Nuisance from fat-rendering factory–Numerous extensions to enable company to install machinery, etc, must now cease–Writ of sequestration to issue despite submissions to do with recent difficulties in the animal market
This was an
appeal by A H Taylor’s Butchers Hide Skin Fat & Wool Co Ltd, defendants in
an action brought by the respondents, Cheltenham Borough Council, for nuisance
caused by smell from a fat-rendering factory in Arle Avenue, Cheltenham, from
an order of Brabin J at Winchester on December 10 1974 directing that a writ of
sequestration previously made but ordered to lie in the office should issue on
January 2 1975.
Mr P Fallon QC
and Mr D Hawkins (instructed by Lewin, Gregory, Mead & Sons, agents for
Ivens, Thompson & Green, of Cheltenham) appeared for the appellants, and Mr
A Cripps QC and Mr A Fletcher (instructed by Sharpe, Pritchard & Co, agents
for the town clerk) represented the respondents.
Mr Fallon said
that the case came originally before Brabin J at Exeter in 1971, when the
defendants gave an undertaking which was suspended until November 1 1972.
Subsequently the council applied for a writ of sequestration on the ground that
the defendants were in breach of the undertaking. In October 1973 the judge
ordered a writ to issue but to lie in the office until April 30 1974. On April
5 1974 the defendants applied for an extension of time in respect of the writ
until August 1 1974. After a further hearing at Lewes on July 26 1974 it was
agreed that the writ would lie in the office, not to issue until further
application or until discharge of the writ. On December 10 1974 the council
sought enforcement of the writ. The defendants contended that they should be
granted further time on the ground that by the end of July 1974 they had
completed the installation and trials of further equipment designed to prevent
smell, and that in view of the dilemma in which they were placed in October
1974 by reason of an unprecedented and unforeseeable increase in the number of
cattle killed in abattoirs served by the company, it was unreasonable not to
give them a further extension
ordered issue of the writ.
The defendants
were an old-established fellmongering business. They had been in many ways
pioneers in the development of a method of dealing with smells arising from the
fat-rendering part of their premises. It was accepted that it would be wrong
for the company to go on creating obnoxious smells from the factory, but he
(counsel) submitted that even so it would be unfortunate to bring the knife
down at this time. When the matter came before Brabin J in October 1973 the
company had spent nearly £78,000 on remedial equipment. A pilot burner for a
catalytic-burner type of air purification system had been installed the
previous May. It was thought that installation of the system would cost
£16,000, bringing the total amount expended to £93,000. Before the matter came
before the judge again in July 1974, he saw all the apparatus that had been
installed and was being installed, and it was decided that the writ of
sequestration should continue to lie in the office. The council’s case when the
matter was brought back before the judge last December was that an
unprecedented situation had been disclosed the previous October, when six
confirmed statutory nuisances had been detected. The council maintained that it
had now to be assumed that there was no cure for the smells complained of.
While it would certainly be wrong to allow this sort of smell to be
perpetuated, there was now a system which appeared to control effectively
smells produced from this type of factory. The difficulty had been that at the
end of 1974 there was an unprecedented amount of killing of animals. Calves
were being sold at 50p each. There was so much material that it was impossible
to stop cooking the offal, which had to be dealt with exceptionally quickly. It
should be added that throughout the case the judge had formed a very good
opinion of the company’s managing director, Mr M J Tupper, who had been anxious
to dump the offal and had tried to get permission to do so. The simple question
was whether or not it was reasonable and right in the circumstances that the
company should be given extra time to take them out of a difficult and
exceptional period.
Counsel for
the respondents were not called on to argue.
Giving
judgment, CAIRNS LJ said that Brabin J had dealt with the case throughout with
the greatest care and sympathy for the company, and there were no grounds for
saying that he had not properly exercised his discretion. The company now
sought extra time until the end of April, but the court had no material before
it to justify any such further degree of leniency.
Agreeing,
ROSKILL LJ said that counsel for the company had urged, ‘Give us to the end of
April. If we cannot get it right by then, we surrender.’ But seven or eight weeks had elapsed since
Brabin J had made his order, and the court did not know in any detail what had
happened since. He (his Lordship) felt absolutely certain that, had the
position really radically improved, the court would have had a mass of
affidavit evidence and an application to call fresh evidence. Instead, the
court was left for all practical purposes with no more evidence than that given
before Brabin J. On that evidence his order was manifestly right. It would have
been lamentable if he had not made that order after so long a delay.
Also agreeing,
BROWNE LJ said that he found it impossible to say that the defendants had now
solved the problem and that no further nuisances had been or would be caused.
It was more than three years since the undertaking was given, and he could see
no justification for any further extension of time.
Mr Fallon
said that so far as the company was concerned, the fat-rendering part of its
plant would now be closed at 12 noon on March 1. As a result of the court’s
judgment, the company were prepared to offer an undertaking to that effect if
the council would not pursue the right of sequestration.
Mr Cripps
urged the court merely to dismiss the appeal and not to deal at this stage with
the question of an undertaking, which could give rise to complications. The
council would not take any step which was not sensible and necessary. If in
fact the company shut down their factory satisfactorily. It looked as though
that might be an end of the matter.
Cairns LJ said
that the appeal would simply be dismissed. If it was necessary to make any
application for the discharge of the writ of sequestration, there was no need
to come back to the court. The application could be made to Brabin J, who
ordered the issue of the writ. The appellants must pay the council’s costs.
