B e f o r e :
LORD JUSTICE DENNING
LORD JUSTICE ROMER
AND
LORD JUSTICE PARKER
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Between:
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HER MAJESTY'S ATTORNEY-GENERAL ON THE RELATION
OF THE GLAMORGAN COUNTY COUNCIL
AND THE PONTARDAWE RURAL DISTRICT COUNCIL
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-v-
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P.Y.A. QUARRIES LIMITED
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd., Room 392,
Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C.2.)
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MR F. W. BENEY Q.C., MR DYFAN ROBERTS and MR HAROLD MADDOCKS (instructed by Waterhouse & Co. Agents for T. W. James & Co., Swansea)
appeared on behalf of the Appellants (Defendants).
MR H. EDMUND DAVIES Q.C., MR MORGAN EVANS and MR MICHAEL EVANS (instructed by Messrs Gregory, Mead & Sons Agents for Richard John, Cardiff)
appeared on behalf of the Respondents (Plaintiffs).
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HTML VERSION OF JUDGMENT
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LORD JUSTICE DENNING: I will ask Lord Justice Romer to deliver the first judgment.
LORD JUSTICE ROMER: This is an appeal from an order of Mr Justice Oliver dated 25th April, 1956, whereby he granted an injunction restraining the Defendants from carrying on the business of quarrying at Penyralltwen near Pontardawe in the County of Glamorgan, in such a manner as to cause stones or splinters to be projected from the confines of the quarry or to occasion a nuisance to Her Majesty's subjects by dust or by vibrations. It will be observed that whereas the injunction is unqualified as to the stones and splinters therein mentioned, it is confined, so far as dust and vibration are concerned, to occasioning a nuisance to Her Majesty's subjects. The Defendant Appellants are only challenging the second part of the order, namely, the injunction with regard to dust and vibration.
The action has been brought by the Attorney-General on the relation of the Glamorgan County Council and the Pontardawe Rural District Council, and it is founded upon a public nuisance under the three broad headings which were dealt with by the order of the judge. The Statement of Claim alleges that the nuisances complained of have existed since about 1947.
The Defendant Company was incorporated in 1929 but apparently carried on its activities on a somewhat modest scale for some years. In 1947 the Pontardawe Rural District Council granted permission to the Company, under the Town and Country Planning Acts for the further working of the then existing quarry, subject to certain conditions, one of which was that the Council should be satisfied that the utmost precautions would be taken to prevent nuisance from dust. In 1949 Mr Bryndley Thomas became a director of the Defendant Company: there were then three other directors, namely, Mr Wyndham Thomas, Mr Jim Morris and Mr Illtyd Williams, the last named gentleman being also the Manager. From 1951 onwards the Mr Bryndley Thomas and Mr Wyndham Thomas took over the management of the business, and Mr Illtyd Williams left in the same year.
The Defendants' quarry adjoins a highway called the Alltwen-Brynllewellyn highway, which runs roughly east and west. Immediately east of the quarry is a footpath which leads in a northerly direction from the highway. To the east of this footpath are eight dwelling-houses abutting onto the highway and on the north side of it. The nearest of these houses is about 50 yards from the nearest point of the quarry. Close to the quarry on the west side of it, and also abutting onto the highway on the north side, are some 20 houses, of which the nearest is 35 yards from the quarry and the furthest about 260 yards. About 250 yards to the south of the quarry is a farm called Alltwenganol, which is surrounded by fields. To the north-west of the quarry is another highway, called Dyffryn Road, which, at its closest proximity to the quarry (a matter of some 360 yards), is used for residential purposes. The locality is shown in detail in a plan which was put in evidence at the trial, and the judge gave the following general description of it.
"Round the quarry on both sides of it," he said, "can be seen groups of houses. The quarry, according to the evidence, is not more than about 25 or 26 years old; that is to say, it has not been an open quarry for longer than that; that it has not been worked. But many of these little houses. I think, have been built much longer than that. They form a little colony. One does not see many particular reason for their existence at that place; certainly nothing to do with the quarry. But one assumes that they were houses for people who found Pontardawe - which is away to the left of the plan - not a particularly charming place to live in and came to move out to these little houses, where they have, certainly on three sides, some very beautiful Welsh scenery, with fine hills and valleys. That, I take it, was the reason these houses were built, and that is the nature of the people who occupy them; people who are not interested in the quarry at all, who have other occupations, who follow all sorts of occupations. Some work in steel; there is a lady, Mrs. Davies, who is a justice of the peace; there is a schoolmaster or two, and one with academic distinction, a bachelor of science; and there are all sorts of mixed people."
Some time before the year 1949 the activities of the Defendants in their quarrying operations considerably increased, and some of the householders living in the vicinity of the quarry began to complain to the local authorities.
In June of 1949 thirty local residents presented a petition to the Pontardawe Rural District Council in which, after stating that innumerable complaints had been made to the managing director of the Defendant Company over a long period, they stated:
"On a number of occasions damage by flying stones has been done to houses in the vicinity of the quarry and recently a pane of a kitchen window was blown in by blast, littering a breakfast table with jagged pieces of glass, the wife in the home narrowly escaping injury. We sincerely believe that your authority cannot fail to realise the seriousness of the position and the earnestness of our protest against:
1. The manner in which blasting operations are carried out regardless of the risk of damage to our homes.
2. The flying pieces of rock on occasions following blasting operations landing some distance from the quarry constitute a very serious menace to life inside and outside the home and to users of the public highway.
3. The dust nuisance caused by stone crushing, the dust penetrating the houses and having injurious effects. The dust on occasions makes the use of the main road for some distance unpleasant and unhealthy.
We appeal to the members of your authority responsible for the interests of the ratepayers to take immediately whatever action may be necessary to remove the causes of our protest."
Following upon the receipt by the Council of this petition their Public Health Committee held a number of meetings at which they considered the position, and after a meeting which took place on 13th December, 1949, between the Committee and representatives of the Defendants and a deputation from the residents, a sub-committee of the Council, which had been appointed, visited the quarries and watched the Defendants' operations and as a result reported that the dust nuisance at the quarries was negligible, and further that no splinters fell outside the perimeter of the quarry during blasting operations. As a result, however, of further complaints from local residents further trials were carried out, and on 27th April, 1950, a vibration test was conducted at the quarry. As the result partly of this test the Committee still appeared to be of the opinion that no action could be taken against the Defendants, as appears from some Minutes which were put in evidence. Complaints from the residents continued to be made, and on 8th July, 1950, the Clerk of the Glamorgan County Council wrote to the Defendants calling their attention to the fact that stones and splinters were falling upon or being blasted across the highway which adjoined the quarry and asking them for an assurance that adequate steps would be taken forthwith to ensure that such a practice should cease. That letter remained unanswered. The Clerk of the County council wrote again on 20th July, 1950, and on 26th July, 1950, received a letter from the Defendants to the effect that they were "taking extraordinary precautions" during the blasting operations. A meeting took place between the Pontardawe Rural District Council and the Defendants, and on 15th March, 1951, the Clerk to the Council wrote to the Defendants saying that the nuisance resulting from their quarrying operations had not been abated and was unlikely to be abated for a substantial period if at all, and that the Council had decided to take appropriate proceedings to secure the abatement of the nuisance. In fact, however, the Writ in this action was not issued until 4th July, 1952. In the meantime, however, and indeed from the early summer of 1950, letters of complaint had been arriving in a steady stream at the offices of the Relator Councils from persons who lived in the neighbourhood of the quarry. It will be necessary to refer in greater detail to these complaints later on in this Judgment, but it is enough for the moment to say that although most of them related to the projection of stones from the quarry (a natural emphasis, having regard to the potential danger to property and personal safety arising from the bombardment) some of the complaints referred also to vibration and dust.
During the last few years certain changes and developments have taken place in the quarrying plant on the Defendants' premises and in their operational methods. Up to 1950 the Defendants drilled 12 ft. holes of 1 1/8 ins. diameter. The holes, four to six in number, were drilled 3 ft. to 4 ft. back from the face of the quarry and about 6 lb. of explosive were used in each hole. These charges were fired simultaneously and produced a fall of 80 to 100 tons of stone. This material was then lifted by crane from the base of the quarry, put on to skips and taken to a crusher, which was in the open. This crusher was only capable of dealing with stones of about 10 ins. by 6 ins. In order to reduce large stones to the capacity of the crusher they were drilled to about half of their depth, stemmed with 1-oz. or 2-oz. cartridges and detonated. This process was known as "popping," and it was the practice to explode 12 to 15 stones in this manner by simultaneous detonation. At this time there were four or five main explosions every week, and "popping" took place up to three times a day. In 1950 the Defendants obtained planning permission to instal vibratory screens and a new crusher, with a view to reducing the dust which emanated from the plant. In the same year they began on the installation of these units and also on the construction of a new road leading to the quarry base. The object of this road, which came into use towards the end of 1951, and was completed in 1952, was to enable an excavator to be taken to the face of the quarry so as to save men from having to load stone on to the skips. The construction of this road involved a good deal of blasting near the highway. The Defendants obtained the new crusher in April, 1951, and it was capable of taking stones up to 20 ins. by 10 ins. At the end of 1952 the Defendants bought an additional crusher, known as a "skull breaker," which could take stones of 4 ft. by 16 ins. thick. The object of this piece of plant was to reduce "popping," and since its acquisition this procedure had been reduced to some three times a month. Mr Bryndley Thomas said in evidence that the Defendants have been able to go for four or five weeks without having to "pop" at all. The system of major blasting, already referred to, continued up to 1953, when the Defendants obtained drills capable of drilling down to 24 ft. These drills had the same bore as the previous ones but the holes were drilled 4 ft. to 6 ft. back from the face and 12 lb. of powder were used in each hole. The charges, usually four to six in number, were fired simultaneously, as before, and a fall of 300 to 400 tons of rock was obtained from each explosion. In June, 1952, the Defendants had consulted A Mr F.C. Rosling, who is an Associate Member of the Institute of British Engineers, a Member of the Institute of Quarrying, and is in private practice as a consultant in quarry blasting, etc. This gentleman, who gave evidence at the trial, advised the Defendants to procure what is called a "wagon drill," which, in his view, would eliminate all further cause for complaint arising from their operations at the quarry. This apparatus drills to a depth of 40 ft. with a diameter of 2½ ins., and the Defendants somewhat belatedly bought one: it was installed in their quarry towards the end of 1953 and the Defendants have used it ever since. With it they drill up to 12 holes, 12 ft. to 14 ft. back from the face, and put a charge of 30 to 35 lb. of explosive in each hole. The charges are fired by what are called delayed detonators. This involves an almost infinitesimal time lag between each detonation. The effect of this procedure is that, although a bystander is only conscious of one explosion, each charge is in fact detonated separately. The object of installing the wagon drill was not only to prevent the ejection of stones outside the quarry but also to obviate vibration from the main explosions. As each of these explosions brings down 3,000 to 4,000 tons of stone they only have to be effected once every five or six weeks.
On 26th August, 1952, a second vibration test was carried out by a Mr D. Stenhouse. This gentleman, who is a B.Sc. in Mining, furnished the Defendants with a report upon this test and also gave evidence about it at the trial. I refer further to this hereafter.
The action came on for hearing before Mr Justice Oliver on 11th April, 1956, and the trial occupied nine or 10 days. In addition, the judge devoted a day to a view of the premises, and blasting operations were carried out in his presence. In the course of his Judgment the learned Judge arrived (in brief) at the following findings. So far as the flying stones were concerned, he said that there was really no defence at all; that the case was "absolutely proved at the time the Writ was issued"; and that, notwithstanding the installation of the wagon drill, he was quite satisfied that the nuisance had not been wholly abated and that he should grant an injunction. As to vibration, he came to the conclusion "that for some reason - I cannot tell what it is - there is on occasion such vibration as to frighten people, to shake their houses and to make them thoroughly uncomfortable, and that such vibration as that, when it is caused, is a nuisance and must cease." With regard to dust, the Judge said that it would not be right to base an injunction on the explosions, having regard to their comparative rarity since the end of 1953, but that excessive dust emanated from the secondary crusher when the door leading into it was left open, as was frequently the case. Finally he said:
"I have no doubt that there is dust nuisance from this place - of course, only in dry weather. I have no doubt that they have not done anything to cope with it and I am going to order them to do so by injunction."
Mr Beney, in challenging the injunction which the learned Judge granted in relation to vibration and dust, based his criticisms of the Judgment on the following general grounds. He first submitted that the Judge approached the matter as though it was a private, and not a public, nuisance which was in issue; and that he applied tests and followed lines of inquiry which are apt and relevant in cases of private nuisance but which are to some extent irrelevant, and are certainly indecisive, where a public nuisance is alleged. Mr Beney's second submission (which is to some extent associated with the first) was that the judge paid insufficient attention to the expert evidence which was called before him. The third criticism of the Judgment is that the learned Judge failed to address his mind to the position as it existed at the date of the Writ but primarily founded his decision to grant the injunctions now complained of on incidents which had occurred between the Writ and the trial.
Before considering these contentions in any detail it would, I think, be convenient to consider the nature of a public nuisance as distinct from nuisances which are customarily described as "private." At page 1392 of the 33rd edition of Archbold's Criminal Pleading there is given a precedent of an indictment for carrying on an offensive trade; so far as material it is in the following form:
"A.B. (on such and such a day) in the County of London, caused a nuisance to the public by allowing offensive and unwholesome smells to be emitted from furnaces or boilers in which tripe was being burnt or boiled by the said A.B., which nuisance the said A.B. still continues."
We were told that that form and the notes which follow it have appeared substantially unchanged in each successive edition since earliest times. It is stated in these notes (inter alia):
"prove that the smoke or smell arising from (the boiler) was either injurious to health or so offensive as to detract sensibly from the enjoyment of life and property in its neighbourhood.... It is not necessary that the smells produced by it should be injurious to health; it is sufficient if they are offensive to the senses.... Prove also that it is in a populous neighbourhood, or near a highway.... for its being a nuisance depends in a great measure upon the number of houses and the concourse of people in its vicinity, which is a matter of fact to be determined by the jury."
In Stephen's Digest of the Criminal Law (8th Edition) page 184, it is stated that
"A common nuisance is an act not warranted by law or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all His Majesty's subjects."
The following definition of nuisance appears in Blackstone's Commentaries (III, chapter 13, page 216):
"Nuisance, nocumentum, or annoyance, signifies anything that worketh hurt, inconvenience, or damage. And nuisances are of two kinds; public or common nuisances, which affect the public, and are an annoyance to all the King's subjects; for which reason we must refer them to the class of public wrongs, or crimes and misdemeanors: and private nuisances; which are the objects of our present consideration, and may be defined, anything done to the hurt or annoyance of the lands, tenements or hereditaments of another."
This passage from Blackstone is cited in Pearce & Meston's Law of Nuisances, page 1, and the learned authors point out that "anything that worketh hurt, inconvenience or damage" is too broad as including many things which are not nuisances, being damna sine injuria.
Finally, in a form of indictment for a public nuisance by smells given in Chitty on Criminal Law (2nd Edition), Volume III. pages 652-654, the relevant allegation is that the air was
"corrupted and rendered very insalubrious to the great damage and common nuisance of all the liege subjects of our said Lord the King, not only there inhabiting and residing, but also going, returning, and passing through the said streets and highways, and against the peace, etc."
It is difficult to ascertain with any precision from these citations how widely spread the effect of a nuisance must be for it to qualify as a public nuisance and to become the subject of a criminal prosecution or of a relator action by the Attorney-General. It is obvious, notwithstanding Blackstone's definition, that it is not a prerequisite of a public nuisance that all of Her Majesty's subjects should be affected by it; for otherwise no public nuisance could ever be established at all.
In Soltau v. De Held Kindersley ( 2 Simon, New Series page 133)Vice Canceller said (at page 142):
"I conceive that, to Constitute a public nuisance, the thing must be such as, in its nature or its consequences, is a nuisance - an injury or a damage, to all persons who come within the sphere of its operation, though it may be so in a greater degree to some than it is to others."
In Rex v. White (1 Burrow, page 333) the Defendants had been convicted of a public nuisance on an indictment which charged that
"at the parish of Twickenham, etc., near the King's Common highway there, and near the dwelling-houses, of several of the inhabitants, the Defendants erected twenty buildings for making noisome, stinking and offensive liquors."
Objection was made that the indictment was only laid generally "in the parish of Twickenham." Lord Mansfield rejected the objection, saying:
"It is sufficiently laid, and in the accustomed manner. The very existence of the nuisance depends upon the number of houses and concourse of people: and this is a matter of fact, to be judged by the jury."
In Rex v. Lloyd (4 Espinasse, page 200) an indictment for a nuisance by noise was preferred by the Society of Clifford's Inn. It appeared in evidence that the noise complained of affected only three houses in the Inn. Lord Ellenborough said that upon that evidence the indictment could not be sustained; and that it was, if anything, a private nuisance. It was confined to the inhabitants of three numbers of Clifford's Inn only; it did not extend to the rest of the Society and could be avoided by shutting the windows; It was, therefore, not sufficiently general to support an indictment.
In Attorney-General v. Sheffield Gas Consumers Co. (3 De Gex, Macnaghten & Gordon page 316) it was submitted in argument that it was the duty of the Court of Chancery to interfere by way of injunction in all cases of public nuisance, whatever might be the position in the case of private nuisances. In the course of his Judgment Lord Justice Turner said:
"It is not on the ground of any criminal offence committed, or for the purpose of giving a better remedy in the case of a criminal offence, that this court is or can be called on to interfere. It is on the ground of injury to property that the jurisdiction of this court must rest; and taking it to rest upon that ground, the only distinction which seems to me to exist between cases of public nuisance and private nuisance is this - that in cases of private nuisance the injury is to individual property, and in cases of public nuisance the injury is to the property of mankind."
In Reg. v. Price (12 Queen's Bench Division, page 247), a question arose whether the burning of a dead body, instead of burying, it, amounted to a public nuisance. In the course of his charge to the jury Mr Justice Stephen said (at page 256):
"The depositions in this case do not state very distinctly the nature and situation of the place where this act was done, but if you think upon inquiry that there is evidence of its having been done in such a situation and manner as to be offensive to any considerable number of persons, you should find a true bill."
In Attorney-General v. Keymer Brick and Tile Co. Ltd. (1903) 67 Justice of the Peace, page 434) Mr Justice Joyce said:
"The only question I have to decide is purely one of fact, namely, whether or not what the Defendants have done has created or occasioned a public nuisance within the neighbourhood of their brickfields. Now, in law a public nuisance need not be injurious to health. It is not necessary to show that people have been made ill by what had been done. It is sufficient to show that there has been what is called injury to their comfort, a material interference with the comfort and convenience of life of the persons residing in or coming within the sphere of the influence of that which has been done by the Defendants on their works . The conclusion I have arrived at is that.... a serious and disgusting public nuisance has been occasioned by the Defendants in the neighbourhood of their brickworks."
The form of injunction granted in that case was (so far as relevant) to restrain the Defendants from performing specified acts
"so as by noxious or offensive odours or vapours arising therefrom or otherwise to be or occasion a nuisance to the annoyance of persons in the neighbourhood of the Defendants' brickfields and lands, or so as to be or become injurious to the public health."
The expression "the neighbourhood" has been regarded as sufficiently defining the area affected by a public nuisance in other cases also. (See, for example, Attorney-General v. Stone(12 Times Law Reports, page 76) Attorney-General v. Cole(1901 Chancery, page205) and Attorney-General v. Corke(1933 Chancery, page 86).
I do not propose to attempt a more precise definition of a public nuisance than those which emerge from the textbooks and authorities to which I have referred. It is, however, clear, in my opinion, that any nuisance is "public" which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. The sphere of the nuisance may be described generally as "the neighbourhood"; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected for an injunction to issue.
It is convenient now to turn to the evidence which was called before the learned Judge to the state of affairs with regard to vibration and to dust as it existed in the summer of 1952. The criticisms of the Judgment to which I have already referred must, of course, be considered, but it is on the evidence, when related to the legal principles just mentioned, that this appeal falls to be determined.
The first witness was Mr Percy Howell Davies, who his a schoolmaster and lives a No. 57 Penyralltwen. He had written numerous letters of complaint to the local authority from July, 1950 onwards. On the 1st January 1952, he wrote that on that day there had been excessive vibration. On the 26th February, 1952, he wrote referring to blasting operations on the 21st, February which he described as very intensive causing violent vibrations, and on th 30th January, 1953, he wrote again referring to an explosion which had taken place two days before and in regard to which he expressed the opinion that the vibration was excessive. In a letter of the 23rd April, 1952, Mr Davies mentioned a terrific explosion on March 31st followed by a miniature cloud of dust. In evidence before the Judge he spoke of a fierce crushing type of blasting on the 21st February, 1952, and said that the vibration was terrific. He added that he had seen articles fall from a shelf in his pantry and was asked: "Is that an isolated occasion, or has that happened on a number of occasions?" Answer: "Not on a great number of occasions; articles have not fallen from shelves on every occasion, but the vibration invariably is terrific". With regard the dust, he confirmed the letter which he had written with regard to the explosion on the 31st March 1952. Later in his evidence Mr Davies said that there had been no decrease in the dust in his home since 1947 and he complained both of dust when an explosion occurred and dust from the crusher.
Mrs Apperley, an elderly lady who lives at 59 Pennyralltwen, wrote many letters of complaint in 1951 and subsequently. On the 4th July, she said: "Th ground trembled under my feet as I stood on at the gate and the dust was dreadful". In the 15th January, 1952, she wrote and said: "On Saturday 12th I was in bed and they blast and it shook the bed and frightened me". In her evidence she confirmed her complaints both as to vibration and dust.
Mr David Brynmor Williams, of 62 Pennyralltwen, made written complaints in 1950 and 1951. On the 28th August, 1951, after referring to a leakage in his trough which he said he was convinced was caused by vibration from the blasting, he said that on inspecting the trough he was not surprised to find that it was half full of very fine dust. On the 29th December, 1951, he wrote saying that a most terrific explosion had taken place that afternoon and that his house shook as if there was and earthquake. On the 5th July, 1952, in a further letter he wrote:
"There is also the matter of dust particularly during dry weather. That also is beyond all reason and I dread the job of trimming the hedges as when they are disturbed clouds of very fine dust rise from them."
Mr Williams also confirmed these complaints in his oral evidence.
Mrs Catherine Mary Davies, who is a Justice of the Peace and lives with her husband Mr Percy Davies at No. 57 Pennyralltwen, in a letter dated 3rd May, 1950, said, amongst other things; "The dust nuisance, danger from escaping stones and the shock of the explosions make living conditions almost impossible". On the 18th of April, 1951, she wrote: "Yesterday at 9.15 terrific blasting was carried out and the window if my living room was so shaken that I thought it was coming in". On the 27th June, 1951, in describing an incident which had taken place on the 4th June, 1951, she said that it was a very warm day and the dust was very dense. In her evidence she said that on the 13th April, 1951, heavy blasting had taken place which shook the house. She said further that terrific vibration had taken place on the 10th January, 1952, and described the vibration which she had experienced on the 7th July, 1952, as terrific. Her evidence as to the 31st July, 1952, was terrific blasting, dust very dense and very violent vibrations. she said further that on the 12th September, 1952, a window of her living room was cracked by blasting which had taken place in the afternoon. The evidence of Mrs Davies was assisted by the fact that she had kept a diary in which she recorded her various experiences of the effect of the Defendants' operations.
Mr William John Hopkin, who farms at Alltwenganol Farm, wrote a letter on the 31st July, 1950, and in the course of his complaints said: "The excessive vibration is also a serious consequences as far as the animals are concerned".
Mr Arther Jenkins, who used to live at No. 69 Pennyralltwen, referred in a letter dated the 4th October, 1951, to a terrific explosion which had occurred on the 21st September, 1951, and which he said shook the foundations of the house. He confirmed that in his oral evidence.
Miss Elisabeth Hannah Williams, who lives at No. 61 Pennyralltwen, writing on the 21st April, 1951, after referring to the falling stones outside the quarry, said: "Besides this the loud reports and vibrations is very distressing and my mother's health is affected very much by it". In a letter which she wrote on the 17th May, 1954, Miss Williams said: "It is not only the blasting and flying stones that is a worry to us but during this dry weather we suffer terrible from dust it gets through the house and on the food and we have been unable to use the soft fruit which grows in the garden for several years". Miss Williams confirmed that statement in her evidence adding that one cannot wash soft fruit".
Mrs Emily Mary Smith, who lives at No. 63 Pennyralltwen, wrote in July, 1950, complaining of vibration and said: "These terrible explosions shake you and the bed and it is really frightening. The dust nuisance is bad getting into everything". On the 23rd April, 1951, Mrs Smith wrote saying: "The dust is all over the house, in one's clothes and food", and further made reference to the effects of blasting. In her oral evidence Mrs Smith confirmed that her written complaints had been true.
Mr Ieuan Lewis, who is senior sanitary inspector of the Pontardawe Rural District Council, had visited the quarry between the years 1950 and 1956 in order to ascertain the degree of dust control which was being exercised. He had made certain reports upon the matter which he was asked about in evidence. The first of Mr Lewis's reports was dated the 4th July, 1952. He reported "Some degrees of dust blown by the wind". In his remarks at the foot of the report he said: "Greater part of dust blown by wind due to an open door at bottom of plant. Floor and surrounding exterior is covered to inches depth with fine dust. Great improvement when door was closed. Mr Wyndham Thomas asked to remove accumulated dust and water surrounding but refused, stating that rain would do the job for him". The door to which Mr Lewis referred, and which is described in subsequent reports as "Door to conveyor belt", is a double door at the bottom of the secondary crusher from which dust accumulated by gravity in the course of operations is removed and access is obtained to the machinery. As appears from the learned Judge's Judgment, this door has led to constant trouble, and continued to do so down to the time of the trial. Mr Lewis's further reports for July and August, 1952, are moderate in tone, but in the report of the 1st September, 1952, the degree of dust was described as "appreciable" and it was stated that "dust deposits were found on the bushes and fruit (blackberries)". Mr Lewis was asked in evidence whether in his view the Defendants had taken the steps they could have taken to control the dust and his answer was that they had not; and that the dust which he had found exceeded the normal dust expected to be found in the area. He attributed the dust to three causes, videlicet: the dust which arises when the stone is crushed to chipping in the crushers; and that which accumulates on the site from the two previous sources.from disturbance of rock and earth during blasting; that which accumulates on the site from the two previous sources. He said (as indeed the reports themselves show) that he was constantly urging upon the Defendants the necessity of keeping the doors to the crusher closed and he asked them to see to it that they should be made so that they could not be opened accidentally; but apparently the difficulty about this was that the doors became jammed open from stones coming from the internal plant. At all events very little improvement was effected. "Whatever was done", said Mr Lewis, "was certainly not effective in requiring the door close. On every occasion that I called.... there was a cloud of dust coming from the accumulation within due to the through draught". He was asked in cross-examination why he had not carried out a test for dust, and the Petri test was mentioned. He answered: "There was sufficient evidence equal to the Petri test available in the houses inspected by the film of dust on furniture, roofs and windows".
Mr Rosling gave evidenc on behalf of the Defendants with regard (inter alia) to vibration. As I have stated previously, he was consulted by the Defendants in June, 1952, and it was as a result of his advice that the Defendants belatedly installed the waggon drill towards the end of the following year. Mr Rosling's view was that here should have been no reason at all for considerable vibration from blasting since 1953; and that in 1952 he had told the Defendants that he would let them have details of a much better, more progressive, method of operating their quarry. Apart from the above summary Mr Rosling gave no evidence as to vibration in 1952.
Mr David Stenhouse, to whom I have previously referred, who is on the staff of I.C.I., carried out a vibregraph test at the Defendants' premises on the 26th August, 1952. This had been arranged by Mr Rosling. The reason for the test, as stated in Mr Stenhouse's subsequent report, was "complaint of possible damage by vibrations from blasting to nearby property". In his "Remarks" to the report Mr Stenhouse stated:
"The results obtained.... indicates that the maximum amplitude of the ground movement.... is well below that which, in our opinion, could cause damage to the houses concerned.... It should be noted, however, that a much lower amplitude of ground movement is perceptible to the human body".
Mr Stenhouse gave evidence at the trial on the issue of vibration, and in the course of it he reverted to the distinction between the effect of vibration on houses on the one hand and on the human body on the other. He was asked: "Is the fact that people are conscious of vibration and speak about it being very substantial any guide as to whether or not it is causing damage to property? (A) In my opinion it is no guide". He was then asked as to the test which he had carried out in August, 1952, and, without going into detail, it is sufficient to say that the explosions which were registered (and which were comparable to those generally effected at that time) could not, in his biew, have caused damage to any of the adjoining houses. He also expressed the view that the method of staggered explosions. or "short delayed blasting", which the Defendants have adopted since the end of 1953 results in considerably less vibration than the system of simultaneous detonation which had prevailed previously.
Upon that evidence the question has to be resolved whether the plaintiffs succeeded in establishing that a public nuisance from (a) vibration and (b) dust was being caused by the Defendants' quarrying operations at the date of the Writ; and, if so, whether in view of the remedial measures which the Defendants have taken since July, 1952, the Court should interfere with the injunctions which the Judge thought it right to grant.
Mr Beney's main submission with regard to vibration was that, even on the assumption (which he did not admit) that one or more individuals might have successfully instituted proceedings for private nuisance in 1952, the evidence does not show that a sufficient number of persons were affected by vibration to justify the nuisance (if any) being regarded as a public nuisance. He said that vibration differs fundamentally from such things as noise or the pollution of the atmosphere. In nuisances such as those, he said, the Court might well infer from the evidence of some of the affected class an injury to the class as a whole; but that no such inference can fairly be drawn in the case of vibration, which is largely a matter of individual susceptibility. I agree with Mr Beney that vibration is in some respects to be approached on a different footing from noise and smell; and the fact that one person reasonably suffers discomfort from vibration does not necessarily establish that his neighbour has been similarly affected. I am in the present case satisfied, however, that a nuisance from vibration existed in 1952 and that it was sufficiently widespread to amount to a common, or public, nuisance.
As I have earlier indicated, this question is one of fact, and the judge decided it adversely to the Defendants, and it appears to me to be impossible to say that in view of the 1949 petition, the letters of complaint and the oral evidence, the Judge arrived at a wrong decision. It is true that the complaints as to vibration (and indeed as to dust) were fewer and less emphatic than the complaints as to flying stones; they came, however, from a number of persons living to the east and south of the quarry; and the Judge, who saw the witnesses, was satisfied that the complaints were genuine. Mr Beney's complaint that the Judge paid no or insufficient attention to the vibration tests and to the evidence of Mr Stenhouse is, in my opinion, ill-founded. It seems clear to me that he had these matters in mind when he considered in the course of his Judgment whether the Plaintiffs had established that the vibration had caused structural damage to houses and came to the conclusion that they had not.
By reason of the Judge's finding on this point I omitted in my review of the evidence most of the complaints (and they were many) of damage, both structural and otherwise, to the complainants' houses. The principal ground on which the judge gave relief was that "if reasonable people on reasonable grounds do believe that their houses are being shaken to pieces they will be just as much harassed and distressed, and just as much unjustly harassed and distressed, as if the damage was in fact being so caused." I see no reason to quarrel with that view. Moreover, there was a body of evidence as to personal discomfort, apart from fear of damage to houses. It is true, as Mr Beney pointed out, that the judge was particularly impressed by three incidents which occurred on 1st July, 1955, 30th August, 1955, and 3rd January, 1956; and that all of these occurred a considerable time after the issue of the Writ. It is clear from the Judgment, however, that he was mindful of past history; for example, he said: "The question is, do I accept the evidence of these witnesses that this vibration has existed for so long and has recently been intensified in degree, though lessened in frequency," which shows beyond doubt that he was not confining his attention to the current or recent position.
It is also to be observed that the principal interest at the trial centred not so much on whether the various nuisances which were complained of had existed in 1952, but whether they still continued to exist notwithstanding the efforts which the Defendants had made (and successfully made according to them) to stop them. In these circumstances it is not surprising that the emphasis of much of the evidence, as of the Judgment also, was rather upon recent than upon former events. But it is clear to me that the Judge was intending to find, and did find, that a public nuisance existed before action brought in relation to vibration as well as to flying stones; and there is, in my judgment, no ground for disturbing his decision.
The observations which I have made with reference to vibration apply in the main also to the question of dust. Mr Beney's submissions as to the local effect of vibration do not, of course, apply to dust, which pollutes the air just as much as smoke or smells pollute it; and subject, of course, to such considerations as the direction of the prevailing wind it is a legitimate inference that ie one householder is affected by the emanation and deposits of dust then his neighbour will be affected likewise. On the other hand, a dust nuisance, such as that of which residents complained in the 1949 petition, and in their letters, is seasonal in that, generally speaking, it only exists in the summer. It could hardly be suggested, however, on that score, that a dust nuisance could not be actionable; nor was it suggested in the present case. What was suggested on behalf of the Company was that the inconvenience from dust of which witnesses gave evidence at the trial arose from the doors to the crusher being left open and that this causation did not arise until after these proceedings had been commenced. This, however, is not so, as is shown by Lewis's reports on dust in 1952. The evidence of Lewis and the 1949 petition and the complaints of the residents to which I have earlier referred leave me in no doubt that the learned Judge was amply justified in the view that a nuisance from dust existed in 1952, and that a sufficient number of people were affected by it to constitute, for relevant purposes, a class of Her Majesty's subjects. It is true that the Judge does not seem to hold in so many words that the nuisance existed in 1952, but I need not repeat on this subject what I said with regard to it in relation to vibration. It is quite clear that the Judge was fully alive to the importance of the position as it existed at the date of the Writ notwithstanding that his Judgment on this, as well as on the other issues, was directed more to later events.
Before proceeding to the final question which has to be considered, namely, whether, although a nuisance from vibration and dust existed when the action was started, the position has so improved since then that no injunction should issue, I should like to say a word or two on a question which resulted in the amendment of the Statement of Claim in these proceedings and on which there was some discussion before us. In the Statement of Claim, as originally delivered, allegations were made to the effect that the nuisances complained of caused damage to the occupiers of the adjacent houses and land; that the vibrations were a source of danger to the houses, and that the dust settled upon them and made them dirty and uncomfortable to live in. The Statement of Claim was subsequently amended by striking out these allegations, because it was thought that they were irrelevant in an action founded upon public nuisance (though, rather curiously, they substantially reappeared in some very detailed particulars of the Statement of Claim which were given later). The reasons underlying these amendments were supported before us by Counsel for the Appellants, and it was suggested, as I followed the argument, that in a public nuisance action evidence of individual experiences should not be received, although such evidence would be highly relevant in cases of alleged private nuisance. I cannot for myself accept this contention. Some public nuisances (for example, the pollution of rivers) can often be established without the necessity of calling a number of individual complainants as witnesses. In general, however, a public nuisance is proved by the cumulative effect which it is shown to have had on the people living within its sphere of influence. In other words, a normal and legitimate way of proving a public nuisance is to prove a sufficiently large collection of private nuisances. I am therefore of opinion that there was nothing improper or irregular in the Statement of Claim as originally delivered or in the reception at the trial of evidence of the local residents' experiences.
Finally, then comes the question already mentioned. Is the Attorney-General entitled to an injunction or ought some more limited form of relief to be granted in view of the various steps which the Defendants have taken since 1952? The Defendants contend that these measures have been so effectual that the proper order is to give the plaintiffs liberty to apply for injunctions with regard to vibration and dust; and that the injunctions granted by the judge should accordingly be discharged. Prima facie, if a nuisance, whether public or private, is shown to have existed at the time the Writ was issued the plaintiff is entitled to an injunction. If, however, between the Writ and the trial the nuisance has been abated the Court will usually stay its hand and merely give the plaintiff leave to apply in the action for an injunction if the trouble should recur. It seems to me, however, that it is quite impossible to say that the nuisance from vibration or dust had been wholly abated at the time when this action came to trial. As a result of installing the wagon drill towards the end of 1953 blasting had undoubtedly become far less frequent; on the other hand, its effects had become far more violent.
Dealing with this aspect of the matter the learned Judge said:
"There are three main dates complained of, but there are a number of other occasions when tremendous vibration is complained of. The three main dates, as I call them, are 1st July, 1955, 20th August, 1955, and 3rd January, 1956, and there is a mass of evidence to the effect that, whilst in recent time the explosions have been far fewer, and therefore the incidents far fewer.... they have been far more violent, at least on occasions, and those three dates I have given are three occasions. Each of them resulted in a petition signed by many people in the neighbourhood and presented to the local authority, complaining of this frightful shattering vibration."
The Judge then referred to some of the evidence which had been called before him as to these recent explosions and which left him in no doubt as to their violence. There is obviously, therefore, still ground for serious complaint of vibration, and in my judgment the learned Judge was quite right in granting an injunction.
With regard to dust, the learned Judge relied to some extent on what he saw when he visited the quarry premises towards the end of the trial. The main thing which impressed him was the amount of dust which resulted from the crushing operations. He said that he saw the door into the secondary crusher both open and shut, "and no one who saw it open could avoid seeing the cloud of stuff that came pouring out from inside into the air." Apart altogether, however, from the judge's own observations there was ample evidence from local residents to show that they were still being troubled at the time of the trial by dust from the quarry during dry weather. Mr and Mrs Percy Davies, Mr Johtn Thomas, Mrs Apperley, Mr D.B. Williams (who said "you can see the layers of white dust on the shed"), Miss Elisabeth Williams and Mrs Emaily Smith (both of whom complained of the effect of the dust which still settles on their soft fruit) and others all gave evidence to show that the dust nuisance still existed at the trial. There is no ground, therefore, in my opinion, upon which this court should interfere with regard to the injunction which the judge granted to restrain this nuisance.
Apart from the fact that the Defendants had not abated (or, at all events, had not wholly abated) the nuisances by vibration and dust when the action came on for hearing, there are certain additional considerations which support the granting of the injunctions. In the first place, there is expert evidence to show that these nuisances are not inevitable; they can be avoided by the exercise of proper care. As to vibration Mr Rosling said in evidence (Day 8 page 27):
"If the Defendants are ordered not to vibrate people's houses they will not have the least difficulty in doing that".
And as to dust Mr Lewis said (Day 6, page 7) that if the doors to the crusher were kept permanently shut he did not think that there would be anything to complain of from the crusher; and it is form the crusher; and it is from the crusher, as it appeared to the leaned Judge, that the dust complained of principally proceeds. The second consideration arises from the past conduct of the Defendants and their attitude from the outset to the very reasonable complaints which were brought to their attention. This element affords no ground in itself, of course, for any penal order being made; but it seems to me that an attitude of indifference to complaints tends to show irresponsibility and that, I think, is not an irrelevant consideration where the granting of an injunction is concerned. The Judge expressed strongly his view that the Defendants in the present case paid scant attention to the complaints of the residents or to the representations of the local authorities before (somewhat belatedly) the Writ was issued; that they were dilatory in adopting Mr Rosling's suggestion as to the wagon drill; and that they never really exerted themselves to ensuring that the door to the crusher was kept shut as Mr Lewis was constantly pressing them to do) or to take other steps by the use of water or otherwise to prevent the escape of dust from the crushing plant. I do not propose to add to this already lengthy Judgment by referring further than I have already done to the material upon which the learned Judge based his view as to the Defendants' conduct in the past, but it is obvious to me that the view was amply justified.
In my judgment, accordingly, the injunctions against which this appeal has been brought were rightly granted and the appeal fails. Mr Beney, on behalf of the Appellants, expressed some concern as to the future if the injunctions were not discharged. He said that, even though the expert witnesses had expressed views (as to vibration and dust respectively) that the quarry could be operated without occasioning a nuisance, an occasional incident might from time to time arise, unpredictable and unavoidable, which would or might lead to applications based upon contempt of Court. Mr Beney had especially in mind the fact that for no apparent reason some particular explosion was far more violent than those which normally occurred. Such an explosion had in fact occurred, for example, on 3rd January, 1956. Mr Wyndham Thomas, amongst other witnesses, gave evidence as to these particularly heavy explosions and said they may occur when blasting for what he described as a "tight corner." He said: "It is a very unusual shot, a freak blast which you get sometimes, that might not happen in another 10 years." The Appellant's fear that this kind of thing, if and when it happens again, may be regarded by the inhabitants as a breach of the injunction as to vibration and be followed by an application for sequestration or attachment. I would point out, however, that none of the inhabitants could make such an application. The Attorney-General alone could make it, and presumably he would not apply unless, in his view, the circumstances warranted it. It may well be that he would not found an application upon some isolated incident if he were satisfied that no reasonable care on the part of the Defendants could have avoided it. The Defendants will doubtless adopt such expert advice as may be given to them with somewhat greater energy than they have shown at times in the past.
Mr Beney's final submission was that the injunction as to dust should at all events be confined to such as proceeds for the crushing plant. This is undoubtedly the main, and very possibly the sole, source of complaint now, but I can see no reason for such a limitation, which might indeed be relied on by the Defendants as an implied permission to disseminate dust, as they used to do from other sources.
I would dismiss the appeal.
LORD JUSTICE DENNING: I entirely agree with the Judgment of Lord Justice Romer and have little to add. Mr Beney raised at the outset this question: what is the difference between a public nuisance and a private nuisance? He is right to raise it because it affects his clients greatly. The order against them restrains them from committing a public nuisance, not a private one. The classic statement of the difference is that a public nuisance affects Her Majesty's subjects generally, whereas a private nuisance only affects particular individuals. But this does not help much. The question, "When do a number of individuals become Her Majesty's subjects generally?" is as difficult to answer as the question "When does a group of people become a crowd?" Everyone has his own views. Even the answer "Two's company, three's a crowd" will not command the assent of those present unless they first agree on "which two." So here I decline to answer the question how many people are necessary to make up Her Majesty's subjects generally. I prefer to look to the reason of the thing and to say that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large. Take the blocking up of a public highway or the non-repair of it. It may be a footpath very little used except by one or two householders. Nevertheless, the obstruction affects everyone indiscriminately who may wish to walk along it. Take next a landowner who collects pestilential rubbish near a village or permits gypsies with filthy habits to encamp on the edge of a residential neighbourhood. The householders nearest to it suffer the most, but everyone in the neighbourhood suffers too. In such cases the Attorney-General can take proceedings form injunction to restrain the nuisance: and when he does so he acts in defence of the public right, not for any sectional interest: See Attorney-General v. Bastow. 1957 2 Weekly Law Reports, page 340. But when the nuisance is so concentrated that only two or three property owners are affected by it, such as the three attorneys in Clifford's Inn, then they ought to take proceedings on their own account to stop it and not expect the community to do it for them: See Rex v. Lloyd (1800) 4 Espinasse, page 200, and the precedent in Chitty's Criminal Law (1826), Volume III, pages 664-5. Applying this test, I am clearly of opinion that the nuisance by stones, vibration and dust in this case was at the date of the Writ so widespread in its range and so indiscriminate in its effect that it was a public nuisance.
But the Defendants have now taken such good remedial measures that objectionable incidents take place only rarely and then by accident. So far as stones are concerned, the injunction is absolute: but so far as dust and vibration are concerned it is dependent on it being a nuisance "to Her Majesty's subjects," that is, a public nuisance. The question then arises whether every rare incident is a public nuisance. Suppose six months went by without any excessive vibration and then there was by some mischance a violent explosion on an isolated occasion terrifying many people. Would that be a public nuisance? Would it subject the Defendants to proceedings for contempt? I should have thought that it might, but the punishment would be measured according to the degree to which the Defendants were at fault. I quite agree that a private nuisance always involves some degree of repetition or continuance. An isolated act which is over and done with, once and for all, may give rise to an action for negligence or an action under the rule in Rylands v. Fletcher, but not an action for nuisance. A good example is an explosion in a factory which breaks windows for miles around. It gives rise to an action under Rylands v. Fletcher, but no other action if there was no negligence: see Read v. J. Lyons (1947 Appeal Cases, page 156). But an isolated act may amount to a public nuisance if it is done under such circumstances that the public right to condemn it should be vindicated. I referred to some authorities on this point in Southport Corporation v. Esso (1954 2 Queen's Bench 182, at page 197). In the present case, in view of the long history of stones, vibrations and dust, I should think it incumbent on the Defendants to see that nothing of the kind happens again such as to be injurious to the neighbourhood at large, even on an isolated occasion.
I, too, would dismiss the appeal.
LORD JUSTICE PARKER: I entirely agree with both Judgments, and have nothing to add.
MR EDMUND DAVIES: My Lords, I accordingly ask that the appeal be dismissed with costs?
LORD JUSTICE DENNING: Yes.
Appeal dismissed.
