Cottages next to farmyard sold for conversion to home–Farmer shortly afterwards begins to use yard for keeping pigs–No principle by which he may not do so, but some nuisance from dung-heaps etc established–Damages of £300
This was a
claim by Mr Kenneth Milner and his wife Mrs Hilda Milner, of Hillsley,
Wotton-under-Edge, Gloucs, against Mr John Douglas Spencer, of Hillsley Farm,
Hillsley, for an injunction to restrain a nuisance arising from the defendant
keeping pigs, and for damages.
Mr R White
(instructed by Lawrence & Co, of Bristol) appeared for the plaintiffs, and
Mr P L R Mitchell (instructed by Field, Fisher & Martineau, agents for A E
Smith & Sons, of Northwich) represented the defendant.
Giving
judgment, OLIVER J said that Hillsley was in the midst of a predominantly
agricultural area. The plaintiffs’ house had previously been a row of cottages
owned by the defendant, who sold them to the plaintiffs. Abutting the
plaintiffs’ property was a range of stone-built sheds and a yard. The nearest
point of the sheds to the plaintiffs’ wall, in which there were two windows,
was 10 ft away. The plaintiffs contended that up to the date of the conveyance,
July 1 1970, the yard was not used for housing livestock, but after that date
pigs were kept there and heaps of manure and straw appeared. The manure
continued to be stacked in the yard until mid-1973, one heap being five ft high
and level with the top of the wall separating the yard from the plaintiffs’
property. Smell and flies, the plaintiffs said, generated by the manure heaps
were of ‘plague proportions’ and became so bad that, after complaint, the local
council served an abatement notice on the defendant under section 93 of the
Public Health Act 1936, requiring him to stack the manure at such distance from
the plaintiffs’ home as not to create a nuisance. Stacking then began 70-80 ft
from the plaintiffs’ property, which the plaintiffs contended caused little
amelioration, because the heap was allowed to remain for a long time. From 1974
a new system was adopted, the dung being spread in shallow heaps over an area
of about 1,200 sq ft which was left for months, creating an appalling smell
which the plaintiffs claimed prevented them from moving into their house until
August 1975, after the start of the action, since when matters had improved. It
was on this basis of loss of occupation that the plaintiffs claimed damages,
from the time when conversion work on the old cottages was completed in
September 1973 until August 1975.
The plaintiffs
submitted (1) that apart from common law nuisance, the keeping of pigs in the
sheds was a derogation from the defendant’s grant; (2) that the keeping of pigs
within such proximity to their dwelling was a nuisance because of the risk of
injury to health; and (3) if that was wrong, that the keeping of pigs in such
numbers and manner as the defendant did, was a nuisance. On (1), a person who
bought a residence adjoining a farmyard bought it as it was, and the mere
purchase of a house as a residence could not inhibit the use of the adjoining
yard for the purpose for which, in an ordinary and reasonable contemplation, a
farmyard was likely to be used. The keeping of livestock in a yard of the sort
in question, obviously forming part of the farm, was so common and ordinary
that the court could not accept a proposition that the mere non-use at the time
of a sale of an adjoining residence could impart some negative obligation
inhibiting the use of the yard thereafter for any customary and normal
agricultural purpose. On the evidence it was clear, despite a contrary
contention by the plaintiffs, that there was no implication in conversation
between the plaintiffs and the defendant of any obligation by the defendant not
to use the yard for livestock. The plaintiff’s claim on that ground must be
rejected.
On (2), it
would be fanciful to suggest that the mere presence of pigs in reasonable
numbers in close proximity to a house constituted a nuisance by smell, or that
the keeping of such numbers of pigs in the sheds was a substantial and unreasonable
risk to the health of the plaintiffs. If one lived next door to a farm, it was
no use applying to the volume of noise, the purity of the air and the freedom
from insect life, the standards of the most select suburb of Bournemouth. The
plaintiffs bought a house next door to a farmyard. The defendant was using the
yard for the lawful purpose of keeping livestock, which must smell, make a
noise and attract flies. The presence of those inevitable concomitants was not
something of which, in reasonable degree, the plaintiffs could complain. In
those circumstances, there could be no injury to health, and that was backed by
the evidence. Under head (3), however, there had, in his (Oliver J’s) opinion,
been a nuisance during certain periods. It could not be said that the leaving
of heaps of dung in the yard, which according to the evidence created a
prolonged and intolerable stench a few feet from the plaintiffs’ residence, was
a normal course of good husbandry. He (his Lordship) was satisfied that on
three occasions in the spring and autumn of 1973 and 1975 the pig-keeping had
constituted an actionable nuisance.
The house had
not been occupied, except on a temporary basis, until after the start of the
action, but the plaintiffs’ failure to occupy could not be attributed solely to
the smell. There was evidence that in the summer of 1974, the house was
incomplete, though capable of being inhabited. He (his Lordship) considered
that it was the generally quarrelsome atmosphere between the plaintiffs and the
defendant, rather than the smell, which prevented the plaintiffs from moving
in, although the smell in the first half of 1975 was enough to deter all but
the hardiest from moving into the property. The plaintiffs were nevertheless
entitled to some damages for discomfort in being kept out of the property. In
this case the period was from eight months to two years, and damages would be
assessed at £300.
The question
of injunctions was stood over for discussions between the parties. The
defendant was ordered to pay the costs of the action except in respect of that
part of the plaintiffs’ case which failed.
