Colin & Sandra Thomas v Merthyr Tydfil Car Auction Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 08 October 2012 |
| Neutral Citation | [2012] EWHC 2654 (QB) |
| Court | Queen's Bench Division |
| Date | 08 October 2012 |
| Docket Number | Case No: 0CF90256 |
[2012] EWHC 2654 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Wyn Williams
Case No: 0CF90256
Jeremy Hyam (instructed by Richard Buxton Environmental & Public Law) for the Claimant
William Upton (instructed by Burges Salmon) for the Defendant
Hearing dates at Cardiff Civil Justice Centre: 23 & 24 July 2012
Approved Judgment
The Claimants own the house and surrounding land known as Rhosbren Fach, Llewellyn Street, Dowlais near Merthyr Tydfil. They acquired the land upon which the house is built in January 1989, built the house in the months that followed and began living in it in August 1989
The Defendant operates a business upon land near the Claimants' home. It holds auctions at which many kinds of vehicles are sold. The business began in the late 1970s on an area of land adjoining Pant Road which had formerly been part of a railway cutting. That area of land was some way to the north of the land upon which the Claimants were to build their home. In these proceedings it has been referred to as "the upper yard" or "the top yard".
The Defendant's business flourished. It began to consider expansion on to an area of land immediately adjoining the upper yard and to the south thereof. This area of land is referred to as "the lower yard". In about 1995, the Defendant began to carry out part of its business activities on the lower yard. This area of land was close to the land upon which the Claimants had built their home. Almost immediately conflict ensued between the Defendant on the one hand and the Claimants and other residents of the area on the other.
These proceedings were issued on 8 June 2010. The proceedings were issued because the Claimants allege that since about 1995 the Defendant has so conducted its activities on the lower yard that a nuisance has subsisted. In the main, the complaint is that the Defendant's activities have been excessively noisy. The Claimants also complain, however, that the Defendant's activities have, from time to time, created harmful fumes.
At the time the proceedings were issued the Claimants' aim was to obtain an injunction to restrain those activities which constituted a nuisance. However, the Claimants maintain that shortly after the commencement of proceedings the Defendant modified its practices so that the nuisance abated. Since about January 2011 the claim has proceeded on the basis that the Claimants are entitled to damages for the nuisance which they allege they have endured in the 6 year period preceding 8 June 2010.
The Defendant denies that its activities in that period constituted a nuisance. The Defendant maintains that during the period in question it operated its business lawfully and strictly in accordance with a planning permission which it was granted in February 1997 and that none of its activities caused excessive noise or gave off harmful fumes. The Defendant's stance is that the Claimants are unduly sensitive to noise and completely intolerant of its lawful activities.
The Defendant's business in more detail
Since its inception, the Defendant's activities have been controlled by a small number of people. Mr Alan Davies is one of two directors; the other director is Ms Pat Weaver who is also the Defendant's secretary. During the course of the evidence, Mr Davies' son, namely Mr Dean Davies, was also identified as important to the Defendant's activities.
In essence, the Defendant arranges and facilitates the sale of second-hand vehicles at auction. The auctions take place in a specially constructed auction hall in the upper yard. Cars, light and heavy commercial vehicles, plant and occasionally motor cycles are sold during the course of auction. The majority of the vehicles sold belong to fleet or larger business users. The Defendant's clients include public bodies such as local authorities, NHS Trusts and Fire Brigades as well as many private companies. In his evidence Mr Davies said that many buyers come from as far afield as Pakistan, Nigeria, Jamaica and Egypt to purchase vehicles at auctions held by the Defendant.
The site which is currently occupied by the Defendant is a former railway cutting. Initially, in the late 1970s, the Defendant operated its business from the upper yard. By 1983, it had exclusive occupation of the whole of the site from which it now operates. It was only in about 1995, however, that the Defendant began to use the lower yard in conjunction with the activities being carried on at the upper yard.
The Defendant's activities upon the lower yard are controlled by the terms of a planning permission which was granted to the Defendant on 21 February 1997. The permission was granted by an Inspector who had been appointed by the Welsh Office to conduct and determine an appeal which the Defendant had initiated against an enforcement notice served by the local authority. The planning permission granted by the Inspector was in the following terms:—
"I hereby grant planning permission…..for the development already carried out, namely the use of the land shown edged and hatched in black on the plan annexed to this letter and the building shown on that plan for the storage, parking and valeting of vehicles associated with the adjacent car auction premises."
The planning permission was granted subject to a number of conditions one of which was:—
"(e) No activity shall take place on the site before 0800 hours or after 1830 hours on weekdays and Saturdays, nor at any time on Sundays or public holidays, the sole exception to this condition being in the event of a transporter arriving whilst the auction activities are being undertaken in the upper yard, such transporter shall be permitted to enter the lower yard for the purpose of parking only."
Mr. Davies made his first witness statement in these proceedings on 16 December 2010. In it, Mr Davies gave a description of the activities then being undertaken on the Defendant's premises. In his oral evidence, Mr. Davies told me that there has been no change of substance since December 2010. Accordingly, the following description of the Defendant's activities is taken from Mr. Davies' first witness statement as though it relates to the present time.
In summary, all auctions take place in the upper yard. Auctions for light vehicles are held on Mondays and Wednesdays at 7pm and on Saturdays at 2pm. Auctions for heavy vehicles take place at 6pm on Mondays. Auctions in relation to plant and machinery are not as regular. However, when necessary, they take place at 2pm on Mondays.
The lower yard is used, primarily, for two purposes. First, valeting of cars and light commercial vehicles takes place in the two valeting bays which are located in the northern part of the lower yard. Mr Davies estimates that approximately 6 vehicles are valeted each day. The second purpose for which the lower yard is used is as an overflow storage area for all kinds of vehicles when the storage area in the upper yard is full. Mr Davies says that vehicles are stored in the lower yard until space becomes available to bring them into the upper yard.
Mr Davies asserts that the Defendant adheres, strictly, to the planning permission which limits activity on the lower yard to the period 8.00am to 6.30pm Monday to Saturday. He asserts, too, that the activities carried on by the Defendant on the lower yard produces no more noise than is to be expected and certainly no more than is reasonable. He denies that the Defendant's activities have ever produced harmful fumes.
The Claimants' complaints
The First Claimant is either 63 or 64 years old. In 1966 he suffered a very serious mining accident which has left him with a number of disabilities. The Second Claimant is also aged 63 or 64. She has spent a good deal of time providing care to her husband. As of December 2010 when they made their first witness statements they lived at their home with two of their adult children, Dewi and Carwyn.
The First Claimant asserts that since about 1995 he and his family have experienced noise and fumes from the use of the lower yard. He says that the noise and fumes subsisted at such a level so as to amount to an actionable nuisance from 1995 until shortly after these proceedings were commenced. Noise emanating from the lower yard, amounting to an actionable nuisance was caused by prolonged revving of engines, by frequent use of high pitched reversing bleepers, the continued idling of vehicle engines and high impact bangs and crashes.
The Claimants have kept written notes of events within the lower yard since about 1995/1996. Until 2005 the Second Claimant made notes and recorded events on a video camera. From 2008 the First Claimant made written records. The written records were made in diaries and also on "pro-forma" sheets which were provided to the Claimants by their solicitors. The diary entries and sheets are exhibited to the first witness statement of the First Claimant. They run to 518 pages. They begin in July 1996 and end in December 2010.
The First Claimant says that the records do not evidence the totality of the problems which the Claimants have suffered. In particular, in 2005, 2006 and 2007 no records were kept even though there were recurring problems with noise and fumes. The Claimants explain this by saying that it was during this period that they attempted to sell their home and they were advised not to keep records so as not to inhibit the likelihood of a sale. However, they stress that the problems about which they complain were similar in those years to those for which records exist.
I have read all the records for myself. As I indicated at the...
To continue reading
Request your trial