Public nuisance — Smell from cooking plant for pigswill — Restraining action — Undertaking not to commit nuisance — Court having jurisdiction to amend terms of undertaking — Whether facts justifying court in discharging undertaking or varying terms — Appeal allowed
The respondent’s pig-rearing and his use of a cooking plant to make pigswill led to an action by the appellant council to restrain him from causing a public nuisance by smell. The appellants were acting under section 222 of the Local Government Act 1972 in order to enforce what would otherwise have been rights enforceable by neighbours.
Attempts to settle the matter out of court failed. At the end of a five-day trial, the respondent gave an undertaking not to cause or permit public nuisance at the premises “whether by himself, his servants or agents or otherwise howsoever” as a condition of an adjournment to allow time for works to be undertaken under plans that had been submitted for approval.
The undertaking was not honoured and the appellants applied to commit the respondent for contempt. However, because the respondent had obtained planning permission for a new cooking plant, which, it was hoped, would put an end to the nuisance, the court did not order the committal. The respondent’s subsequent application to change the cooking plant from agricultural to industrial use was refused and complaints continued to be made about the smell emanating from the cooking plant.
Committal proceedings were restored and the respondent was fined for breaching the undertaking. However, the judge was concerned that the undertaking was not limited in time and he varied its terms. He concluded that the outcome of the planning proceedings would, and should, supersede the undertaking in respect of nuisance. He therefore limited the undertaking to expire on 1 April 2007, to allow the planning proceedings to be concluded, and deleted the words “or otherwise howsoever” as being too imprecise and uncertain. The appellants appealed.
Issues arose, inter alia, as to whether: (i) the judge had been right to impose a time limit on the undertaking and the discharge of the undertaking; and (ii) there was an adequate basis for varying its terms.
Held: The appeal was allowed.
(1) The judge had misdirected himself and had proceeded incorrectly, given the absence of sufficient justification for limiting the effect of the undertaking in time. On the facts, the stringent standard required to alter an undertaking that had been given as an alternative to, and having the same effect as, an injunction had not been met. The judge had failed to pay adequate regard to the fact that the undertaking had been given at the end of proceedings that might otherwise have resulted in a permanent injunction.
It was not relevant to the court’s consideration that the respondent was acting in person because he could have taken advice before giving a final undertaking. Moreover, he had not been able to show that, either because of changed circumstances or by authorisation under the Environmental Protection Act 1990, the appellants and local residents would no longer require the undertaking on a specified date: Kensington Housing Trust v Oliver (1998) 30 HLR 608 applied; Allen v Gulf Oil Refining Ltd [1981] AC 1001 considered.
(2) The judge had been wrong to conclude that words should be removed from the undertaking. It was not an appropriate exercise of a judge’s jurisdiction at first instance to change the wording of a previous order given on a final basis unless it could be justified by circumstances such as a change of relevant facts.
The language of the undertaking was not inappropriate, but, even if it were, the proper course would have been to appeal and not to reconsider the matter at first instance.
David Lamming (instructed by Birketts, of Ipswich) appeared for the appellants; Andrew Marsden (instructed by Ashton Graham, of Bury St Edmunds) appeared for the respondent.
Eileen O’Grady, barrister
