Bone v Seale
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stephenson |
| Judgment Date | 26 November 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J1126-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 November 1974 |
[1974] EWCA Civ J1126-2
Lord Justice Stephenson
Lord Justice Scarman
and
Lord Justice Ormrod
In The Supreme Court of Judicature
Court of Appeal
MR. R. N. TITHERIDGE Q. C. and MR. M. MARK (instructed by Messrs. V. H. Baker & Co., Solicitors, London) appeared on behalf of the Defendant (Appellant).
MR. J. A. R. FINLAY Q. C. and MR. A. BOYLE (instructed by Messrs. Atkins, Walter & Locke, Solicitors, Dorking) appeared on behalf of the Plaintiffs (Respondents).
This is an appeal from a judgment of Mr. Justice Walton, given on 19th October 1973, by which he granted an injunction restraining the defendant, Mr. Seale, "from doing (whether by himself or by his servants workmen or agents or any of them or otherwise howsoever) the following acts or any of them that is to say carrying on or permitting to be carried on upon Holmes Farm, Betchworth, Surrey, the business of farming so as or in such manner as by the discharge of noxious or offensive vapours or smells or otherwise to cause a nuisance or injury to the plaintiffs or either of them or to their said properties respectively known as 'Little Coombe', Betchworth aforesaid and Ronda, Pebble Hill Road, Betchworth aforesaid but the operation of this injunction is to be suspended until after 18th January 1974. And it is ordered that the defendant do pay to each of the plaintiffs the sum of Six thousand three hundred and twenty four pounds and sixty six pence being damages at the rate of Five hundred pounds per annum from 24th February, 1961 down to and including 19th October 1973", and he ordered the defendant to pay the plaintiffs the costs of the action.
The history of this matter is a long one, but I think it can be shortly summarised; in 1946 the plaintiff Bone went to live at Little Coombe, Betchworth; about ten years later, in January 1954, the plaintiff White went to live at Ronda in the same village. In 1955 the defendant, Seale, bought Holmes Farm. Holmes Farm lies just to the north west of Mr. Bone's house, Little Coombe and to the south east of Mr. White's premises, Ronda. There is, between Mr. White's premises and Holmes Farm, a small house, or cottage, called Whiteholm, but he is very nearly as near to the farm buildings of Holmes Farm as is Mr. Bone. Holmes Farm was run by the defendant after his arrival in 1955 as a pig farm, and when he first came there the evidence is that he had something like 300 pigs, not more.
The farm included a large field, Ordnance Survey No. 2373, to the east of Ronda and to the north and north east of Little Coombe.
From a fairly early period, as the judge found, Mr. White and Mr. Seals got across one another; it appears that the reason why they got across one another was principally, if not entirely, the smell that came from the defendant Seale's farm.
As early as 1956 Mr. Bone and Mr. White, the plaintiffs in thie action, joined with a Mr. Ribchester, who lived across the other side of the road at the premises then called Qusintways, but now called pebble Hill Cottage, due west of the defendant's piggeries at Holmes Farm, in an action against the Defendant for an injunction to restrain him from committing a nuisance by the smell of his pig farm, and for damages. Mrs. Ribchester was substituted for Mr. Ribchester as their co plaintiff, apparently because she was the owner of Quaintways, and Mr. Ribchester has died since that action was brought.
The complaint made in that action was that in particular the defendant had caused "such discharge of vapours and smells … by the following acts or some or one of them that is to say:… (ii) storing or permitting to accumulate pig dung or manure on the said farm; (iii) boiling pig swill on the said farm" or in the buildings, so as to cause annoyance and discomfort to the plaintiffs. There was also an allegation that the noxious vapours or smells coming from those sources were dangerous to the health of the plaintiffs and occupiers of those properties. That action never came to trial; it was settled, and settled on terms which are of some importance.
By a Consent Order before Mr. Justice Danckwerts, dated 17th November 1959, the court ordered the defendant to pay to the plaintiffs, all three of them, £200 in all by way of damages in fullsatisfaction of all claims arising in the action; that order was made up on the plaintiffs and defendant by their counsel consenting to the order and upon the defendant, by his counsel, undertaking three things that he would not do; undertaking that he "will not (whether by himself or by his servants or agents or any of them or otherwise howsoever) do the following acts or any of them that is to say (1) store pig manure on the defendant's property Holmes Farm, Betchworth, Surrey at any point within 100 yards of the present boundaries of the properties known as 'Little Coombe' … 'quaintways', … and 'Ronda' … Betchworth aforesaid" and "(2) boil pig feed stuffs on Holmes Farm aforesaid otherwise than with the use of either (a) an Airwick apparatus, (the same to be maintained in effective working order) or (b) some other effective apparatus or equipment and (3) conduct any pig farming and other farming carried on at Holmes Farm aforesaid except in such manner as and after taking such steps as may be reasonably necessary to minimise the discharge of vapour and smells therefrom".
Those three undertakings and that email sum of damages was the agreed result of that first action and, as the learned judge said in his judgment, the effect of that was that the plaintiffs won the war, but they lost the peace treaty and lost it badly. They lost it badly because the smell, putting the matter shortly, continued to be offensive to the plaintiffs; and indeed, they took legal advice and took the defendant to court to commit him to prison for breach of the first undertaking. As the judge pointed out, they were in obvious difficulty in proving a breach of the second undertaking, because the defendant was using Alamast, which was as effective or ineffective as Airwick, but they had no such difficulty in proving a breach of the first undertaking; indeed, the defendant admitted the breach of the first undertaking and...
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