Morgan v Hinton Organics [England, Court of Appeal.]
| Jurisdiction | England & Wales |
| Judgment Date | 02 March 2009 |
| Date | 02 March 2009 |
| Court | Court of Appeal (Civil Division) |
England, Court of Appeal.
(Laws, Carnwath and Maurice Kay LJJ)
Environment Nuisance Odours Environmental proceedings Whether odours from defendant's premises interfering with claimants' enjoyment of their properties Costs Whether interim costs issue should have been reserved for trial judge Whether interim costs order unfair and prohibitively expensive Article 9(4) of Aarhus Convention, 1998 Applicability of Convention
Treaties Interpretation and scope Aarhus Convention, 1998 United Kingdom and European Community ratifying Convention Principle in Convention that costs in environmental proceedings should not be prohibitively expensive Whether Convention applying to private nuisance proceedings Whether costs order contravening principle Whether court obliged to comply with Convention Relevance of Convention
Relationship of international law and municipal law Treaties Effect of treaty in domestic law Aarhus Convention, 1998 Status of Convention in English law Principle in Convention that costs in environmental proceedings should not be prohibitively expensive Treaty obligation Relevance Whether directly binding on court Whether any directly applicable rule of Community law Civil Procedure Rules Part 44 containing principles governing award of costs in England and Wales The law of England
Summary: The facts:The claimants, two residents of a rural hamlet, commenced private nuisance proceedings against the defendant company,
Hinton Organics (Wessex) Ltd, which operated a composting site about 300 and 500 metres respectively from the claimants' homes. The claimants complained frequently of smells from the site and local authority action had failed to resolve the problemFollowing a judge's discharge of an interim injunction granted pending trial and an order that the claimants pay their and the defendant's costs, the claimants appealed. They maintained that the interim costs issue should have been reserved for the trial judge and claimed that the interim costs order was unfair and prohibitively expensive, with the result that it was contrary to Article 9(4) of the Aarhus Convention 1998.2 The defendant appealed against a decision that the evidence of its odour expert was inadmissible on grounds of apparent bias.
Held:The appeals were allowed. The defendant's costs were reserved to the trial judge. The admissibility decision was set aside.
(1) For the purposes of domestic law, the Convention was an international treaty, which had not been directly incorporated into English law. As such its provisions could not be directly applied by domestic courts, but could be taken into account in resolving ambiguities in legislation intended to give it effect. Since the European Community had ratified the Convention, the European Commission had the right to ensure that Member States complied with the Aarhus obligations in areas within Community competence (para. 22).
(2) The Convention was capable of applying to private nuisance proceedings; a literal reading of its provisions did not support a restriction to public rights. Since there was no Directive specifically relating to this type of action, there was no directly applicable rule of Community law. The principles of the Convention could at most be taken into account in resolving ambiguities or exercising discretions (paras. 414).
(3) There was thus no legal principle to enable the Court to treat a pure treaty obligation, even one adopted by the European Community, as converted into a rule of law directly binding on an English court. It was at most a matter potentially relevant to the exercise of the judge's discretion (paras. 4858).
The following is the text of the judgments delivered in the Court of Appeal:
Carnwath LJ
This is the judgment of the Court to which all members have contributed.
1. 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.
2. On 9th 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 21st 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 10th 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.
3. The trial began on 7th 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.
4. On 28th 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).
5. Accordingly there are before us two appeals raising distinct issues:
(i) The claimants' appeal against Judge Seymour's interim costs order of 21st December 2007 (the interim costs issue);
(ii) The defendant's appeal against Judge Bursell's order of 8th April 2008, relating to the evidence of their odour expert (the expert witness issue).
6. 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 7th November 2007 prohibited the defendant from causing odours in the vicinity of the claimants' properties:
7. 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 LtdUNK[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.
8. 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.
9. 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 decided that the balance of convenience favoured the grant of the injunction. He noted Mr Wald's submission that it would add nothing of substance to the Agency's existing powers, but he concluded that it would have benefits in that it would focus attention on the these particular properties, and add to the remedies otherwise available the formidable powers of the court in relation to contempt of court.
10. The defendants themselves did not appeal against the order. However, having been notified of the order, the Agency and the Council wrote...
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