Case No: A2/2012/2754
Neutral Citation Number:  EWCA Civ 396
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF DISTRICT REGISTRY
(MR JUSTICE WYN WILLIAMS
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Monday, 18 March 2013
LORD JUSTICE ELIAS
THOMAS AND ANOTHER Respondents
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MERTHYR TYDFIL CAR AUCTION LTD
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(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr William Upton (instructed by Burges Salmon) appeared on behalf of the Applicant
Mr Paul Stookes (Solicitor Advocate) (of Richard Buxton, Environmental and Public Law) appeared on behalf of the Respondents
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Lord Justice Elias:
1. 1. This is an application for permission to appeal against a decision of Wyn Williams J, who, in a trial at Cardiff District Registry in two days last July, concluded that the appellants, or the proposed appellants to this appeal, had carried out an actionable nuisance in the way in which they conducted their business.
2. 2. The appellants submit that the judge erred in various ways in reaching that conclusion. The appeal was rejected on paper by Richards LJ. I have come to the view, not without real reluctance, that the appellants are entitled at least, if they think it is still prudent to do so, to pursue the appeal to this court.
3. 3. The background, very briefly, is that the appellants carried out business as car auctioneers occupying an area of land in Dowlais in South Wales. The respondents, the claimants below, own the property adjacent to a lower section of the appellant's business area. The use of that lower yard was principally for storing cars prior to their sale in an auction on the premises. Cars were stored there and they were also valeted there. The complaint related to what was allegedly both noise and nuisance from noxious fumes, although the judge did not find any fume nuisance, and so the only issue now relates to noise. The claimant said it had gone on for over ten years, although their claim was limited by the limitation period from 2004 to 2010. The judge awarded general damages of £9,000.
4. 4. There are three broad grounds on which the judge's conclusion is challenged. First, it is said that he erred in assessing the character of the locality and whether the appellant's use was reasonable in that context. Second, he failed to apply an objective standard to the respondent's evidence when determining whether or not there was an unreasonable interference with the claimant's property. And third, he was wrong in his assessment of certain witness evidence.
5. 5. As to the issue in relation to the locality, the judge concluded it was still much the same as it had been in 1997 when planning permission was granted and he referred to the planning officer's report written at the time. The main complaint here is that it is said that the judge did not appreciate properly the nature of the business activity that had historically been going on in the lower yard even prior to its use in accordance with the planning permission since 1997. It is submitted that that was an important element in assessing the nature of the locality to which the judge had given insufficient weight.
6. 6. I would not have been minded to give permission on that ground alone, but, as I will indicate, it interlinks to some extent with the one ground on which I think there is an arguable case, so I would permit it to be argued.
7. 7. Secondly, in relation to whether or not the judge applied an objective test, in my view he did. The complaint here is that, at paragraph 72 of his judgment, he said this:
"In particular I have considered whether the Defendant was correct in his assertion that the Claimants simply cannot tolerate any degree of interference with their residential amenities."
8. What is said by Mr Upton, counsel for the appellant, is that that was never the position of the defendant. They said that the claimant could not tolerate what would be a reasonable degree of interference given the nature of the locality.
9. I do not think that that misstatement by the judge, as I think it was, is of any materiality. In my view, he plainly applied an objective test as is clear if one looks at the fact that he set out the traditional test for determining how to establish nuisance, reciting passages from Barr v Biffa Waste Services Limited  2 All ER 380; that he then properly described his task at paragraph 62 as being to show that there was undue interference with the claimant's "convenient enjoyment of their land"; and that there are other passages which also support the view that it was an objective test that he was applying.. For example, he referred at paragraph 74 to the evidence of the claimant's sons, which supported the notion that there was unacceptable noise. The judge plainly is not simply saying that any interference is going to be enough.
10. The third ground on which I reluctantly come to the conclusion that I should grant permission relates to the way in which some of the evidence was dealt with. Because the case was limited to two days it was originally going to be four to five -- it was accepted that it was not necessary to call all witnesses to give evidence. Their statements would suffice without cross-examination. There were some seven or eight witnesses whom the appellants wished to rely upon below whose evidence was to the effect that they were not at all inconvenienced by any noise or fumes on the premises. That evidence went in in the usual way. I am told that the claimant's case in relation to that evidence was that these witnesses were too far away from the source of the noise in the lower yard since they were really adjacent to the upper yard, and therefore their evidence could not count for much. That is not exactly how the judge dealt with it, however. He said in paragraph 54, after dealing with three witnesses who did give evidence, two of them supporting the appellants, the following:
"I attach little weight to the statement of the other residents. They were untested by cross-examination."
11. 8. It seems to me, with respect to the judge, that is not an entirely fair way of dealing with that evidence. What Mr Upton says is that if that evidence had been admitted it could have changed the judge's perception, both of the nature of the locality and of the question of whether, objectively viewed, there was too much noise. It might have influenced the way in which he assessed the evidence of the claimants and dealt with the records they kept if this quite extensive evidence adduced by these other neighbours had been fully and properly considered. I have to say I have some real doubts as to whether, given the way in which the judge presented his conclusions, it would have made very much difference, but I cannot say that there is an unarguable point that there was material that may not have been properly considered by the judge and which could arguably have made a difference had it been properly considered. It links in to some extent with the other two grounds, and so I give permission in relation to them as well.
12. 9. There is one final point in relation to Mr Davies, who was a key witness for the appellants below. There is a criticism of the way the judge dealt with his evidence. The judge indicated that he did not find Mr Davies a very satisfactory witness and cited certain areas where he had not been open with the court. It is said that this was wrong because the examples did not relate to the period under consideration. I do not think there is anything in these criticisms and think they misunderstand what the judge was saying. The judge was clearly of the view that this witness was not willing to be frank and open about certain matters and that, in the judge's view, tainted the evidence he gave. That seems to me to be a perfectly proper conclusion for the judge to have reached and was well open to him, and I do not think that permission should be allowed in relation to that point at all.
13. 10. So I grant permission principally on the one ground, which is arguably the failure to have proper regard to certain evidence, but it does interlink with the other two grounds for which I give permission as well.
14. 11. But, as I have indicated, I do so with a heavy heart given the amount involved and the costs of an appeal. Mr Upton says that they are concerned about the future as well as the past in pursuing this appeal, and I thought it right at least to grant permission, but the applicants may want to think very carefully as to whether it is a sensible use of time or resources. But that is a matter for them.
12. Order: Application granted