Morgan and Another v Hinton Organics (Wessex) Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath: |
| Judgment Date | 02 March 2009 |
| Neutral Citation | [2008] EWCA Civ 537,[2009] EWCA Civ 107 |
| Docket Number | Case No: A2/2008/0038 & A2/2008/0951 A2/2008/0038 A2/2008/0951 A2/2008/0951 HQ06X02114 & 7BZ90889 Respectively,Case No: A2/2008/0038 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 March 2009 |
[2008] EWCA Civ 537
LORD JUSTICE CARNWATH
Case No: A2/2008/0038
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIS HONOUR JUDGE SEYMOUR QC
QUEEN'S BENCH DIVISION
HQ06X02114
Nobody appeared on behalf of the Respondents
This case is a renewed hearing of an application for permission to appeal, following the refusal on the papers by Pill LJ.
Having heard Mr Stookes, I adjourned the application to enable further evidence to be submitted. Having considered all the material before me, including the 7 th witness statement of Mr Stookes, I am satisfied that the case raises an issue of some general importance relating to the relevance of the Aarhus Convention in the exercise of the judge's discretion as to costs. This is given added significance by the recent publication of the report of the working party under Sullivan J on “Ensuring access to environmental justice in England and Wales” (in which this case is mentioned at paragraph 73).
Although the applicant faces a serious hurdle in his failure to have raised the issue before the judge, the need for the court to consider the wider issue is arguably a sufficiently compelling reason to justify the grant of permission in any event. In the unusual circumstances of the case, however, I think it would be wrong to do so without hearing from the prospective respondents. I shall therefore adjourn the application again, to come on in open court with notice to the respondents, and with a direction that the hearing of the appeal will follow at the same hearing if permission is granted
The court would in any event be assisted by submissions on behalf of the relevant Government Department, which I take to be DEFRA. The notice of appeal, and skeleton with Mr Stookes' affidavit of 13 th April 2008 and 7 th statement should be served on DEFRA, with an invitation to submit a written statement of the Government's position as to the status of the Convention (if any) for the purpose of domestic proceedings in general, and in the circumstances of this case (having regard also to the Sullivan report). If the Department wishes also to be heard by Counsel, it may apply in writing to a single LJ.
The adjourned application and (if permission is granted) the appeal should be heard by three LJs, of two LJs and a judge from the administrative court. It should include environmental and administrative law expertise.
[2009] EWCA Civ 107
Before :lord Justice Laws
Lord Justice Carnwath
and
Lord Justice Maurice Kay
Case No: A2/2008/0038 & A2/2008/0951
A2/2008/0038
A2/2008/0038
A2/2008/0951
A2/2008/0951
HQ06X02114 & 7BZ90889 Respectively
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT
QUEEN'S BENCH DIVISION, BRISTOL DISTRICT REGISTRY
HIS HONOUR JUDGE SEYMOUR
HIS HONOUR JUDGE BURSELL QC
David Hart QC and Jeremy Hyam (instructed by Richard Buxton Environmental & Public Law) for the Appellants
Stephen Tromans and Richard Wald (instructed by Messrs Bond Pearce LLP) for the Respondent
David Wolfe appearing for the intervening party CAJE
Hearing dates : Monday 2nd & Tuesday 3rd February, 2009
Carnwath LJ:
This is the judgment of the Court to which all members have contributed.
Introduction
The claimants are two residents of Publow, a rural hamlet not far from Bristol. The defendants, Hinton Organics (Wessex) Ltd, operate a composting site, about 300 and 500 metres (respectively) from the claimants' homes. In 1999 planning permission was granted by the Bath and North East Somerset Council (“the Council”), and in January 2001 a waste management licence by the Environment Agency (“the Agency”). The claimants have complained frequently of smells from the site. Some enforcement action has been taken by the authorities based on conditions in the licence, but this has not resolved the problem to the satisfaction of the claimants. In July 2006 they began their own proceedings in private nuisance for an injunction and damages.
On 9 th November 2007, HH Judge Seymour QC granted an interim injunction pending trial, and reserved the costs of the interim application to the trial judge. There was no appeal. However, on 21 st December 2007, following representations by the Council and the Agency, he discharged the interim injunction, and ordered the claimants to pay their costs and those of the defendant. The claimants sought permission to appeal against the costs order, on the grounds that it contravened the principle of “the Aarhus Convention” that costs in environmental proceedings should not be “prohibitively expensive”. The application was refused by Pill LJ on the papers, but renewed before Carnwath LJ on 10 th April 2008, by which time the trial was less than a month away. He adjourned the application for 28 days and stayed the costs order.
The trial began on 7 th April 2008 before HH Judge Bursell QC. On the first day the claimants objected to the evidence of the defendant's odour expert, Mr Branchflower, on the grounds of apparent bias. On the following day, the judge ruled that this evidence was inadmissible. He adjourned the proceedings, and ordered the defendant to pay the claimants' costs thrown away.
On 28 th July 2008, Carnwath LJ gave the defendant permission to appeal against that order and later directed that that appeal be heard at the same time as the claimants' adjourned application for permission to appeal against the interim costs order, with the hearing to follow directly if permission were granted. In the event, we granted permission without opposition from Mr Tromans for the defendant. The Council and the Agency are not directly concerned in the appeals, since an agreement has been made protecting their interests. We have also had helpful written submissions, given by permission of the court, by Mr Wolfe on behalf of the Coalition for Access to Justice for the Environment (“CAJE”), which comprises several leading UK Non-Governmental Organisations concerned with the environment. DEFRA declined Carnwath LJ's invitation to offer comments on the relevance of the Aarhus Convention, but their general position has been made known by a different route (see below).
Accordingly there are before us two appeals raising distinct issues:
i) The claimants' appeal against Judge Seymour's interim costs order of 21 st December 2007 (“the interim costs issue”);
ii) The defendant's appeal against Judge Bursell's order of 8 th April 2008, relating to the evidence of their odour expert (“the expert witness issue”).
(1) The Interim Costs Issue
The proceedings before the judge
Before turning to the arguments, it is necessary to say something about the form of the interim order, and the sequence of events leading to its discharge. The order as made on 7 th November 2007 prohibited the defendant from “causing odours” in the vicinity of the claimants' properties –
“…at levels that are likely to cause pollution of the environment or harm to human health or serious detriment to the amenity of the locality outside the boundary, as perceived by an authorised officer of [either the Agency or the Council].”
This formulation, including in particular the reference to the perception of an officer of the Agency, followed the wording of one of the conditions in the waste management licence for the Hinton site, granted in 2001. The validity of a condition in this form had been upheld by the Divisional Court in Environment Agency v Biffa Waste Services Ltd [2006] EWHC 3495(Admin). In that case, the Divisional Court rejected the argument that the reference to the perception of an authorised officer rendered the condition invalid, as breaching the principle of certainty required for a criminal offence, and usurping the adjudicative function of the court. It was held that, while the evidence of an authorised officer was a necessary ingredient of the offence, the condition did not limit the jurisdiction of the court to decide on all the evidence whether the odours offended the standards set by the condition.
As appears from a subsequent letter from the court (see below), it seems that the judge himself had raised the need for some objective criteria to support the order, and that his attention had been drawn to the terms of the licence condition as a possible precedent. In his judgment he described this form of order as being “substantially in the terms of paragraph 5.2.2 of the licence” while making it specific to the properties of the claimants, and adding an authorised officer of the Council (in addition to that of the Agency) as a potential monitor.
On the merits of the application the judge was satisfied that there was a “serious issue to be tried” as to whether odours from the defendant's premises were interfering with the claimants' enjoyment of their properties, and that damages would not be an adequate remedy. It was accepted by Mr Wald, for the defendants, that an injunction in the form now proposed would not damage the defendants' business. The judge...
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