Thornhill & others v Nationwide Metal Recycling Ltd

Transcript date:

Thursday, March 31, 2011

Matter:

Court:

Court of Appeal

Judgement type:

Permission to appeal

Judge(s):

Ward LJ

Transcript file:

Case No: A2/2010/2610
Neutral Citation Number: [2011] EWCA Civ 659
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE SIMPKISS)

 

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 31 March 2011

Before:

LORD JUSTICE WARD
- - - - - - - - - - - - - - - - - - - - -

Between:

THORNHILL & ORS
Appellant
- and -

NATIONWIDE METAL RECYCLING LTD & ANR

 

Respondent

- - - - - - - - - - - - - - - - - - - - -

(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)
- - - - - - - - - - - - - - - - - - - - -
Mr Jeremy Hyam (instructed by Richard Buxton Environmental and Public Law) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

- - - - - - - - - - - - - - - - - - - - -
Judgment

(As Approved by the Court)

Crown Copyright © 
Lord Justice Ward:

1. This is a renewed application for permission to appeal against the orders made by HHJ Simpkiss sitting as a judge of the High Court on 22 June 2010. He found that a nuisance had been committed by the defendants in the conduct of their business crushing motorcars and noisy things like that, but that that nuisance had abated following the erection of a fence between the respective properties. He was not willing to find that the nuisance continued in the three rooms on the third floor of the building occupied by Mr Foulkes partly as his study and partly as bedrooms for his children.

2. The description of those rooms is contained in paragraph 73 of the judgment, which I need not read, but essentially explains that the study had an exit onto a narrow balcony with French windows giving the potential for up to six square metres of open window. The judge found in paragraph 129 of his judgment that the activities on the defendants on the site prior to the erection of the barriers did constitute a nuisance but it was only marginally over the threshold. As for the top floor, he found in paragraph 131 that the level of noise inside those rooms is much reduced and the noise level outside is reduced. It is only in the second claimant's study that the reduction is minimal and this can be reduced by closing his windows when the crane is operating.

3. The submission is that the judge has fallen into error partly through confusing the nature of nuisance which is a tort about the damage to property with a personal injury type claim where the essence is the interference with personal discomfort. Mr Hyam, who appears on the applicant's behalf, points to the difficulty that would be encountered in selling this property and having to explain to a prospective purchaser that you cannot occupy the top floor rooms without keeping the windows closed. That would amount to a diminution in the value of the property and that is actionable nuisance.

4. The principle of live and let live requires a landowner to show the same consideration for his neighbour as he would expect the neighbour to show for him and the submission is that this interference with the use of the property is not a trifling inconvenience which has to be suffered in the interests of give and take, live and let live.

5. I am far from confident that the appeal will necessarily succeed but I am persuaded that it gives rise to an arguable point, that there is therefore a real prospect of success, as those words are defined, and permission should be granted. I am fortified in that conclusion by learning that Laws LJ has already given permission to appeal the order for costs which will require an examination of the facts of this case and this further appeal will not add substantially to the length of that hearing.

6. So for that other reason, namely the compelling reason that the whole facts should be looked at in the round, I give permission to appeal. A court of three can include a High Court judge and, being linked as it must be with the appeal in case number 2588, these matters must be heard together. A time estimate of one day is generous but if their Lordships have an extra few minutes to consider the next day's work that will not be a bad thing. So you do have permission.

Order: Application granted