting of the RCVs became something of a running sore which infected other activities associated with the operation. It had immediately been apparent that an early start meant early arrival of RCV staff with extra noise caused by their vehicles. Mr Lamb made many complaints about such vehicles especially noisy motor cycles and scooters. The return of the RCVs to the depot became the subject of complaint : although they did not return en masse people became more aware of the noise they made. Complaints were made about the way RCVs were being driven. I am satisfied that from time to time RCV drivers, probably because they were fed up with hearing of the complaints against the operation and/or their driving responded by tooting their horns and similar conduct. I can well understand that suggestions that the exodus should be at 7am rather than 6.30 may have upset them, possibly because, as Mr Lamb suggested, they would not be free as early as before to undertake any further jobs. The Particulars of Claim had alleged that the drivers' conduct amounted to intimidation and harassment but at the outset Mr Hyam stated that whilst he was not abandoning such allegations as part of what had happened he was not relying on any such conduct as constituting nuisance in itself.

22. On 6th June 2006 Mr Lamb made a formal complaint to the Ombudsman about the opening of the depot for RCVs without any consideration of the impact to the local area : in due course this complaint was rejected but not for reasons directly relevant to what I have to consider in this case. Also on 6th June 2006 the local MP, having been consulted by Mrs Lamb, wrote to the Defendants reiterating the complaint of noise caused by the RCVs and asking why the vehicles could not leave at 7am at least until an alternative exit route had been opened. On 14th June at the local parish council meeting it was minuted that "members expressed concerns on behalf of the residents of Carlton Road regarding the unacceptable noise generated from the dustbin lorries exiting Manby Park at 6.30 am every weekday morning"

23. The Defendants applied for a licence for a further 8 HGVs to operate out of the depot. This time there were objections lodged and, following representations opposing the application, the Traffic Commissioner decided to hold a public enquiry. In due course, in November 2006, the Defendants withdrew the application.

24. The Village News and the Parish Council both pressed the Defendants for a speedy solution but none was forthcoming.

25. On 29th August 2006 the Parish Council wrote to the Defendants expressing disappointment at their failure to produce a speedy solution. On 4th October 2006, Councillor Moors, Chairman of the Parish Council wrote seeking a meeting stating he had been approached by "a large contingent of residents, some of whom had made direct protests and others who had compiled a petition" who had asked him to discuss a way forward in the short term pending negotiations over a long term plan. The Petition contains the signatures of some fifty or so village residents plus a few from nearby. It is not clear whether Councillor Moors passed or showed the petition on to the Defendants. Following the meeting the Chief Executive wrote to the Parish Council on 14th November 2006 stating the Defendants were reviewing whether in the short term it would be possible to start refuse collection slightly later in the day and were continuing to seek alternative exit points for the vehicles. In December 2006 Village News reported that the Defendants' Chief Executive had stated that having the RCVs depart an hour later each day was not a feasible option because of the tip closing time but that an alternative route out of the depot was an option in the future.

The Defendants' reaction

26. The Defendants instructed David Dodds, their environmental team leader, to carry out noise assessments which he did at Mr Lamb's property on 22nd, 24th, 25th, 26th and 27th April 2006. I shall return to those assessments later. On 5th May he sent a memorandum, which contained his assessment readings to Mr Robinson stating :

"The background levels in the property can fall as low as 18dB before sunrise. Due to the time of year birdsong increases this to the region of 34dB by 05.10 hrs. It is therefore reasonable to assume that the problem may be worse in the winter months when it will still be dark at the times shown in the above examples of the highest LAmax levels.
WHO Sleep disturbance standards recommend LAmax levels do not exceed 45dB during night time hours (viz 23.00 - 0700) on each occasion where refuse lorries were leaving Manby Park there are at least 10 exceedences of this level....The Highest levels recorded... are also some 30dB in excess of the background noise levels experienced prior to any refuse lorries leaving Manby Park
It is also clear from the readings taken that there is an issue with certain workers vehicles arriving at the site often as early as 05.57 hrs which has caused further disturbance, particularly in the case of a scooter with a loud exhaust and the revving of a high powered motor bike at the entrance to Manby Park."

Mr Dodds sent his findings to Mr Lamb advising him in similar terms to the above. Mr Robinson then sought Mr Dodds' recommendations. At the same time the Defendants started to investigate the possibility of an alternative route.

27. Mr Dodds recommended the following :
(i) rerouting the RCVs within the Park so that instead of driving south of Tedder hall and then parallel with Carlton Road before turning right out to the Carlton Road exit, they turned left immediately on exiting the depot and then drove north within the Park before turning east along a one way road straight to the exit ;
(ii) ensure that RCVs did not leave Manby Park in night time hours - this would require amendment of the working day so that RCVs did not leave the site until at or after 7am ;
(iii) have someone on point duty at the gate to reduce the likelihood of vehicles revving when they accessed the main road ;
(iv) actively seek an alternative exit so that vehicles did not have to pass close to residential properties. He mentioned gaining access to the B1200 from the LCC depot.

28. On 25th May 2006 Mr Robinson wrote to Mr Lamb stating :

"looking at the values recorded, it is clear that the vehicles do impact on the ambient noise levels at your property and therefore the Council are considering how we can seek to minimise this impact"

He added that they were reviewing the Manby Park site to try and create an alternative exit but that would likely take some time and a member of staff would be stationed at the gate so that vehicles could enter Carlton Road smoothly without the need to rev. On about 29th May 2006 Mr Dodds' recommendations of rerouting the RCVs within the park and having someone on point duty at the gate were implemented. On 2nd June 2006 the Defendants' Chief Executive wrote to Mr and Mrs Lamb stating the Defendants were taking their concerns seriously and "actively seeking to mitigate the impact of our operations".

29. Following the new exiting arrangements it appears that Mr Dodds again measured sound levels and found reductions of up to 10dBA. On being told this Mr Lamb commented that no one had done fresh tests at his property but an independent test at his property had produced a reading of 79 dB. Mr Lamb repeated this in evidence stating the test was done by a friend. The view of Mr Lamb and Mr Bontoft was that there was more noise than before the change. On 15th August Mr Bontoft again wrote to the Defendants complaining about the noise and stating that with the change of route inside the Park "the noise from the lorries coming over the car park is much louder. As for the flag man slowing the traffic that still does not stop the whine from the automatic gearboxes".

30. Mr Lamb also instructed acoustical experts, Sanctum, to assess the noise. Their Ms Kayani wrote to Mr Dodd seeking clarification of his views and his opinion. On 9th August Mr Dodds replied :

"I confirm that the noise levels measured at Mr Lamb's property were sufficient to constitute a statutory nuisance under section 79(1) of the Environmental Protection Act 1990 had they arisen from private land and not council owned property. 
There is also some argument as to whether or not the peak noise levels from the refuse vehicles occur actually on Manby Park (the Council's land) or Carlton Road (a section of the public highway) as from the recordings taken to date it is not possible to determine the point at which the vehicle crosses from Manby Park to the Highway."

31. Mr Dodds took further readings at Mr Lamb's property. On 21st August he sent the findings to Mr Fowler, the Defendants' Head of Environment Health and Housing with the following observations :

"1. Although the refuse vehicles are now going out in convoy and slower as opposed to individually at random speeds, this has shortened the extent of the noise exposure to one period of about 5 mins but the levels of noise remain the same if not worse as levels experienced within the property for that period of time can reach anything up to 75dB (LAmax).
2. In terms of sleep disturbance as per the World Health Organisation guidelines for Community Noise this is still considerably in excess of the criteria.
3. ....the noise level is also raised by the level of birdsong in close proximity to the microphone which is due to the fact that the property is surrounded by trees and covered at the front by ivy".

32. On 23rd August Mr Dodds sent an e-mail to Mr Fowler stating he had that day carried out further tests in an attempt to determine the difference in noise levels between the RCVs when in the Park and on the highway. He took noise generated at the gateway as representing noise when the RCVs were within the Park and noise beyond that as being when on the highway. He then after adjusting for distance and noise attenuation concluded that a level of 52dB would be experienced outside the property equating after allowing for attenuation of 10dB with an open window, to 42dB within the property, which after allowing for background levels (LA90 ) found to be 39dB gave a difference of 3dB above background levels when the RCVs were still within the Park. This he said was within acceptable guidelines. These findings were sent to Mr Lamb.

33. Apart from changing the route within the Park and providing someone on point duty to attempt to ensure the RCVs could exit in one go into Carlton Road there was no outward change in the operation in 2006. Behind the scenes the Defendants were attempting to negotiate rights which would enable the RCVs to leave the Park by a different exit.

34. In December 2006 Village News recorded the Chief Executive as stating that an alternative route out of the depot would be an option in the future but such would come at some expense and he thought it likely it would be publicised so that local taxpayers could decide. On 18th December 2006 Mr Robinson wrote to Mr and Mrs Bontoft, following a visit by them to discuss the problem, stating that options for an early morning exit had been pursued but without success to date and efforts were continuing to find an alternative route.

35. In March 2007 Village News published an article complaining about the Defendants' failure to consider the matter properly before moving the operation to the Meteor House depot but also complaining about the daily continuing nuisance and the deep distress it asserted was still being suffered by many residents. In the same issue the Parish Council Report, published in Village News and written by the Chairman of the Parish Council, recorded that lorry movements out of Manby Park were still causing severe problems to some people in the parish. Ms Burney - Jones who had written the article told me this was the last article published on the subject. She also told me that Village News was independent of the Parish Council.

36. Meanwhile Mr Lamb continued to complain and instructed solicitors who on 19th October 2006 wrote to the Defendants stating that the Defendants, contrary to what they had said in their letter of 2nd June, were not taking Mr and Mrs Lamb's concerns seriously, seeking an update and a timetable for the proposed new route and stating that unless a satisfactory way forward was proposed they were likely to be instructed to take proceedings seeking an injunction and damages.

37. In reply the Defendants' solicitors stated :

(i) whilst it was accepted that noise readings taken from the Lambs' property did reach levels over the WHO sleep disturbance standard at between 6.30 and 7.00 am, these did not constitute a statutory nuisance ; 
(ii) the levels of noise created by the RCVs on Manby Park did not give rise to levels over the correct standards.
(iii) when the RCVs entered the public highway it was accepted that the noise levels increased over the accepted guidelines, however these did not constitute a public nuisance as once on the street they constituted traffic, which was expressly exempt from the statutory nuisance provisions.

The letter also stated that the long term solution was to find an alternative exit, 3 alternative exit routes were being explored and the most satisfactory of these was at an advanced stage of negotiation. In conclusion, the letter refuted that the noise constituted a statutory nuisance and that the Defendants had any liability to Mr and Mrs Lamb.

38. The Claimants' solicitors replied on 6th November 2006 pointing out that they had not alleged statutory nuisance, that a private action was more appropriate and put forward some suggestions. On 23rd November they wrote stating they had been instructed to issue proceedings. The Defendants' solicitors' response by letter dated 6th December 2006 was to state that the Defendants' use of the highway followed the grant of planning permission for the depot and was not out of character for the neighbourhood. The letter accepted that "the changed character following the grant of planning permission has created a disturbance" and said the Defendants would continue to try to reduce that disturbance. In further correspondence the Defendants' solicitors denied there was an actionable nuisance. Mr and Mrs Lamb's solicitors sought a timetable for remedial measures which would avoid the need for court action.

39. On 19th October 2007 the Defendants' solicitors wrote to the Claimants' solicitors stating that a new transfer station had opened which provided the possibility of moving the start time from 6.30 am to 7.00 am. and that the Defendants were now in the process of implementing the change. Such change necessitated changing the terms of the RCV operatives' contracts of employment which, I was told, required 13 weeks notice. The Claimants' solicitors replied that the change in time would not resolve the matter as the problem was not confined to the exit of the RCVs but also concerned the earlier arrival of the RCV drivers and crew. On 5th November 2007 the Claimants issued the present proceedings.

40. Meanwhile both in 2006 and 2007 complaints were being made to the Defendants, mostly by Mr Lamb and Mr Bontoft about the conduct of the RCV drivers. From time to time the Defendants issued instructions to their drivers dealing inter alia with the importance of driving as quietly as possible.

The change from 6.30 am to 7.00 am

41. On 14th January 2008 the departure time for RCVs was changed from 6.30 am to 7am. The change did not, as I find, have the hoped-for effect. The later time meant there was more traffic about and the emerging RCVs had to wait for traffic to pass and fit into the traffic without going slowly as they had been supposed to do before. This meant more noise when the RCVs accelerated away. Witnesses from both sides confirmed these facts. That day Mr Lamb whilst acknowledging that there was more traffic on the road complained that the noise was unbearable and on 16th January Mrs Bontoft complained that the RCVs were now leaving "like idiots". The Defendants reiterated instructions to their drivers to drive carefully.

The present situation

42. The RCVs continue to leave the depot via the Carlton Road exit. They are meant to depart at 7 am which means that their crew arrive at the depot from about 6.30 am. The RCVs no longer exit in one continuous slow stream but fit in to passing traffic. They return singly, but sometimes in groups of 2 perhaps 3, in the afternoon via the B1200 since the new transfer station has opened. They drive past Mrs Taylor's and Mr Lamb's houses before turning to their right into the Park. Mr Bontoft said none now pass his bungalow on their return.

The Claimants' lay evidence

43. Mr Lamb and Mr Bontoft gave oral evidence. In addition I heard from Ms Burney-Jones. I received witness statements from Mrs Taylor, Mrs Burney-Jones and Mr Lukey.

Ms Burney-Jones

44. Ms Burney-Jones lives in Old Rectory Cottage near the village church and therefore some distance away from the exit. She visits her mother daily and has stayed with her mother on a few occasions when her mother was unwell. She is 65 years old and retired, has lived in the village for some 10 years and takes an active part in village life being a contributor to Village News.

45. She had only personally experienced noise and vibration from exiting RCVs on a couple of occasions, at least a year ago, when she had been staying with her mother. She said she had never witnessed what she called "the cavalcade". She said the RCVs were quite large vehicles which accelerated away quite close together. Seeing them was a very strange experience, not pleasant at all. Obviously there was the noise but there was also vibration. You could both hear and feel them. She had witnessed only the morning exit. She said it was alien in the middle of a village where one was not used to that level of heavy traffic moving around at that time in the morning.

46. In cross examination she said she was here to speak on behalf of her mother. From her own house she could hear the RCVs in the early morning especially in summer with the windows open but she had never been woken up by one. She said nothing else was moving around at that time. She said her mother's principal complaint was noise and vibration and her greatest concern was vibration. Her mother was most concerned about vibration and the manner in which the lorries were driven. Moving the exit time from 6.30 am to 7 am had not solved the problem which could, however, be solved by changing the route to via the Middlegate exit. Nobody in the village had realised what the new regime was to mean. It had come as a complete surprise. She repeated what she had said in her witness statement, that some villagers, including dustmen, were reluctant to speak up about the problem. It was now 2½ years later and the situation was still the same.

47. Ms Burney-Jones was in my judgement, a very straightforward and entirely honest witness.

Mr Bontoft

48. In his witness statement Mr Bontoft had said :

" It is the nature of the noise that makes it so disturbing and stressful. The vehicles have automatic transmissions and so have to rev their engines to make the vehicles go forward. They screech and it can make you feel sick at times. The intensity for me depends on whether the lorries turn left or right out of the business park. If they turn left towards the main road then I avoid them passing directly in front of my home. If they turn right out of the park they travel directly past our house. However, I can also hear them when they start up in the morning over at the depot. They (sic) one starts and the noise begins to build up once their engines start up.
We used to wake at about 7.30 to 8.00 am in the morning. Since the noise has started we have been waking at 6.00. When we get up we come to the back of the bungalow, in the kitchen, but we can still hear it here in the back. For 10 - 15 minutes you try to ignore it and you think, God will this ever stop. It gets you wound up. It's a very unpleasant noise.
Even since they have been starting at 7.00am you are aware that from 6.30 am, that the council's employees are turning up to start work at the depot you hear their cars and motor bikes entering the business park. You are still woken up ; you know the noise it's going to happen.
....................
To be honest I'm getting to the end of my tether. The continuing nuisance makes you feel sick...."

He had applied for a reduction of the valuation band for his bungalow. Refusing the application, the Valuation Officer stated that the Defendants had confirmed that the Manby Park site was "not to be a permanent one" and that although the passing lorries were "an unwanted disruption" they would not devalue the property sufficiently to reduce the value to a lower band. 
49. In evidence dealing with the change in exit time from 6.30 to 7 am he said it had most certainly not solved the problem because the RCVs now left at a greater speed and the flagman did not go on the road to see the traffic out but all he did was watch them go by.

50. His complaint about noise from the RCVs was founded on the fact that they, unlike their predecessors which had exited by Middlegate, had automatic transmissions which emitted a distinctive sound. He stated the type of transmission made it "shocking", "all of a sudden a business park had become a haulage contractors yard". He said the noise was louder than that produced by any other HGV, louder than a car and that the type of noise was louder than that of a tractor. His complaint was both about the character and loudness of the noise. He accepted that the noise affecting him was less when the RCVs turned north but added you only needed one to wake you up. He maintained that you did not get what he described a high pitched whine from manual transmission RCVs. Contrary to what he said in his written statement he said he could not hear the RCVs starting up. He said he was actually woken up as they left the depot where, once they were out of the depot and had turned left still within the Park, there was an open area in front of the buildings. He accepted that Friday was always an "empty day" as was Saturday and that vehicles returning to the depot no longer passed his house but said he could most certainly hear an RCV approach from the opposite direction. He rejected the suggestion that he had become oversensitive to the noise. He was not saying he would not be complaining if it was at 7.30 am but that would be a more social time. It would be a nuisance even at 9.30 or 11.30 am. He had timed the exit as taking between 5 and 10 minutes on several occasions. What he wanted was that the RCVs should exit by a different route.

51. Mr Bontoft tended to see things in black and white. Like others he was upset that the Defendants had introduced the new exit without consultation and by the sudden disruption he said it had brought. He was the subject of a combative cross examination and as a result himself became a little combative. He had convinced himself that the distinctive whine, which I accept the RCVs make, was a new feature of the RCVs exiting via Carlton Gate, whereas I am satisfied on the evidence of Mr Davis that manual transmission RCVs have not been in service at Manby Park since 1993 and that, if anything, the RCVs now in use are quieter than those they replaced, which were quite old. But I accept the thrust of Mr Bontoft's evidence that noise from the RCVs as they exit is disturbing and their noise sufficient to wake him. I accept too that he could hear them as they progressed across the Park to the exit. I also accept that he could be woken by a noisy motor cycle, scooter or car of staff arriving for work and on some mornings by the troop of RCVs as they were progressing within the Park.

52. Mrs Taylor

In her witness statement Mrs Taylor, who is 39 years old said that before the problems occurred she would normally get up at 8.30 am. "Now I am disturbed and can't get back to sleep once they start up". She said she felt angry about the Defendants "They do not appear to be listening but instead are content to carry on their operations in the manner that suits them".

53. Mr Lukey

Mr Lukey said in his witness statement that he was a 55 year old builder and lived about 50 metres from the exit having moved there in 2005. He described the locality as quiet and peaceful but then within a few months " the noise and disturbance started...something completely unexpected and uncharacteristic of the area". He said :

"The noise and vibration created is very disturbing, more so in the summer. They were until recently rolling out of the depot at about 6.30 am and it really wakes you up. The change in start times since January has not helped the situation. In fact the noise has actually increased. They come out of the park and accelerate quicker than before".

He supported the action taken by the Claimants : "something should have been done to resolve the problem by now".

54. I have already quoted the relevant part of Mrs Burney-Jones' short witness statement.

The Defence lay evidence

55. The Defendants called :

(i) Mr Pat Fowler, their Head of Environmental Services ;
(ii) Mr Nick Davis, their Waste Services Manager ;
(iii) Mr Peter Hickson, a Governance Business Manager ; and 
(iv) Mr Paul Robinson, their Director of Community Services, who has since moved to Derby City Council.

In addition they relied on written witness statements from ;

(v) Mr Simon Machen, Service Business Manager for Planning and Business control ; 
(vi) Mr Robert Frost, a team leader in the Maintenance Technical section ; and 
(vii) Mrs Christine Yates, their Waste Services Manager

The Defendants called no lay witness who was not employed by them and in particular no-one from the village. They did not call Mr Dodds, whom I was told remained in their employment. Mr Diggins criticised the Claimants for not calling Mr Dodds. For my part, if anyone should be criticised for not calling Mr Dodds it is the Defendants. He, more than any of the Defendants' employees called had first hand experience of what was been happening. His final conclusion was that noise levels on the highway were not excessive and thus to that extent he supported a main plank of the Defendants' case. His findings and opinions are in evidence before me.

56. Mr Fowler

Mr Fowler's first witness statement dealt with the history of Manby Park, the operation of the 2 green waste RCVs and the 2 hook lift vehicles, the history of the development of Meteor House depot and the present RCV operation. He exhibited a schedule of RCV movements which shows the number of RCVs exiting and the direction they drive over the repeating 2 week period. The schedule, which shows the following, is not disputed.

Week A Week B

Turn left Turn right Turn left Turn right
Monday 20 2 22 1
Tuesday 20 2 22 1
Wed. 15 7 15 8
Thurs 13 9 17 6
Fri 23 0 22 0

Mr Lamb's property, as the closest to the exit would be the most likely of the 3 Claimants' properties to be affected by exits both to the right and the left. Those turning left drove past Mrs Taylor's "The Sycamores". Those turning right drove past Mr Bontoft's "The Bungalow".

57. He said the normal time for the return of RCVs was between 2 and 3pm, dependent on location, size of round and amount of refuse. In winter, green waste RCVs would typically return around 1pm and in summer RCVs could return at 4.30 pm where there had been heavy loads. On Saturday two drivers shuttled 10 RCVs to the LCC depot off the B1200 for cleaning, the first exiting at about 6.30 am and the last returning at about 12.30 pm. In addition a missed bin RCV left at 7am and returned at about 10.30am. From 13th November 2006 he had recorded all complaints from Mr Lamb and Mr Bontoft : he had recorded 15 from Mr Lamb, 1 from Mrs Lamb, 7 from Mr Bontoft. There had been no complaint from Mrs Taylor. He stated that when the exit time was at 6.30 am and a banksman was present, departure took 5 - 10 minutes. Since the change to 7am the exit time had inevitably been extended due to increased traffic on Carlton Road at that time.

58. His second witness statement commented largely on what he considered were inaccuracies in the Claimants' lay witness statements. Having heard Mr Lamb and Mr Bontoft I am in a position to assess the value of their evidence. Mr Fowler offered no criticism of the evidence contained in the witness statements of Ms Burney-Jones and her mother.

59. Mr Fowler was a straightforward witness but he was protective of the Defendants' position. He suggested that the early morning exit of the RCVs was not an issue of great importance in the village and only 2 people had complained. Such a small number was, he said, very unusual. In fact Mr Taylor had also written to complain at one stage. When I suggested there was a groundswell of opinion in the village against the early operation of the RCVs he said it was not as great as I was suggesting. I accept his evidence relating to factual matters but I prefer to form my own views on matters of opinion.

Mr Nick Davis

60. Mr Davis, the Defendants' waste manager, had been employed by Serviceteam when they operated out of a depot in Cinders Lane Louth, and then from the LCC depot. When the Defendants took refuse collection in- house in 2006 he entered the Defendants' employment.

61. He told me that the RCVs used by Serviceteam were the same as those now in use save that they had been in use longer and the present Mercedes RCVs had extra silencing fitted. Contrary to what Mr Bontoft had said none of the RCVs in service with Serviceteam at the LCC Park depot had had manual transmission/gearboxes and, if anything, they had been noisier than those at present in use. Prior to being a manager he had been a driver.

62. He explained why in his view it would be impossible to send out the RCVs later than 7am. Briefly, there was a limit to the working day because waste stations closed at 4pm, were reluctant to receive refuse after 3.30pm, 3.45 pm at the latest, and refuse could not be brought back to the depot for health and insurance reasons ; in winter months early sunset limited the day and poor road conditions could hinder progress, most roads were C class, many were narrow with dykes on both sides and ice could be a problem ; the Defendants' staff all worked a 7 hour 24 minute day with ½ hour unpaid break which left little spare time available. Although since 2006 no problems had arisen (and that would include after the 7am start) pressure on time was increasing with new requirements in the offing for separation of refuse and restriction on drivers' hours : at present RCV drivers were exempted from the 4½ driving hour rule applicable to HGV drivers.

63. He said that since the move to 7am the RCVs took generally 5 - 10 minutes to exit Manby Park into Carlton Road. At the same time he said he had timed the exit on 11th September 2008 and it took from 7.04 to 7.08 am apart from one vehicle which had some trouble. He said each vehicle was stationary at the exit, on average for 5 seconds. It took an RCV approximately 20 seconds to reach Mr Bontoft's bungalow and 22 seconds to reach Mrs Taylor's house : this last measurement/assessment appears unreliable since Mrs Taylor's house is 170 metres away from the junction whereas Mr Bontoft's is 85 metres and suggests that the average speed of the RCVs to Mrs Taylor's house was about 29 mph. In his second witness statement he said he had timed the exit on 7 occasions between 1st and 13th October 2008 evidence and that it took no more than 5 minutes to complete the exit into Carlton Road.

64. I accept the evidence he gave about the history of and present arrangements for refuse collection. I find it surprising that in his first witness statement dated as late as 12th September 2008 he stated that the exit generally took 5 to 10 minutes but that all the timings in his second witness statement were less than 5 minutes unless what he was timing was different on the October occasions. In his witness statement he said he "strongly denied that there was routinely or even occasionally a problem with RCV drivers conduct towards any of the Claimants as alleged or at all". I reject that evidence. It is clear to me, from records kept by the Defendants and instructions issued following complaints, let alone what the Claimants' witnesses have said, that there were such problems from time to time. I accept that from time to time HGV vehicles will enter Manby Park visiting business such as Raleigh and I accept his evidence that the present RCVs are probably quieter than those earlier in service.

65. Mr Davis emphasised the limited time available daily for refuse collection and that organising the working day for RCVs was not an easy task : the useful hours of the day differed from summer to winter. But so does the nature and probably quantity of refuse collected. There is less green waste in winter. Those collecting green waste return earlier in the winter than in the summer, according both to Mr Fowler and Mr Robinson. But, given that the 2 week rota continues throughout the year there seems to me to be some slack in the day for those collecting green waste. Winter weather and light may restrict operating efficiency but summer, when the weather is kinder to Lincolnshire roads and the days are longer, should increase efficiency and make more time available for refuse collection. Having said that, I accept that later exit times could themselves cause problems with traffic parking etc as people go to work. Mr Diggins for the Defendants submitted it was unsafe for waste tips to operate at night. There was no evidence that that was so but if it was, and if safety was a criterion, there appears no reason why waste tips should not close later in the summer. I heard no evidence that arrangements at present in force with the tip operators are sancrosanct and unchangeable.

66. I have reservations over the opinions he expressed. He was protective of his workforce and, in my judgement was also protective of the Defendants' position.

Mr Peter Hickson

67. One of Mr Hickson's tasks had been to make a risk assessment of the Defendants' chances of success in the present proceedings. Having made an assessment he had been told by others that it was wrong and he had changed it. He was called to explain that his earlier adverse risk assessment had been uninformed. I do not regard his assessment of the chances of success of this action as helpful and, without any disrespect to him, will make up my own mind on the evidence before me.

 

Mr Paul Robinson

68. In his witness statement dated 22nd April 2008 Mr Robinson said the refuse collection system had been devised following computer modelling which took into account the location of every property in the district, the location of Meteor House depot and the location of refuse disposal points. Any changes in working practices, he said, would have a considerable effect on the Defendants' ability to complete its rounds within the working day, achieve efficiency targets and remain within its budget. He said the Defendants were the best performing council for recycling, their budget for refuse collection service in 2007-2008 had been £3,933,348 and they had been just within budget with expenditure of £3,928,020, which demonstrated, he said, the limited resources available to make fundamental changes to the service.

69. He had been involved in the present matter following receipt of the initial complaint. He instructed Mr Dodds to investigate and take noise readings. He denied there had been a nuisance and explained the Defendants' reactions as a response founded on good neighbourliness. He summarised Mr Dodds' recommendations and said that, following the change to 7am, the period in which noise was generated by the RCVs when exiting into Carlton Road could now be longer than 5 - 10 minutes to ensure safe exiting and that "the increase (sic) traffic volume now meant that the RCVs now had to stop and then rev more than otherwise would be required to overcome the inevitable inertia of moving the RCVs from a stationary position.". He said the Defendants had spent a great deal of time and effort exploring other reasonable and practicable options.

70. He explained why it was thought initially that a change from a 6.30 to a 7 am exit would not possible and suggested that the change in time to 7am would bring with it increased costs. However, Mr Davis' evidence made clear the change has been possible with all RCVs able to return in time and all refuse disposed of within the working day. I was not provided with any evidence that the change in time had in fact resulted in extra cost. He mentioned one or two teething problems with the later start.

71. In oral evidence he told me that he became involved in the dispute because it was at a level where he felt it was not going to be resolved. He, of course, was involved almost immediately after Mr Lamb made his first complaint. He told me that he had a degree in environmental health and had attended courses on statutory nuisance and acoustics. He evidently would have been in a position to understand Mr Dodds' readings. He told me the application for a further 8 RCVs at the Meteor House depot had not been because they wanted 8 extra vehicles but because they wanted extra capacity there. He did not consider there had been a groundswell of opinion in the village against the RCVs. Rather, two persons, Mr Lamb and Mr Bontoft, had been very vocal. He compared the level of complaint made with the opposition establishing a wind farm had produced. When he had attended the Northern Area Committee to explain where the Defendants had got to with the problem he said not one member of the public turned up. He described Mr Lamb as having been very abusive but also very clearly upset with what was happening. He said Mr Dodds' readings were taken to establish whether or not there was a reason for the complaint - it was obvious to have noise readings done. He described Mr Dodds' readings as providing a rough and ready guide, he had not stated his methodology, it was a snapshot not an expert's report, done to get a "feel" for the level of noise.

72. In cross examination he agreed that following the 10dB reduction in noise at the gatehouse he had referred to in his witness statement, further readings taken by Mr Dodds at Mr Lamb's property had shown that noise levels up to 75dB were being experienced within the property. When it was put to him that he was following Mr Dodds' recommendations at that time he was reluctant to agree, suggesting that they were considering an alternative exit independently of Mr Dodds' recommendations. He accepted that they had implemented Mr Dodds' recommendation to keep the revs down to 1000 - that was good common sense.

Mr Frost

73. Mr Frost's written statement dealt with the application for planning permission for Meteor House depot and stated that the cost of making the depot fit for its purpose and the provision of ancillary office accommodation was approximately £300,000, of which about £35,000 was for the office accommodation. He offered no estimate of what monies would have been wasted in the event of a move being necessary.

Mr Machen

74. Mr Machen's written statement, which was agreed, dealt with the procedure followed and progress of the planning application and also exhibited an extract from the 1999 district plan and the 1999 amended Grimoldby / Manby village plan. His statement records that the Defendants' Environmental Services Department was consulted over the proposal : he exhibited the proforma response they were sent which was returned with the "SUPPORT / OBJECT / NO OBSERVATIONS" line left intact and no observations inserted underneath it in the space provided. He also exhibited a site inspection note which has a box headed "NEIGHBOURING PROPERTIES" within which the entry "Potential for noise/general disturbance" was described as "LOW". Whether this was meant to refer to the depot itself or the Carlton Road exit is not apparent on the face of the document but it appears unlikely that the observation was referring to the exit.

Mrs Yates

75. Mrs Yates' evidence was also, by agreement, given by written statement. In it she recorded Mr Lamb as telling her on 6th June 2006 that "he was only woken by a scooter at Manby Park and if it hadn't been for the scooter he feels he wouldn't have been waken at all by the trucks as there had been a remarkable improvement in the noise reduction". The 6th June was after the introduction of a banksman.

The Expert evidence

76. It may be helpful, before dealing with the expert evidence to deal very briefly with how noise is measured, which I have dealt with thus far by footnotes, and publications dealing with noise.

Noise measurement

77. In his report Mr Stigwood provided a helpful glossary which I gratefully plunder. Noise is measured in decibels (dB). The "A" weighting applied to decibels attempts to simulate what the human ear will hear when sounds are quiet so : 
(i) LA(90) is the A weighted noise level exceeded for 90% of a specified period. It is a statistical measurement and is generally used to define the background noise level. 
(ii) LAmax is the highest A weighted noise level recorded.
(iii) LAeq is an equivalent continuous sound level over a specified period and represents the average sound level over that period.
The above are some of the most common indices of sound levels. 
(iv) Ambient sound, which needs to be distinguished from the background noise level (LA90) is all the sound in a given situation at a given time, composed of sounds from near and far.

Publications

78. Both Mr Stigwood and Mr Jarman referred to the World Health Guidelines on Community Noise 1999. The Guidelines recommend that dBA be used in the assessment of community noise, that LAeq be used to measure continuing sounds but that where there are distinct events LAmax or LAeq be considered. The Guidelines in para 2.3.2 state :

"... the LAeq of the noise from a busy road may be a good indicator of the annoyance this noise may cause for local residents. However such a measure may not be very useful for predicting the disturbance to sleep of a very small number of very noisy aircraft fly-overs. The disturbance caused by small numbers of such discrete events is usually related to maximum sound pressure levels and the number of events".

The Guidelines indicate a "critical health effect" namely night time sleep disturbance when 30 LAeq and/or a LAmax of 45dB is exceeded inside bedrooms ; alternatively 45LAeq and 60LAmax outside bedrooms with a window open. Sleep disturbance is defined to include changes in the quality of sleep as well as being woken up.

79. I was also referred in the course of the case, particularly in Mr Jarman's report, to recommendations contained in various British Standards. He mentioned : 
(i) The Design Manual for Roads and Bridges, which gives guidance for the assessment of road traffic noise and assesses such noise by reference to average noise levels over an 18 hour period using the average of the hourly LA10 noise levels.
(ii) The IEA Guidelines for the Assessment of Road Traffic, which deals with the impact of noise from new developments and which notes that calculation of an 18 hour noise level provides an insufficient guide of the impact in many developments and that during night time periods peak events may also require careful consideration. 
(iii) BS8233 Sound Insulation and Noise Reduction for Buildings- Code of Practice which primarily provides criteria for the design of buildings, allows a lower standard (30dBLAeq described as "good" and 40dB LAeq as "reasonable" for inside bedrooms). But the recommendations also state that for a reasonable standard in bedrooms at night individual noise events should not exceed 45dB LAmax. 
(iv) BS4142 (1997) which deals inter alia with methods of determining noise levels from, and offers guidance on acceptable levels of noise from, factories and industrial premises. Mr Dodds had used BS4142 for his assessments. Mr Jarman thought it was inappropriate where traffic was concerned.

Mr Dodds

80. Mr Dodds was the Defendants' in-house expert instructed by Mr Robinson to investigate Mr Lamb's and later Mr Bontoft's complaints. He was not called as a witness by the Defendants but his findings and letters have been put before me. I have rehearsed their contents above. He noted that the noise was greater after the exit time moved to 7 am. Mr Diggins commented on the failure of the Claimants to call him. For my part given his findings and opinions I see no need for the Claimants to call him. Rather it was for the Defendants to call him if he wished to resile from his findings or opinions or to explain where he had gone wrong.

81. The Claimants relied on the expert evidence of Mr Stigwood and the Defendants on Mr Jarman. Mr Stigwood's expertise was in environmental matters generally of which noise was one. Mr Jarman was an acoustician. Both gave evidence on the environmental impact of noise and took noise readings for the purposes of this case. Both in assessing the impact of the noise compared the noise level with the noise level normally found in Carlton Road. Neither measured vibration.

Mr Stigwood's findings and opinion

82. Mr Stigwood agreed broadly with Mr Dodds' findings and opinions. He produced a helpful table listing Mr Dodds' and his own noise level measurements taken inside the bedroom of Tudor Lodge. Typically, Mr Dodds' findings on six separate days, 21st-27th April 2006, had been 65 LAmax or more with levels generally not dropping below 50 or 55 dBA normally and 50-68 LAeq during the event compared with Mr Stigwood's on 1st December 2006 of 57 LAmax, generally not falling below 47 dBA and with average levels during the event of 50 dB LAeq.

83. Mr Stigwood considered that Mr Dodds had made some unwitting errors when using BS 4142. He had :

(i) compared noise levels inside Tudor Lodge with background levels outside and as a result understated the difference by 10 dB ;
(ii) assumed the noise source was at one point namely where the vehicles turned outside Tudor Lodge, ignoring the noise caused by following moving vehicles. Mr Stigwood said attenuation (loss of sound) is different when the noise is moving ;
(iii) measured noise levels at the facade of Tudor Lodge instead of 3.5 metres away and thus failed to measure the sound reflected from the building which led to a 3 dB under measurement of the noise level.

84. These criticisms were not refuted by the Defendants.

85. Mr Stigwood's table also shows comparable LAmax readings for different positions outside Tudor Lodge : Mr Dodds 75 on 23rd August 2006 ; Mr Stigwood 72 on 1st December 2006 and 5th November 2007 and 77 on 14th May 2008.

86. In addition the table shows readings taken at The Sycamores and The Bungalow. At The Sycamores on 9th April 2008 Mr Stigwood took an internal reading of 65 LAmax with an average level during the event of 53 LAeq ; his outside outside readings were 79 LAmax with an average during the event of 62 LAeq. General levels were described as variable for each. At The Bungalow on 9th April 2008, Mr Stigwood's son recorded outside readings of 79 dB and LAmax levels generally not dropping below 43 and 50 for different periods with an average level during the event of 61 LAeq.

87. The exiting time on each occasion is given and ranges from 6 minutes to 11 minutes.

88. In addition Mr Stigwood referred to a print out of his readings taken inside the bedroom at Tudor House on 1st December 2006 which he had annotated. That shows clearly how between 6.29.41 am and 6.38 am the LAeq in the Lambs' bedroom rose considerably. The RCVs exiting between those times are described as exiting "as slowly and quietly as possible". The print-out also shows apparently increased noise levels in the preceding half hour noted as a time when vehicles were arriving at the Park and increased levels thereafter as traffic built up between 6.45 am and 6.59 am. A similar effect of increased level of noise during exit time can be seen in Mr Dodd's print-out taken 0.5 metres from the exit on 23rd August 2006.

89. In his report at para 5.10.f Mr Stigwood commented :

"passing vehicles caused noise levels to rise to similar levels produced by the exiting refuse vehicles but only very briefly and the high levels of noise are not sustained more than a second or possibly two. Their rise and fall in level render them benign".

The levels reached are also demonstrated in a print-out produced by Mr Dodds and reproduced by Mr Stigwood at p 55 of his report.

90. Mr Stigwood concluded that impact was relatively consistent and all the more significant because of the time it took for the RCVs to exit and also what he described as the "particularly noticeable whine" caused by the RCVs, which he said stood out in stark contrast to the area and was "incongruous with the general soundscape of the area". Its primary impact was on sleep disturbance and "repeated intrusion of this type should be expected to lead to increased annoyance" and he would not expect residents to habituate themselves to it. He was of the view that sensitivity to it was likely to increase. He considered the earlier arrival of the staff contributed to the nuisance. Of the three properties he considered Tudor Lodge the worst affected.

91 Mr Stigwood was accused of inflating his cv and of lack of frankness in not stating that his son had taken the readings at Mr Bontoft's bungalow on 9th April 2008. The readings themselves were not challenged. Questions designed to show that he represented claimants more than defendants came unstuck. I reject any suggestion that he had acted improperly or was biased. I found his evidence straightforward, clear and helpful. He was a good witness.

Mr Jarman's findings and opinion

92. Mr Jarman too, was a straightforward, clear and helpful witness. He took the view that the noise should be considered to be part of the road traffic noise and assessed as such ie by a weighted measurement. Therefore, rather than relying exclusively on the extra noise generated at the time of the alleged nuisance, he measured the extra noise by reference to a weighted average over two periods, 1 hour and 16 hours. He acknowledged the need to consider the intrinsic quality of the noise and the circumstances when considering the question of nuisance but concluded that the noise generated in this case was essentially no different from normal traffic noise.

93. He carried out 2 noise surveys. The first between 5.30pm on Wednesday 14th May and 6.45pm on Thursday 15th May 2008 using automatic meters ; in addition he attended at Tudor Lodge between 6 and 8am and The Sycamores between 1.47pm and 3.11pm on the 15th. The second was between 6.05pm on Friday 25th April and 10.30am on Saturday 26th April 2008.

94. On his first survey Mr Jarman noted that up to 49 staff arriving drove past The Sycamores but no more than 6 drove past The Bungalow. All drove close to Tudor Lodge. On Saturdays all RCVs drive past The Sycamores both on exit and return. His first survey measured noise levels at 4 points : within the Tudor Lodge bedroom and 1 metre from the facade of each property. He considered staff arrivals, RCVs exiting and RCVs returning in relation to each of the properties. Since RCV returns and Saturday returns are no longer relied on as giving rise to an actionable nuisance I shall not deal with his findings in relation to these.

Tudor Lodge - Staff arrivals

95. Mr Jarman measured the ambient noise level from 11 pm to 7 am by reference to the LAeq for that period. He found that the total external LAeq was 49.8 dB, that the contribution from staff vehicles was 39.9dB and that the ambient LAeq was 49.3 dB. The staff vehicles caused an increase in ambient LAeq of 0.5 dB which he regarded as minimal. Measurements taken internally, although different produced a similar 0.5 increase in the LAeq. He noted that the calculated external levels, without the staff arrivals, exceeded the WHO Guideline figures by 4.3 dB and observed that this was not unusual as most properties were exposed to noise levels in excess of 45 dB at night. He considered the WHO levels should be considered "aspirational" in the light of this. He noted that nearly every vehicle which passed could be expected to generate noise levels above 60 dBA and that between 6am and 7am there were 58 other pass bys. He observed too that birdsong in the Tudor Lodge garden generated noise levels just above 60 LAmax sometimes reaching 70 LAmax.

96. Comparing his findings with the levels cited in some of the publications referred to above, he concluded the extra noise did not constitute a nuisance.

Tudor Lodge - RCV departures between 7am - 8am

97. Mr Jarman stated the issue to consider was the impact of the noise levels compared with ambient conditions in each hour, the test employed by the Guidelines for the Assessment of Road Traffic, as well as the impact on the overall 16 hour noise levels over the period 7 am to 11 pm (including the effects of RCV returns).

98. On this basis he reached the following conclusions from the readings he took. That the ambient LAeq for the period 7 - 8 am was 58.3 dB to which the RCVs contributed 56.2 dB, at worst 58.4 dB producing a change in ambient LAeq of 3.2 dB for that period. Looked at over a 16 hour period the increase was a mere 0.4 dB on what he described as a worse case day. He noted that such increases are considered just perceptible (most people will not notice a 1 dB increase) but at the same time observed "Clearly the noise was perceptible over the total 5 minutes of events". He went on to say that this had to be seen in context and that in the hour a further 13 heavy goods vehicles were recorded, of which 8 including 5 tractors had been pass bys. He suggested tractor movements along Carlton Road were quite normal : Mr Lamb suggested there was exceptional tractor movement that day because of some local activity. Mr Jarman concluded these departures did not constitute a nuisance.

99. In evidence he suggested that Mr Dodds' readings had been to some extent too high because of the positions where the readings were taken and were of little relevance now that the RCVs left at 7am.

The Sycamores - Staff arrivals

100. Again he measured the ambient noise level from 11 pm to 7am by reference to LAeq from 11 pm - 7.am. He found that the total external LAeq was 49.9dB (Tudor Lodge 49.8) and that the contribution from staff vehicles was 37.6dB (Tudor Lodge 39.9) but that the ambient LAeq was 49.6 dB (Tudor Lodge 49.3). Staff vehicles therefore caused an increase in ambient LAeq of 0.5 dB which he regarded as minimal. Measurements taken internally, although different produced a similar 0.3 dB increase in the LAeq. He assessed noise level and impact as very similar to that at Tudor Lodge and hence not a nuisance.

The Sycamores - RCV departures between 7am - 8am

101. He adopted the same approach as at Tudor Lodge namely comparing the impact of noise levels with ambient conditions in each hour and on the overall 16 hour 7 am - 11 pm noise levels. He found the ambient LAeq for the period was 58.8 dB (Tudor Lodge 58.3 dB) to which the RCVs had contributed 52.4 dB (Tudor Lodge 56.2) at worst 54.4 dB. Over the 16 hour period the increase was 0.1dB on the worst case day. He observed "Clearly the noise of the individual pass bys was perceptible" but sought to put this in context of other passing traffic. Again he concluded the departures did not constitute a nuisance

The Bungalow - Staff arrivals

102. Mr Jarman when he attended on 15th May noted that out of 52 pass bys only 6 turned into Manby Park in the period 6 - 7 am. He said the LAmax of each would likely be over 60dB but as the same would be true for other traffic it was not significant. He concluded there was no nuisance.

The Bungalow - RCV departures between 7am - 8am

103. He adopted the same criteria as before. He found the ambient LAeq for the period was 60.2 dB (Tudor Lodge 58.3 dB ; The Sycamores 58.8) to which the RCVs had contributed 53.7 dB at worst (Tudor Lodge 58.4, The Sycamores 54.4 dB), an increase of 0.9 dB. He remarked "Clearly the noise of the RCV pass bys is perceptible" but once more put it in the context of passing traffic noting that the RCVs constituted only 8% of passing traffic. He concluded there was no nuisance.

104. All Mr Jarman's readings were taken since the 7am exit time had been introduced. He did not dispute the accuracy of Mr Stigwood's raw data and accepted that his and Mr Stigwood's findings were consistent with each other. He was not saying the RCV noise could not be heard. His case was that passing traffic could also be heard and, seen in the context of passing traffic, the extra noise ought not to be considered a nuisance. He considered Mr Stigwood had not given sufficient weight to the noise from ordinary traffic. He accepted that his readings for 7.45am on 15th May showed an LAmax rise of 8.9 dB.

Conclusions on the expert evidence

105 Given Mr Stigwood's and Mr Jarman's differing expertise it is not surprising that the emphases in their evidence differed : Mr Stigwood concentrated on the impact of the RCV noise at the time whereas Mr Jarman considered the impact of the noise in the context of noise levels recognised as acceptable under various standards. Neither challenged the other's noise measurements. Whilst British Standards and conventional approaches to assessing road traffic noise may be useful and highly relevant in assessing the likely impact of noise in given circumstances I do not consider they provide governing criteria when nuisance has to be considered. Decibel level is merely one factor, albeit a significant factor, in assessing whether there has been a nuisance. I adopt what Rose LJ said in Godfrey v Conwy CBC [2001] QBD EHLR 10 when dealing with one limb of the definition of statutory nuisance contained in S 79(1)(g) of the Environment Protection Act 1990 - "noise emitted from premises so as to be prejudicial to health or a nuisance" :

"...it is....impossible to contend that a particular decibel level or noise above that the naturally occurring ambient level must be demonstrated before a statutory nuisance can be shown. The test for a statutory nuisance is the common law test....."

106. Mr Stigwood took the view that as the noise, in particular that caused by RCVs as they exit, was relatively short lasting it was that short period that needed to be concentrated on. He emphasised the need to consider the intrinsic quality of the noise, which he said was individual and the circumstances in which the noise occurred as relevant to the assessment of whether or not it amounted to a nuisance. He cited the WHO view that while sound levels may be measured by instruments

"...........the actual extent of noise nuisance cannot be measured in this way...Large scale population studies show that only one third of noise annoyance can be accounted for through exposure to varying sound levels. Non-acoustical factors, including personal factors such as noise sensitivity, and social factors can have as much effect as the sound level."

107. Looking at average noise levels over the longer period will not, in my judgement, adequately reflect the noise experienced over the short period in this case. Of all the readings I consider the LAmax reading the most relevant but here care must be taken because it is not, in my judgement the individual LAmax produced by 1 RCV which is important but the effect individual and cumulative of 22 or 23 RCVs exiting and then going their separate ways one after the other.

108. I prefer the approach adopted by Mr Stigwood and I accept his evidence. I accept his description of the noise. In fairness to Mr Jarman he accepted that the noise of the RCVs in relation to each of the premises was "clearly ...perceptible" as he put it.

The relevant law

109. Counsel have very kindly provided me with a large bundle of authorities and I have been referred to the chapter on Nuisance in Clerk and Lindsell (19th Edition). In the present case the noise complained of may amount to both a private and public nuisance. Neither counsel has sought to draw any distinction between the two on the facts of the case. Mr Diggins' argument that no nuisance arises from the use of vehicles on the highway in this case is grounded on the argument that "traffic" cannot cause nuisance and/or the use is within normal limits and therefore not unreasonable.

110. Private nuisance is a tort directed against a claimant's right to enjoy his land. Lawful use of land may constitute a nuisance where that use gives rise to an unreasonable interference with a claimant's use of his land. Typically, nuisance by noise arises when activities interfere with a neighbour's comfort and convenience in the enjoyment of his land. Whether or not noise is actionable in nuisance is a matter of degree and depends on the circumstances : on matters such as how loud it is, what sort of noise it is, where, when and how frequently it occurs, how long it lasts, the type of noise etc. Lord Millett in Southwark LBC v Mills [2001] 1AC at p 20c said :

"The law of nuisance is concerned with balancing the conflicting interests of adjoining landowners."

And in deciding where the balance lies it is necessary as Lawton LJ put it in Kennaway v Thompson [1981 QB 88 to allow for "a measure of give and take, live and let live".

111. A claimant's abnormal sensitivities have to be ignored. But the character of the neighbourhood is highly relevant. Planning permission covering an activity may be relevant but is not conclusive.

112. Once the court has concluded on this approach that nuisance is established then the authorities suggest that a court has little, if any, room for manoeuvre. A defendant will be liable, even though he may have exercised reasonable care : see Cambridge Water v Eastern Counties Leather [1994] 2 AC 264 2WLR 53 per Lord Goff at p 74E. Nor is it a defence that avoiding the nuisance would be uneconomic : Rapier v London Tramways [1893] 2 Ch 588. Likewise the fact that the activity complained of is for the public good is not per se a defence : Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 ; Dennis v Ministry of Defence [2003] EWCH 793 (QB).

113. Mr Diggins has maintained the plea that the claim fails as a matter of law because the noise/vibration arose when the RCVs were using the public highway and were therefore "traffic", specifically excluded by S6A of the Environmental Protection Act 1990 from liability for nuisance by noise under Section 79(1)(ga) of the Act. He drew my attention to Godfrey v Conwy Borough Council [2001] Env LR 38 where at para 68 Rose LJ stated the test for statutory nuisance was the common law test. Thus he invites me to conclude that traffic noise cannot be the subject of a common law nuisance.

114. Mr Hyam referred me to Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 where Veale J had to consider a problem similar to the present where within a number of allegations of nuisance arising from operation of a depot was that of noise generated by road tankers arriving and leaving the depot at night. At pp 699 - 700 he said :

"It is said by the defendants that since the public highway is for the use of everyone, the plaintiff cannot complain if all the defendants do is to make use of their right to use the public highway. I agree, if that is all the defendants have done. If a person makes an unreasonable use of the public highway, for instance, by parking stationary vehicles on it, a member of the public who suffers special damage has a cause of action against him for public nuisance. Similarly, in my view, if a person makes an unreasonable use of the public highway by concentrating in one small area of the highway vehicles in motion and a member of the public suffers special damage, he is equally entitled to complain, although in most cases concentration of moving as opposed to stationary vehicles will be more likely to be reasonable.

In the particular circumstances of this case I do not think it matters very much whether one regards the alleged nuisance by vehicular noise as a private or a public nuisance......"
.........................
In the present case the offending noise is partly in the depot before and as the vehicles emerge into the highway, and as they re-enter, and partly in the short stretch of highway immediately outside the entrance and exit to the depot, which is also immediately outside the plaintiff's house.....The noise is an interference with the enjoyment by the plaintiff of his house.......

The noise outside and inside the plaintiff's house is, in my judgement, attributable to the defendants mode of operation at their depot.....".

115. I do not accept Mr Diggins' submission. I do not consider that because activities cannot be the subject of proceedings for a statutory nuisance they cannot amount to a nuisance at common law. In my judgement Rose LJ was considering not particular types of activity but the approach courts should adopt to that type of activity. His reference to Murdoch v Glacier makes that clear. If this submission were correct Halsey could no longer be regarded as correctly decided so far as the decision was founded on the presence of tankers on the highway. I am not aware that anyone has suggested that. The decision has stood the test of time and its reasoning, in my judgement, remains sound and applicable to the present case. I do not consider the introduction of the concept of statutory nuisance has changed the common law.

116. I have been referred to a large number of authorities from which I have derived considerable assistance. But I consider it important to remember that most decisions in this field are decisions based on the facts of the individual case and on standards which vary from place to place and change with the passage of time. In particular, society has had to adjust more to traffic noise as our population has increased. I bear these matters in mind in evaluating the competing arguments in this case.

The remaining issues

117. The Claimants' pleaded case

The Particulars of Claim allege nuisance caused by noise and vibration in turn caused by the departure and return of the RCVs, compounded by the arrival of up to 60 staff in their vehicles when they arrive for work. Pleaded claims that planning permission for the depot was unlawfully obtained and for intimidation and harassment by the Defendants' employees were not pursued. The claims for nuisance based on noise created by the return of the RCVs and the Saturday RCV exiting and return are no longer persisted in.

118. The Defendants' pleaded case

The Defence denies nuisance but pleads that :
(i) any unacceptable noise or vibration is not actionable because any interference with the Claimants' use and enjoyment of their property is outweighed by the benefit to the public of prompt refuse collection;
(ii) the activities complained of cannot constitute an actionable nuisance since they all relate to traffic in a street which cannot be the subject of a statutory nuisance and the test for statutory nuisance is identical to the common law test ; 
The first of these is no longer pursued as a defence to Nuisance but is advanced as a matter to be considered on the question of remedy.

119. The questions that remain for decision were summarised by Mr Hyam as :

(i) Does the departure of a convoy of approximately 23 RCVs at 7am taken together with the arrival of up to 60 staff vehicles from about 6.30 am constitute a nuisance to the First and/or Second and/or Third Claimants. ;
(ii) Did the departure of approximately 23 RCVs at 6.30 am taken together with the arrival of up to 60 staff vehicles from about 6 am between 3rd April 2006 and 14th January 2008 constitute a nuisance to the First and/or Second and/or Third Claimants.
(iii) If yes to (i) should an injunction be awarded or should the Claimants' remedy be limited to damages.
(iv) If the claim be limited to damages, what should the award(s) be.

120. The nuisance alleged is said to comprise noise and vibration. I shall deal first with vibration.

Nuisance by Vibration

121. Mr Lamb said that the RCVs caused ornaments to rattle on window sills. Mr Bontoft's witness statement made no reference to vibration. Mrs Taylor‘s witness statement says "The house shakes and it sets the dog off barking and yapping". Mr Lukey's witness statement says "The noise and vibration are very disturbing, more so in the summer." Mrs Burney-Jones witness statement says "The noise and vibration caused by the lorries was awful" and that "The vibration and shaking of the bungalow is very noticeable". Her daughter Ms Burney-Jones, said in her witness statement that since the lorries had started using the Carlton Road exit the increase in noise and vibration had been quite significant : in evidence she said her mother's greatest concern was vibration and the manner in which the RCVs were driven.

122. Neither expert made any assessment of vibration. It is not mentioned in Mr Stigwood's report and Mr Jarman stated he did not consider it. Mr Stigwood said the evidence of ornaments rattling demonstrated transmission by air rather than ground but considered vibration did not add significantly to the case.

123. Mr Diggins drew my attention to the paucity of lay witness evidence on vibration and asserted that any vibration occurred when the RCVs were on the highway and was therefore not actionable in any event.

124. I consider the vibration is actionable even if it arises when the RCVs are on the highway, for reasons already given. There is no evidence of vibration affecting Mr Bontoft's bungalow. So far as Mr Lamb and Mrs Taylor are concerned I accept there is some vibration but adopt Mr Stigwood's view that it does not add significantly to the case.

Nuisance by Noise

125. At the heart of this case is whether or not noise arising when the RCVs exit has amounted to and still does amount to a nuisance. I propose to deal with Mr Hyam's questions (i) and (ii) together.

Did / does the departure of approximately 24 RCVs at 6.30 am (and later at 7 am) taken together with the arrival of up to 60 staff vehicles from about 6 am (and later from about 6.30 am) constitute a nuisance to the First and/or Second and/or Third Claimants ?

126. Mr Hyam submits that the departure of 22 or 23 RCVs, taking between them about 4 to 10 minutes to exit whether at 6.30 or 7 am is unreasonable as it gives rise to undue interference with the Claimants' comfort and convenience in what he says is a quiet village. It has disturbed their sleep, woken them up, prevented them going back to asleep, and if they were already awake meant they would lie there in anticipation of it. It has meant that in summer windows could not be left open. He says the earlier arrival of staff vehicles has compounded the nuisance.

127. In support he relies on his witness evidence, Mr Dodds' findings and opinions as expressed in his various memos and letters, and the expert evidence of Mr Stigwood, which he asserted realistically reflected the situation. He says that without the arrival of staff vehicles and without the departure of the RCVs Carlton Road could not be described as a busy road at that time of day with just over 1 vehicle a minute passing. He stresses that the noise levels during the exiting period increased substantially and the distinctive whine the RCVs emit. He rejects criticism that the Claimants are abnormally sensitive to noise pointing out that their complaints were supported by other witnesses and others concerned with the village such as the Parish Council and the Village News, and if they had now a heightened sensitivity to RCV noise it was as a result of constantly being exposed to that noise. He submitted that the fact that the Defendant's valuer considered the value of Tudor Lodge was adversely affected by the operation of the RCVs was good supporting evidence of the presence of a nuisance. He says the fact that planning permission was granted for the depot cannot justify the nuisance alleged.

128. Mr Diggins made points on the applicable law which I have already dealt with. 
He submitted that the best practicable means had been adopted in an attempt to minimise noise caused by the RCV operation namely rerouting the RCVs within the Park, the use of a banksman, and use of "state of the art " RCVs. He accepted that adopting best practicable means did not constitute a defence but suggested such were relevant on the question of reasonable user of the highway.

129. On issues of fact Mr Diggins made the following points :

130. Generally

(i) The neighbourhood is one where there have been historically "deafening levels of sound" from the military uses to which the park has been put. Further, the RAF Manby site has been designated as suitable for industrial/business use.
(ii) The character of the area had in any event changed following the grant of planning permission for the RCV depot at Meteor House.
(iii) All the sounds occur during what are officially recognised as daytime hours.
(iv) Lack of support for the claims. He asserts that although there are 60 residences in the vicinity of the exit few people have complained or apparently been willing to attend as witnesses. He points to the lack of any witness statement by Mr Taylor and Mrs Bontoft nor from Mrs Bontoft's daughter who owns the bungalow, that the Petition on its face related to the an extension for 8 more vehicles and that many may not have read it properly, like Ms Burney- Jones who so admitted.
(v) I should prefer Mr Jarman's evidence and his approach to that of Mr Stigwood.

131. As to staff vehicles arriving for work

(vii) It would be wrong to assume that those vehicles entering the Park, prior to the RCVs exiting are RCV staff. He says the Park is open for 24 hours and other employees will be arriving at that time. He suggests that local RCV staff will likely walk to work and the staff would likely arrive late rather than early as they are not paid for early arrival, and if so, vehicles arriving early are not likely to belong to RCV staff. He suggests that the Defendants cannot be expected to control any erratic behaviour by anyone arriving at that time. He suggests that arriving vehicles will not affect sleep.

132. As to the exiting RCVs

(viii) Best practicable measures have been employed to minimise sounds generated by RCVs : the route within the Park has been changed ; a banksman has been employed and "state of the art" RCVs, some modified further to reduce noise, are used.
(ix) Very few RCVs pass Mr Bontoft's bungalow (the numbers are listed in para 56 above) no more than 2 on Monday and Tuesday, only 7 on Wednesday, 9 on Thursday and none on Friday.
(x) The increased noise levels produced by the RCVs over ambient sound are the similar to those produced by passing other traffic, as shown by Mr Jarman. The Claimants' awareness of the RCVs is because they have become over sensitised to the sound RCVs make.
(xi) The additional contributions to ambient noise levels by departing RCVs are 0.9dB (Mr Bontoft), 3.2 dB (Mr Lamb) and 1.4dB (Mrs Taylor). These are minimal. 
(xii) Duration of the event is minimal, on average less than 5 minutes.
(xiii) The sound generated by the RCVs is emitted by all RCVs with such a gearbox / transmission and is at its loudest when the RCV is lifting the bins

Conclusions on Nuisance

133. I accept the evidence given by Mr Lamb, Mr Bontoft and the other Claimants' witnesses about the surprise they experienced when the RCVs first exited at 6.30 am. Mr Lamb's angry reaction was, I am satisfied entirely genuine and brought on by the sudden onslaught of noise he experienced that morning. Mrs Taylor's reaction as recorded in her witness statement

"I couldn't believe the noise. It was such a shock to see a long line of refuse lorries driving past my home. I immediately phoned mum and dad and said did you see and hear that I could not believe my eyes..."

rings true, fits in with the other evidence, and sums up the Claimants' case. 
134. The Defendants' reaction was a responsible one as has been their seeking, until recently, some solution to avoid the RCVs exiting on to Carlton Road. I am satisfied that neither the Claimants nor those who supported them in the village were being over demanding, nor that the Defendants were reacting merely to maintain good public relations. Each, I am satisfied, considered they had a genuine problem on their hands caused by the noise.

135. Thereafter there have been over reactions on both sides - complaints at the first opportunity on the Claimants' side and provocative behaviour by some of the RCV staff, but the underlying problem has remained : too many noisy vehicles exiting too close together in time and too early in the morning. This, I am satisfied, remained the situation after a banksman was appointed and actively controlled traffic so that the flow of the RCVs would have been more consistent ; and it remains the situation to this day when RCVs now exit at 7am and fit in to the traffic when able to do so. The changes introduced over time may have altered individual sound levels at various stages but I am satisfied the overall problem arising from excessive noise caused by too many RCVs exiting too close together too early in the day remains.

136. Whilst there may be increased traffic about at 7am compared with 6.30 am I am not satisfied that that makes any significant difference to the level of sound that can reasonably be expected to be tolerated : Mr Dodds' 6.30 am findings do not differ materially from later 7am findings. Nor do I pay great attention to the fact that initially the exiting was at about 6.30am and shortly thereafter and therefore during what is normally regarded by those setting standards as night time (11pm - 7am) and nowadays exiting at 7am and shortly after is in what is classed as daytime. Whilst 6.30 am is clearly within night time so assessed I cannot regard 7am and shortly thereafter in Manby as justifying different standards so far as the assessment of whether or not the noise constitutes a nuisance. In the present case all 3 complainants would normally have still been in bed at 7am : in the case of Mr Lamb and Mr Bontoft normally asleep ; in Mrs Taylor's case going back to sleep after her husband had left for work.

137. I am not impressed by the argument that the character of the neighbourhood is such that such that the noise ought to be accepted as reasonable. It is over 30 years since the RAF Manby closed. The local plan envisaged respecting the character of the local villages and the amenities of the residents. The plan identifying possible development of Manby Park identified an area west of the LCC depot as suitable for "Possible Haulage /Light Industry". Noticeably, that area, like the LCC area, used without complaint, fronted on to the B1200 and was a long way from Carlton Road.

138. I accept that there is some light industry in Manby 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.

139. I am satisfied that noise caused by the exiting RCVs has given rise to actionable nuisance by all 3 claimants. Mr Lamb's proximity to the exit has meant that the use of his property has been the most affected. Mrs Taylor's property is affected by the noise from the RCVs as they approach and accelerate past, likewise Mr Bontoft's bungalow. Mr Lamb's property is affected by all the exiting vehicles, Mrs Taylor's by varying numbers during weekdays and Mr Bontoft's bungalow by varying numbers, less overall than those affecting Mrs Taylor, and only from Monday to Thursday. But whereas Mrs Taylor has not suggested that she hears the RCVs as they exit, Mr Bontoft says, and I accept his evidence, that he can hear them as they troop across Manby Park before driving away.

140. In the normal course I consider that noise from the arrival of the staff would not be regarded as a nuisance except when an individual exhaust is extra noisy and that, if occasional only, would likely be accepted as part of the give and take of life. The remedy in such a case is prosecution of the driver or rider under the appropriate statutory provisions concerning exhaust noise. Here, early staff arrival has become associated with the RCV noise and inseparable from it in the ears of the Claimants. Without the early departures there would not be the earlier arrivals. To that extent the staff arrivals compound, as Mr Hyam puts it, the later nuisance. But I am not satisfied, that considered overall, noise arising from the staff arrivals can be said to give rise to a nuisance in its own right.

141. In my judgement each claimant succeeds in his claim for nuisance.

Is an injunction appropriate ?

142. The Particulars of Claim sought an injunction restraining the Defendants from: 
"carrying on or permitting to be carried on their business and activities in such a manner as to cause the said nuisance or any nuisance of a like kind".

Clearly the terms of any injunction would have to be considered in detail, were an injunction appropriate. In his closing submissions Mr Hyam did not suggest the court should prescribe how the nuisance should be abated, stating that was a matter for the Defendants but accepted that if an injunction were awarded, the Defendants should be given time to implement change.

143. Following the receipt of the complaints the Defendants investigated solutions which would avoid the need to use the Carlton Road exit. Three alternative routes were suggested. They are partly shown on a plan at Vol 1.3. Two involved exiting on to the B112, one via the LCC site, the other via a road just to the west of it. Both involved acquiring land. The third involved using the perimeter road of the old airport and then exiting on to the B112 at a place where the highway authority would first require the B112 to be straightened. Another alternative considered was moving the depot away from Manby Park.

144. The first 2 alternatives would involve compulsory purchase, should the existing owners not wish to sell. The third would involve acquiring rights of way over the perimeter road which would involve payment. All these options are, I was told, now on hold pending the decision in this case.

145. The principles which should guide the court in deciding whether to award an injunction in a case like this were authoritatively set out in the judgements in Shelfer v City of London Electric Light Co [1895] 1 Ch 287 helpfully summarised recently by Mummery LJ in Regan v Paul Properties DPF No 1 Ltd and others [2006] EWCA Civ 1319 ; 3 WLR 1131 at p 1137G as follows.

"(i) A claimant is prima facie entitled to an injunction against a person committing a wrongful act, such as a continuing nuisance which invades the claimant's legal right. 
(ii) The wrongdoer is not entitled to ask the court to sanction his wrongdoing by purchasing the claimant's rights on payment of damages assessed by the court.
(iii) The court has a jurisdiction to award damages instead of an injunction, even in cases of continuing nuisance ; but the jurisdiction does not mean that the court is "a tribunal for legalising wrongful acts" by a defendant who is able and willing to pay damages.
(iv) The judicial discretion to award damages in lieu should pay attention to well settled principles and should not be exercised to deprive a claimant of his prima facie right "except under very exceptional circumstances" .......
(v) Although it is not possible to specify all the circumstances relevant to the exercise of the discretion or to lay down rules for its exercise, the judgements indicated that it was relevant to consider the following factors : whether the injury could be estimated in money ; whether it could be adequately compensated by a small money payment ; whether it would be oppressive to the defendant to grant an injunction ;whether the claimant had shown that all he wanted was money ; whether the conduct of the claimant rendered it unjust to give him more than pecuniary relief ; and whether there were any other circumstances which justified the refusal of an injunction...".

146. Each of the Claimants has to be considered separately but so far as Mr Lamb and Mrs Taylor are concerned my conclusion is that in their cases there are exceptional circumstances, personal to them, which justify awarding damages rather than an injunction to which they are each prima facie entitled. They both own their houses but they have now moved and decided to live permanently in Skye. Their houses are for sale. They no longer need the personal protection an injunction would offer. Each is entitled to claim for past interference in the use and enjoyment of their respective properties and to an award representing diminution in the value of their respective properties which has now been agreed by expert valuers.

147. Mr Bontoft's position is different. He does not own The Bungalow. He still lives there and intends to end his days there. I was told his daughter owns The Bungalow. She is not a claimant and has taken no part in this action. Mr Bontoft has no claim in law for diminution in value. His only remedy is an injunction and/or damages for interference in his use and enjoyment of The Bungalow, past and future. He is 71 years old.

148. Of the 3 properties The Bungalow is probably the least affected overall by passing RCVs.. Only a limited number of RCVs pass by and only on 4 days per week. Mr Bontoft stated he could hear the RCVs when they left the depot and were still within Manby Park. However, the case has not been presented on the basis that noise levels sufficient to disturb sleep arise when the RCVs are started in the depot and proceed in Manby Park. The emphasis has been on excessive noise as they reach the gate and are on the highway. Thus, even if minded to award an injunction, on the evidence I could not properly award an injunction preventing use of the Meteor house depot by RCVs.

149. The decision in Mr Bontoft's case is a difficult one. But I have decided that justice will be done by an award of damages rather than awarding the injunction to which he is prima facie entitled. It is possible to value the injury in money and this is not a case where a substantial sum, by today's standards, would be appropriate. If I were to award an injunction Mr Hyam recognises that the Defendants would reasonably have to be given time to comply which means, in practice that obtaining an alternative exit could be at least 18 months away, small comfort for Mr Bontoft for that period.

150. In reaching this conclusion I also take into account the cost of implementing change. I do not necessarily accept the figure I was given - in excess of £200,000, since it has not been scrutinised before me, but the cost would likely be significant. At the same time moving the depot away from the Park could result in savings. The reality is that in such a comparatively small community as that served by the Defendants it is the local people who would have to pay.

The awards

The Law

151. In Hunter v Canary Wharf [1997] 2 WLR 684, Lord Hoffman said at p 36:
"I cannot therefore agree with Stephenson L.J. in Bone v. Seale [1976] 1 W.L.R. 797 when he said that damages in an action for nuisance caused by smells from a pigsty should be fixed by analogy with damages for loss of amenity in an action for personal injury. In that case it was said that "efforts to prove diminution in the value of the property as a result of this persistent smell over the years failed." I take this to mean that it had not been shown that the property would sell for less. But diminution in capital value is not the only measure of loss. It seems to me that the value of the right to occupy a house which smells of pigs must be less than the value of the occupation of an equivalent house which does not. In the case of a transitory nuisance, the capital value of the property will seldom be reduced. But the owner or occupier is entitled to compensation for the diminution in the amenity value of the property during the period for which the nuisance persisted....
There may of course be cases in which, in addition to damages for injury to his land, the owner or occupier is able to recover damages for consequential loss. He will, for example, be entitled to loss of profits which are the result of inability to use the land for the purposes of his business. Or if the land is flooded, he may also be able to recover damages for chattels or livestock lost as a result. But inconvenience, annoyance or even illness suffered by persons on land as a result of smells or dust are not damage consequential upon the injury to the land. It is rather the other way about: the injury to the amenity of the land consists in the fact that the persons upon it are liable to suffer inconvenience, annoyance or illness.
It follows that damages for nuisance recoverable by the possessor or occupier may be affected by the size, commodiousness and value of his property but cannot be increased merely because more people are in occupation and therefore suffer greater collective discomfort. If more than one person has an interest in the property, the damages will have to be divided among them......
Once it is understood that nuisances "productive of sensible personal discomfort" do not constitute a separate tort of causing discomfort to people but are merely part of a single tort of causing injury to land, the rule that the plaintiff must have an interest in the land falls into place as logical and, indeed, inevitable."
The italics are mine.

152. Theoretically the value of the loss of amenity should be consistent with the value of the blight to the property. In this case that is difficult to achieve since the blight has been valued by a compromise figure based on 10% of the value of the property. Mr Hyam has sought damages on the following basis should I not award an injunction :
Mr Bontoft : damages on the basis of an annual loss of utility/amenity assessed at past £3,000.00 pa for the past 2½ years and on the basis of a multiplier, which he puts at 11.76 for the future. Thus he seeks an award of £7,500.00 for the past and £35,280 for the future, totalling £42,780.00.
Mr Lamb : damages for past nuisance on the basis of an annual loss of £4,000.00 pa and damages for future loss capitalised by reference to the blight on his house agreed by the experts as £26,250.00. Total £36,250.00. 
Mrs Taylor : damages for past nuisance on the basis of an annual loss of £3,000.00 pa and damages for future loss capitalised by reference to the blight on her house agreed by the experts as £7,000.00. Total £14,500.00.

153. Mr Diggins put forward no figures nor did he dissent from those put forward by Mr Hyam.

154. So far as past loss is concerned the figures put forward by Mr Hyam do not appear unreasonable and I propose to award them. £4,000 represents £15.38 per day on the basis of 5 days loss for 52 weeks pa. £3,000.00 pa represents £11.54 per day on this basis.

155. Less RCVs pass The Bungalow than The Sycamores but Mr Bontoft will also be aware of the RCVs progressing across Manby Park towards the gate whereas Mrs Taylor will only hear them as they approach and pass her house. Whilst the noise generated in Manby Park may not reach nuisance levels, for Mr Bontoft it is an intrinsic part of the whole process which renders the whole experience comparable to that suffered by Mrs Taylor. I do not propose to distinguish between them so far as assessment of past loss is concerned.

156. So far as Mr Bontoft's future loss is concerned, I accept that he will live in The Bungalow for the rest of his life but I am not satisfied that the proper approach in this case is to calculate the future loss is by the multiplier/multiplicand approach. I am not in a position accurately to estimate his expectation of life nor can I assume that the nuisance will continue for the rest of his life, nor that, if it does, it will continue to have the same effect on him. I propose therefore to adopt a broad brush approach to this head and award him £15,000.00.

157. There will therefore be judgement for Mr Bontoft in the sum of £22,500.00, for Mr Lamb in the sum of £36,250.00 and for Mrs Taylor in the sum of £14,500.00.

158. I will hear any submissions on interests and costs.