Jersey Unreported Judgments

[2008]JCA077B

COURT OF APPEAL

19^th May 2008

	Before     :		Dame Heather Steel, President; M. S. Jones, Esq., Q.C.; and J. W. McNeill, Esq., Q.C.
Between		Marc Silvanus Dorey Yates
And		Michaela Yates nee Van Neste		Plaintiff/RESPONDENT
And		Reg's Skips Limited		Defendant/APPELLANT

Appeal against the Order of the Royal Court of 11^th December, 2007 whereby the Respondents were granted an injunction preventing the Appellants from operating their business at or in the vicinity of Heatherbrae Farm.

Advocate C. G. P. Lakeman for the Appellant.

Advocate M. St. J. O'Connell for the Respondent.

JUDGMENT

JONEs ja:

Background

1.        This is the judgment of the Court.

2.        The respondents are Mr and Mrs Yates. Their present home is a substantial detached house called "Les Ormes". When they moved there, in 1999, the neighbouring property to the south, "Heatherbrae Farm", was operated as a dairy farm. In 2002, the dairy herd was sold and planning permission for a change of use from "redundant dairy buildings to dry storage" was applied for and granted. Thereafter, a number of agricultural buildings were let for storage. To enable the appellant company to carry on business there, a further planning application for a change of use of Heatherbrae Farm "from dry storage to commercial" was approved in May 2005 and the appellant took up occupation of the property as tenant, in July 2005.

3.        The appellant company is owned by Mr and Mrs Pinel, and operates a skip hire business. When full skips are returned to Heatherbrae Farm, the loads are sorted into material which must be dumped separately from other material, and waste that requires recycling. A mechanical digger is used in the sorting process. Once sorted, the materials are transported to appropriate dumps or recycling sites.

4.        In the winter of 2005-2006, Mrs Yates became aware of what she describes as "high levels of noise" coming from the farm. She noticed the noise during the day when Mr Yates was at work. Mrs Yates mentioned it to her husband on several occasions but, for a number of reasons, he did nothing about it until the spring of 2006 when, under pressure from Mrs Yates, he made certain enquiries. It was only then that the respondents discovered that the appellant's skip hire business was being operated from the farm premises.

5.        Mr Yates complained to the Planning Department, as a result of which enforcement officers visited Heatherbrae Farm in May 2006. They directed that mechanical sorting of waste should cease and invited the appellant to seek a variation of the planning permit granted in 2005, by way of a request to be submitted to the Minister for Planning and the Environment ("the Minister"). Later that month, the appellant made a request for reconsideration of its planning permit, seeking permission to use a mechanical digger for sorting and requesting an extension of the permitted hours of use of the site.

6.        On 21st September 2006, the Minister decided to defer his determination of the appellant's request, for three months. The appellant was invited to demonstrate, during that time, that appropriate measures could be taken to reduce the noise level. In the interim, the appellant was permitted to undertake limited mechanical sorting of waste. The respondents sought leave to apply to the court for Judicial Review of, among other things, the Minister's decision to defer, but leave was refused on 17th November 2006 on the ground that the appropriate remedy for them to pursue was a private law action in voisinage. In the meantime, by letter before action, dated 12th October 2006, the respondents' legal advisers asked the appellant company to desist from using mechanical diggers for any purpose on site and, within a period of three months, to desist from sorting refuse there.

7.        On 10th January 2007, the enforcement section of the Planning Department served a notice on the appellant, requiring it, among other things, to cease the use of a mechanical digger for the sorting of waste on site. In February, the appellant appealed the notice which, after taking legal advice, the Minister withdrew. The appellant company thereupon resumed its use of the mechanical digger.

8.        On 23rd April 2007, by Order of Justice in the Samedi Division of the Royal Court, the respondents began proceedings against the appellant company. The claim was "brought under the doctrine of voisinage; and/or in the alternative on the basis of the tort of nuisance." (Order of Justice, paragraph 4.) The respondents sought damages and an injunction to prevent the appellant company from operating its skip business at or within one mile of Heatherbrae Farm.

9.        Evidence was heard on 18th and 19th October 2007.  By Act of Court of 11th December 2007, the Royal Court granted an injunction, preventing the company from operating its skip business at or in the immediate vicinity of Heatherbrae Farm, such injunction to come into force on 1st May 2008. It is against the granting of that injunction that the appellant company now appeals.

10.      On 29th April 2008, the Royal Court stayed the injunction pending the determination of this appeal.

The Parties' Submissions in the Royal Court

11.      In the skeleton argument which it lodged in the Royal Court, the appellant referred to the legal basis of the respondents' claim in the same terms as the respondents themselves had done in the Order of Justice - that it had been "brought under the doctrine of voisinage; and/or in the alternative on the basis of the tort of nuisance." In paragraph 1.2 of their written closing submissions, however, the respondents said this:-

"There does not appear to be any issue between the parties as to what the law on this area is. In the case of Searley v Dawson [1971] JJ 1687 the Royal Court, presided over by the Bailiff Sir Robert Le Masurier found that there existed in Jersey a duty between neighbours:

"So to use (their) property as not to injure the rights of another."

12.      In the same paragraph of their closing submissions, the respondents went on to explain that they were now departing from their case of nuisance, and were relying wholly on the doctrine of voisinage in support of their claim.

13.      In its closing submissions, the appellant company set out its position on the applicable law as follows:-

"It is agreed between the parties that following the decision of both the Royal Court and subsequently the Court of Appeal in Gale and Clarke v Rockhampton Apartments and Antler Properties C. I. Limited ... ... it is now clearly judicially confirmed that the doctrine of Voisinage exists within the laws of Jersey and that the English concept of the tort of nuisance has not yet been assimilated into this jurisdiction."

The appellant thus conceded that the law of voisinage applied in the circumstances of this case.

14.      We pause to observe that Gale and Clarke v Rockhampton Apartments Limited and Antler [2007] JLR 27 was a loss of support case, in which the plaintiffs alleged a breach by the defendants of the duty of voisinage. One of the questions which the court had to determine was whether Searley v Dawson, also a loss of support case in which the defendant was found liable to the plaintiff in voisinage, was correctly decided. In Gale and Clarke, the Royal Court held that it was, and the Court of Appeal agreed. It was neither necessary nor appropriate for either court to attempt exhaustively to define the limits of the doctrine of voisinage, and neither court did so.

The Royal Court's Judgment

15.      In light of the parties' joint approach to the law, the issues for determination by the Royal Court were, essentially, factual. The central question which the court addressed was "whether the arrival of the skip business conducted by the defendant company has given rise, by reason of the nature of that business, to a breach of the quasi-contractual duty in voisinage." (Judgment of the Royal Court, paragraph 9.) Having considered the evidence relevant to that question, the Royal Court held as follows:-

"It follows that, in our judgment, the activities of the defendant company at Heatherbrae Farm constitute a breach of the duty of voisinage which is owed to the plaintiffs."

Procedural History after Judgment

16.      By notice of appeal, dated 9th January 2008, the appellant company stated a single ground of appeal, based on what it averred was a change of circumstances "that would justify a different decision" from that arrived at by the Royal Court. By that date, the company had applied for planning permission to build "certain roofed structures and the introduction of noise reduction processes" at Heatherbrae Farm, and a decision was expected on 15th January 2008. In the event, the application was refused. By amended notice of appeal, dated 25th February 2008, the appellant departed from the change of circumstances ground, and tabled four new grounds. As elaborated in the company's written contentions, they are:-

1)        "The incorrect Defendant was held liable under the common law of voisinage";

2)        "Further or alternatively there was an erroneous application of the law when looking at the needs of the average person in the particular neighbourhood";

3)        "Further and alternatively, there was an erroneous application of the law when looking at whether the Defendant Company was acting lawfully";

4)        "Erroneous consideration of expert evidence".

17.      It is implicit in the terms of these grounds, particularly in those of ground 1, that the appellant company was abiding by the concession that it had made in the court below, namely that, in principle, the creation of excessive noise can amount to a breach of the duty of voisinage.

18.      Until the day before the hearing before us was due to commence, as far as this court and the respondents were concerned it remained the appellant's position that the issues in the appeal fell to be determined according to the law of voisinage. Between 8 and 9 pm on that day, however, a further bundle of documents was delivered to each member of the court. At or about the same time, copies were emailed to those representing the respondents. These papers disclosed a radical change of front on the part of the appellant. Under the bland heading "Response to the Respondents' Contentions on Appeal: The incorrect party", the appellant sought to withdraw its concession that the issues in this case fell to be determined by application of the doctrine of voisinage, and to introduce a new ground of appeal, to the effect that "in the correct construction of voisinage as it currently stands in Jersey Law, there is to be a restriction of its application to damage to land or buildings which is not the case here."

19.      When the court convened on 21st May 2008, Advocate O'Connell, who appeared for the respondents, advised us that he had seen the new material for the first time at 7.45 that morning and had not yet had time to consider it. We granted him time to do so. Before rising, we heard argument on a preliminary matter that had arisen, as we shall now explain.

The "Fresh Evidence" Application

20.      Among the supporting documentation which was lodged together with the appellant's written contentions for the appeal were A3 copies of two two-dimensional A4 graphs which were exhibits in the Royal Court proceedings. The A3 copies bore annotations which did not appear on the A4 versions. On 13th May 2008 Messrs Appleby, who represented the respondents, wrote to the Assistant Judicial Greffier with reference to the A3 annotated graphs and expressed concern at what they described as fresh evidence having been adduced without leave. That letter was copied to Messrs Sinels who now represented the appellant company. Sinels in turn applied to the court for leave to adduce the annotated graphs as fresh evidence "to the extent necessary" to do so, whilst maintaining that the material which was the subject of the application was not fresh evidence. 

21.      Advocate Lakeman, who appeared before us for the appellant company, sought to persuade us that the annotated graphs were no more than a consolidation of two pieces of evidence that were before the Royal Court. The first, the two dimensional A4 graphs, showed decibel levels, recorded in the garden of the respondents' property on 3rd and 4th October 2007, plotted on the y-axis; against time of day, plotted on the x-axis. These were produced by the respondents' expert, Mr Gosling, and were referred to during the trial. The second piece of evidence comprised handwritten notes prepared by Mrs Yates of what was happening at certain times during these same days. We were told that the appellant's landlord, Mr Taylor, had annotated the A3 copies of the A4 graphs with material taken from Mrs Yates' notes. So, for example, a decibel peak that could be seen on the graph for 3rd October some time between the recorded times of 13:12 and 14:24 could be understood, from Mr Taylor's annotations based on Mrs Yates' notes, to have been caused by a tractor passing at 13:31.

22.      On hearing submissions from Mr O'Connell in opposition to the appellant's application, it became clear to us that, in annotating the graphs, Mr Taylor had to have performed calculations and/or to have conducted an exercise of judgment. The time intervals plotted on the x-axis of the graphs were each of one hour and twelve minutes in length, starting at 06:00 and ending at 19:12. (See Figure 1 below) Each of the events noted by Mrs Yates and annotated on the graphs occurred at a time which fell between the fixed time markers. Mr Taylor determined for himself where along the x-axis an event occurred and then drew a vertical line at that point, parallel to the y-axis, through the decibel plot. (See Figure 2 below) The reliability of that exercise was controversial. For example, as Mr O'Connell pointed out, on the graph for 3rd October, Mr Taylor had written the figures and words "10.49 NOISY SKIP LORRY" below a vertical line drawn by him through a point on the plot where a relatively low decibel level was recorded. If the vertical line drawn by Mr Taylor is extended downward to the x-axis, however, it passes to the left of (i.e. is earlier than) the time point 10:48.

Figure 1

Figure 2

23.      In our judgment, the annotated graphs are more than simply a consolidation of evidence that was before the Royal Court. In particular, Mr Taylor's annotations constitute fresh evidence.

24.      Under the provisions of Rule 12(1) of the Court of Appeal (Civil) Rules 1964, the Court of Appeal has "full discretionary power to receive further evidence on questions of fact". The medium by which such evidence may be received is, however, tightly circumscribed. It must be "by oral examination in court, by affidavit, or by deposition taken before the Viscount or on commission." (ibid.) The appellant's application was restricted to receipt of the annotated graphs. Having regard to the terms of the Rule, it was not open to us to grant that application.

25.      Even if the evidence sought to be adduced had been in a form in which we could have received it, we would have declined to do so. It could have been exhibited at trial, and we were not satisfied that there were special reasons for allowing it to be received now. (See Mayo v Cantrade [1998] JLR 173.)

26.      Accordingly, we refused to allow the appellant to adduce the annotated graphs.

27.      Having disposed of that preliminary matter, the court adjourned to 11.30 am to allow the respondents time to consider their position in light of the withdrawal of the concession made by the appellants in the Royal Court. When we reconvened at 11.50 am Mr O'Connell advised us, understandably, that he did not wish there to be further delay in the determination of this appeal, beyond the minimum necessary. He asked for, and was granted a further adjournment until 2.30 pm at which time he expected to be able to respond to the appellant's new ground of appeal. The court resumed at that time, and we proceeded to hear submissions from both parties.

Whether the Creation of Excessive Noise is Actionable under the Law of Voisinage

28.      Mr Lakeman's principal submission was that the law of voisinage may be applicable where property is damaged as a result of activities carried out on neighbouring property. That was the position in Searley and in Gale and Clarke. There is, he submitted, no authority for the proposition that the creation of noise which is such as to be intolerable to neighbours is actionable under the law of voisinage. Largely by reference to the writings of Pothier, he sought to persuade us that the scope of the doctrine of voisinage is not wide enough to provide a remedy to a person whose enjoyment of his property is interfered with by the generation of excessive noise by his neighbour. Largely also by reference to the writings of Pothier, Mr O'Connell sought to persuade us to the opposite effect.

29.      In Gale and Clarke, at paragraph 157, this court considered that the limits of the doctrine of voisinage in Jersey might be set at a point which excludes "merely personal harm or inconvenience". The scope of the doctrine was regarded as being further restricted by the fact that the principal obligation to which it gives rise concerns the marking out of boundaries - "bornage". Consequently, concluded the court, "whilst some of the rights and obligations set out by Pothier may now be covered by other areas of Jersey Law, where there are contiguous properties and where there is substantial damage to land or buildings, these should be covered by voisinage."

30.      It may be thought, therefore, that some support for the appellant's new argument is to be found in Gale and Clarke. We are of the opinion, however, that it is unnecessary for us to explore the boundaries of the doctrine of voisinage for the purposes of this appeal. Mr Lakeman did not seek to argue that a householder who complains of being exposed to excessive noise created by his neighbour has no right of action. Indeed, he expressly accepted that such a householder has such a right. His position on that is unsurprising, given the authority of Key (née Shaw) v Regal [1962] JJ 189 and Magyar and Magyar (née Autumn) v Jersey Strawberry Nurseries [1982] JJ 147. In Key, the parties were neighbours. The defendant was carrying out building work on his land which the plaintiff alleged was, among other things, noisy and that, in consequence of the noise and other features of the work, her health had suffered.  The Royal Court held that the noise to which she had been exposed had not "exceeded the limit which any normal ordinary person could be expected to have to bear". It is clear from the report, however, that the plaintiff would have succeeded in her action if the noise had exceeded that limit. In Magyar, a complaint by a householder of excessive noise emanating from a neighbour's property was upheld by the Royal Court and an injunction was granted against the defendant. No reference is made in the Judgment in Key to the law of nuisance or to the doctrine of voisinage. In Magyar, the noise complained of was described as constituting a "nuisance".

31.      Whether the rights and obligations of the parties to this action can be said to fall within the law of voisinage or are to be determined by application of the principles which can be drawn from the decisions in Key and Magyar, in our opinion the essential facts which the respondents had to establish in order to succeed were the same in either case. They had to satisfy the court that the appellant's activities were productive of noise which, on an objective view, exceeded that which the "average" or "ordinary" or "normal" person could be expected to tolerate. These adjectives, which are to be found in the Judgments in Key and Magyar, appear to be used synonymously and are manifestly intended to distinguish such persons from those who are over-sensitive.

32.      Had we considered it necessary to identify the precise jurisprudential basis on which the undoubted right of action under discussion in this case rests, we would have had cause for concern in two respects. First, because of the way in which this litigation has developed, we do not have the benefit of the Bailiff's views on the matter. These would have been highly valued, as coming from a judge "well versed in the Customary Laws of this island" as Hoffman JA (as he then was) put it in Re Barker (1985-86) JLR 186, 191. Second, a determination that the issues in this case fall to be decided according to the principles of the law of voisinage would be likely to have implications, which have not been explored in argument, for other cases. If a right of action in a noise case arises under voisinage, for example, that right endures for ten, rather than three years. (Gale and Clarke cit. sup., at paragraphs 72 and 157) We have not been addressed on what the practical consequences, if any, of that might be. Further, as noted in paragraph 29 above, the doctrine of voisinage has strong links with bornage. It may be open to argument, therefore, that, even if occupiers of contiguous properties have a right of relief from excessive noise, based on the quasi contractual obligations of voisinage, any right of relief enjoyed by remoter neighbours, who are close enough to be adversely affected by extreme noise, rests on different legal principles. If that were so, where the plaintiff seeks damages, as happened in Magyar, different prescriptive periods might apply as between contiguous occupiers and more remote neighbours.

33.      Whilst such issues may be capable of resolution without difficulty, resolving them might involve some development of the Customary Law. We believe that it is right that, wherever possible, such development should be considered in the first instance by the Royal Court, rather than by the Court of Appeal without the Royal Court's assistance.

34.       As we note in paragraph 16 of this Judgment, the first of the appellant's amended grounds of appeal involves consideration of the question who is the proper defendant in an action brought under the law of voisinage. Although we do not think it necessary to decide whether or not this case falls within the law of voisinage, it may do so and, accordingly, we determine that ground upon the hypothesis that it does. The remaining three grounds of appeal raise questions that fall to be determined regardless of the jurisprudential basis of this action.

Ground 1 - "The incorrect Defendant was held liable under the common law of voisinage."

35.      The essence of the appellant's submissions in support of this ground is expressed in this way:-

"lt is the respectful submission of (the appellant) that the correct position in law is that it is only the landowner who can be found liable in voisinage and this duty can not be delegated or avoided by the owner. A finding that (the appellant) was liable under voisinage is an error of law." (Written contentions for the appellant, paragraph 10.)

36.      If, as a general proposition, subjecting one's neighbour to noise which is more than tolerable is a breach of a quasi contractual obligation in voisinage, at first sight it would seem surprising if the question whether such an obligation was owed in any particular case depended on the nature of the noisy neighbour's right to occupy. Advocate Lakeman, however, contended that support for his argument is to be found in the Judgment delivered by the learned Bailiff in this case, in other Jersey cases which deal with voisinage and in the writings of Pothier and Houard.

37.      In his written submissions, Mr Lakeman quotes from paragraph 33 of the Bailiff's Judgment, which is in these terms:-

"... the duty in voisinage is a duty which cannot be delegated or avoided by an owner. See the remarks of Le Masurier, Bailiff, in Searley v Dawson [1973] JJ 1687 at 1702. If, therefore, the landowner lets his land to a tenant who conducts a business which the landowner knows, or ought to have known, is harmful to the interests or reasonable expectations of a neighbour, he too will be in breach of the duty of voisinage."

38.      Mr Lakeman describes that passage as "correct" and suggests that the following words, to be found at paragraph 32 of the Judgment, are inconsistent with it:-

"It follows that, in our judgement, the activities of the Defendant Company at Heatherbrae Farm constitute a breach of duty of voisinage which is owed to the plaintiffs."

39.      There is, in our view, no inconsistency between these two passages. In paragraph 32, the Royal Court holds that the activities of the appellant at Heatherbrae Farm "constitute a breach of the duty of voisinage which is owed to the plaintiffs". Paragraph 33 begins with the words "We note, en passant, that ... ..."  It is clear, in our view, that, having found the tenant in breach of its obligation in voisinage, the court was simply pointing out that an action may also have lain against the landlord. That is because, on the authority of Searley, "he too will be in breach of the duty ... ...." (Emphasis supplied)

40.      The appellant's argument seems to be that, since a duty in voisinage "cannot be delegated or avoided by an owner of property", no one other than the owner can owe such a duty. In our opinion, that conclusion does not follow from the premise. Duties under voisinage arise under a quasi contract between neighbours. If a duty in voisinage is owed by a landowner to a neighbour, such duty is created by the quasi contract to which they are parties. In a case such as this, we are unable to identify any basis in principle on which it could be said that the existence of a quasi contract to which the landowner and his neighbour are parties precludes the existence of a separate quasi contract to which the landowner's tenant and the same neighbour are parties.

41.      Further, none of the authorities cited to us directly supports the proposition that a duty of voisinage cannot be owed both by an owner and by an occupier of the same property. It is correct to say, as the appellant submits, that there are passages in the authorities in which the duty in voisinage is declared to be owed by an owner of land. That, of itself, however, does not warrant the appellant's further contention, that "this (the reference to "owner" as the person owing the duty of voisinage) is an exhaustive list of the correct defendants and therefore only those with proprietary interest in the land can be held to (a) owe a duty under voisinage and (b) be held liable in voisinage". Indeed, properly understood, certain of the authorities negative the appellant's further contention.

Authorities Cited in Support of Ground 1

42.      Searley v Dawson is the first of the authorities relied on by the appellant. In that case, the plaintiff and the defendant owned adjoining properties at Gorey. The defendant demolished his house, "Oldholme", and replaced it with a larger property. The demolition and reconstruction caused serious cracking to the front and rear elevations of the plaintiff's house and internal cracks to rooms on the ground and first floors. The ceiling on the first floor landing became dangerously unstable. The defendant had engaged an architect, an engineer and a building contractor, but the plaintiff sued only him. The court found that the damage was caused by a negligent failure to underpin the western gable wall of the plaintiff's house during the course of the building works, but it appears that the defendant was not held to have been personally at fault. He was, nevertheless, found liable to the plaintiff for his loss, on the following rationale:-

"Mr. Searley and Mr. Dawson are neighbours.

"Each is under an obligation to the other arising quasi ex-contractu not so to use his property as to cause damage to the property of the other, and an obligation pre-supposes a right.

"Mr. Dawson cannot divest himself of that obligation by transferring it to another.

"Resulting from the use made by Mr. Dawson of his property that of his neighbour sustained damage". (Searley v Dawson cit. sup., page 1702.)

43.      Mr Lakeman seeks to derive support from that case in two respects. The first, he submits, is that it "clearly establishes liability between ... ... the owner of the property and (his) neighbours". (Written contentions, paragraph 13.) The second is that the court held that the duty owed by the defendant to the plaintiff was not delegable.

44.      Since the defendant was, in fact, the heritable proprietor of "Oldholme", it is unsurprising that, in the discussion of his duties as a neighbour, he is referred to as "the owner". Further, as we observe in paragraph 40 above, the fact that a duty owed by O to N is not, in law, delegable does not, of itself, mean that there cannot exist an identical, but independently constituted duty, owed by T to N.

45.      In our opinion, Searley points to a resolution of the issue raised in the first ground of appeal in this case which is directly contrary to the appellant's proposition. As this court observed in Gale and Clarke, "(t)he first direct reference in Jersey Jurisprudence to what has, in this litigation, been referred to as 'the doctrine of voisinage' appears in the decision of the Royal Court in Searley v Dawson ... ..." (cit. sup., at paragraph 8) In holding that the doctrine of voisinage applied to the facts of the case before it and that, therefore, the defendant owed a non-delegable quasi contractual duty to the plaintiff not so to use his property as to damage his neighbour's property, the court in Searley adopted Pothier's statement of principle which underpinned the doctrine. That statement of principle is in these terms:-

"Du voisinage

"Le voisinage est un quasi-contrat qui forme des obligations réciproques entre les voisins, c'est-à-dire, entre les propriétaires ou possesseurs d'héritages contigues les uns aux autres." ['Voisinage' is a quasi-contract formed by the reciprocal obligations between neighbours, that is to say, between the owners or persons in possession of properties adjacent to one another.]

46.      Pothier saw the quasi contractual obligations that he identified as flowing from the relationship that exists among neighbours, not from the fact of ownership of property. Thus, he was able to say that these obligations were between owners or persons in possession. As we read the Judgment in Searley, Pothier's statement of principle was adopted in its entirety by the Royal Court. In its concluding passage, quoted in paragraph 42 above, the court makes it clear that the defendant's obligation to the plaintiff arose out of their relationship as neighbours, not from the defendant's title as owner.

47.      The next case relied on by the appellant is Gale and Clarke v Rockhampton Apartments Limited [2007] JLR 27, in which the Bailiff (Bailhache) cited a passage from Stéphanie Nicolle's book, The Origin & Development of Jersey Law an Outline Guide (2005 ed.) (See paragraph 24 of the Judgment.)  In that passage, the author writes of "part of that area of law relating to property known as voisinage which deals with the reciprocal rights and obligations of neighbouring property owners." So, submits the appellant, the court in Gale and Clarke "has stated categorically that the duties owed under voisinage (are owed) between neighbouring property owners". (Original emphasis, appellant's written contentions, paragraph 15.)

48.      In our opinion, the appellant's assertion is ill-founded. The issues between the parties in Gale and Clarke were (a) whether or not voisinage was part of the law of Jersey and, if so, (b) whether or not the plaintiff's right of action had prescribed. In order to advance her argument on the first issue, it was necessary for counsel for the defendant to submit that Searley was wrongly decided. The Royal Court rejected that submission, and held that voisinage was part of the law of Jersey. (Paragraph 23 of the Judgment.) The court then went on to "add a few words on the relationship between voisinage and the tort of nuisance." It was in that context that it quoted from Stéphanie Nicolle's work. In these circumstances, in our opinion, the Royal Court can not be taken to have negatived the existence of any duty of voisinage owed by neighbouring tenants. That is particularly so, given that the Bailiff had earlier in his Judgment, and without comment, quoted the passage from Searley in which the Royal Court set out Pothier's statement of principle, referred to in paragraph 45 of this Judgment, in which voisinage is described as giving rise to obligations "between the owners or persons in possession of properties adjacent to one another".

49.      The appellant relies also on a later passage of the Judgment in Gale and Clarke, in which the Bailiff says, "The duty of a landowner not to use his land in such a manner as to cause harm or injury to his neighbour is not founded in tort; it is founded in voisinage under quasi-contract." (Paragraph 27 of the Judgment.) Mr Lakeman submits that the Bailiff intended these words to mean that voisinage is a duty owed by landowners only and by no one else. We do not accept that the Bailiff can have intended to convey such a meaning in a passage which deals expressly with the jurisprudential foundation of the duty, rather than with the identity of those on whom the duty lies.

50.      The appellant then turns to the Judgment of the Court of Appeal in Gale and Clarke. At paragraph 168, McNeill JA says this:-

"... ... it seems to me that Pothier's classification of this concept as a "quasi contract" continues to be acceptable. Pothier deals with quasi contracts in his Traité des Obligations Volume 1, Section 2 paragraphs 113 and following (in the 1806 Evans translation):-

"[113] A quasi contract is the act of a person permitted by the law which obliges him in favour of another, without any agreement intervening between them.

"[114] In contracts, it is the consent of the contracting parties which produces the obligation; in quasi contracts there is not any consent. The law alone, or natural equity, produces the obligation, by rendering obligatory the fact from which it results. Therefore these facts are called quasi contracts; because without being contracts, and being in their nature still further from injuries, they produce obligations in the same manner as actual contracts."

51.      At paragraph 169, the learned Judge continues:-

"These straightforward statements again allow one to understand why a jurist such as Pothier might choose to classify the matters of which he speaks in "du voisinage" as quasi contracts: one cannot necessarily expect the neighbours to enter into individual contracts but the issues which might arise between them are remote from "injuries". What he seeks to identify is that the nature of the relationship is one which produces actual obligations just as if there had been a contract. This method of classification and analysis, accordingly, reaches a similar result to that reached in other areas of the law of obligations where strict or absolute liability is imposed."

52.      These passages are relied on by the appellant as "clearly showing the relationship between voisinage and quasi-contracts". We would agree, but we part company from Mr Lakeman when he goes on to argue that, where the relationship of landlord and tenant exists, and where the tenant has the landlord's consent to carry on business on the land:-

"The landlord is still ... ... the beneficial owner of the land, and has allowed his occupier, with his consent to commit an alleged breach of voisinage, therefore (the) quasi-contractual relationship remains only between him and the neighbour. It is on this ground that it is submitted that the relationship in voisinage is only between landlords or landowners; namely through the consent and control the landlord still has over his land."

53.      In our view, it does not follow from the fact that the landlord has given his consent to the tenant's occupation of the land that he has thereby consented to a breach by the tenant of the duty of voisinage. Even if the landlord consents to actings on the part of his tenant which constitute a breach of the duty of voisinage, we can identify no proper basis in principle on which it could be said that such consent precludes the existence of a quasi contractual relationship between the tenant and his neighbour. 

Decision on Ground 1

54.      In our judgment, this ground of appeal must fail. The duty of voisinage is an obligation incumbent on neighbours owed quasi ex-contractu. It arises from equity. The statement of principle enunciated by Pothier and adopted by the Royal Court in Searley is to the effect that both owners and occupiers owe duties in voisinage. That is entirely consistent with the proposition that the quasi contractual relationship which exists between neighbours arises out of contiguity. There is nothing in principle or precedent to suggest that the nature of an occupier's right to occupy is relevant to the question whether he owes a duty in voisinage. Nor is there anything in principle or precedent to suggest that the existence of a non-delegable duty in voisinage owed by a landlord to a neighbour precludes the existence of such a duty owed by his tenant to the same neighbour.

Ground 2 - "Further or alternatively there was an erroneous application of the law when looking at the needs of the average person in the particular neighbourhood."

55.      Under reference to Magyar, the appellant contends that the Royal Court failed to consider whether the noise emanating from Heatherbrae Farm "would (a)ffect the average Mr and Mrs Jersey, and not merely looking at the impact the alleged voisinage (sic) would have on an over sensitive individual ... ... and by failing to apply the correct legal test ... ... erred in law." (Appellant's written contentions, paragraph 32.)

56.      By reference to various passages from the evidence of Mr Yates, the appellant seeks to persuade us that the Royal Court fell into error, and submits that, in comparison with her husband, Mrs Yates was "overly sensitive", and "more susceptible to noise than Mr Yates". It is also said on behalf of the appellant that the complaint made by the respondents was "primarily due to the loss of enjoyment of the garden", but that the Royal Court "has not properly considered or taken into account the average use of the garden by (an) average person; the seasonal nature and use of the garden, as Mr and Mrs Jersey."

Decision on Ground 2

57.      In our opinion, this ground of appeal should be rejected also. It is clear to us that at the heart of the respondents' complaint lay the noise generated by the appellant's business. Whilst it is correct to say that Mrs Yates testified that the noise was so distressing that she rarely ventured into her garden, she also said that it "invaded her home and her thoughts". She talked of being ill in bed during the day, and being "awoken by the sudden crashing noises." (Judgment of the Royal Court, paragraph 14.) The issue which the Royal Court had to determine, therefore, was not whether the respondents made more use of their garden than the average householder, but whether or not the noise created by the appellant's activities was excessive.

58.      We do not accept that, in determining that issue, the Royal Court failed to apply the correct legal test. At paragraph 8 of the skeleton argument for the respondents, which was lodged before the trial, they give this account of the factual background to the dispute:-

"Upon becoming concerned by the persistence of these increased noise levels the Plaintiffs made enquiries and ascertained that the Defendant was the occupier of part of Heatherbrae Farm and was the cause of all of these increased noise levels. It is striking, and the Plaintiffs will say that it speaks for itself, that prior to the arrival and operation of the Defendant's business they had lived happily and without complaint at Les Ormes for six years or so; but that the introduction of the Defendant's business as a neighbour has resulted in complaints being made because the noise levels are so high that no neighbour should reasonably be expected to tolerate them." (Emphasis supplied.)

59.      At paragraph 10 of the same document, they say this:-

"Members of the Court will have to form an assessment of each witness and to judge whether the matters complained of are reasonable or unreasonable; whether the witnesses are over-sensitive to the noise levels experienced at Les Ormes, or whether they are justified in raising complaints." (Emphasis supplied.)

60.      Finally, paragraph 13 of the skeleton contains this passage:-

"In the final analysis it is contended that the Court will form its own view based on the evidence, drawing on common sense, experience and a reasonable assessment of what each member of the Court, as reasonable and objective individuals, would feel if they occupied Les Ormes and were required to live next door to an industrial activity such as that operated by the Defendant." (Emphasis supplied.)

61.      In his opening at trial, Advocate O'Connell for the respondents drew the court's attention to his skeleton, and read out those parts of paragraphs 9, 10 and 13 which deal with the need for an objective assessment of the evidence to be made.

62.      In its closing submissions, the appellant cited the following passage from Magyar:-

"We have found that there is a nuisance, the level of noise being in our opinion such that the average person cannot be expected to put up with it ... ..."

63.      In these circumstances, in our opinion, the Royal Court can not have failed to have in mind the need to consider whether the noise emanating from Heatherbrae Farm would affect "the average Mr and Mrs Jersey", rather than "an over sensitive individual".

64.      Further, both parties engaged experts, both of whom assessed the level of noise emanating from Heatherbrae Farm by reference to objective criteria. The evidence of these experts was before the Royal Court. The appellant does not contend that, on the evidence before it, the Royal Court was not entitled to hold that the "average person" test was met.

Ground 3 - "Further and alternatively, there was an erroneous application of the law when looking at whether the Defendant Company was acting lawfully."

65.      In support of this ground, the appellant refers to Key (cit. sup.) and, in particular, to the passage at page 192, which is in these terms:-

"... ... the occupier of land can do with that land only that which is lawful, a great limitation at the present day, and, within that which is lawful, that which will not give rise to emanations which might unreasonably interfere with his neighbours."

66.      Reliance is placed on these words for the following proposition:-

"lt is respectfully submitted that in failing (to) consider if the permit (from the Planning Department) made (the appellant's) use of land "lawful", the Learned Bailiff erred in law, and erroneously found (the appellant) to be in breach of (its) duties under voisinage."

67.      In reply, the respondents characterise that submission as "wholly misconceived". We agree. The passage in Key on which the appellant seeks to rely identifies two limitations which are placed on an occupier's freedom to use his land as he pleases. The first is that he can do "only that which is lawful". The second, "within that which is lawful", is that the occupier may not do that which will "unreasonably interfere with his neighbours." The appellant's submission conflates these two separate limitations and suggests that, if the use of land is lawful in the sense that it is within the scope of a planning permit, it cannot be unlawful in the sense that it breaches the duty of voisinage. That proposition is clearly in direct conflict with the passage in Key on which it purports to found, and we reject it.

68.      The appellant relies, also, on Gillingham v Medway (Chatham) Dock Co Ltd [1993] Q.B. 343. In that case, the defendant was granted a long lease of part of a disused naval dockyard and applied to the plaintiff local authority for planning permission to develop the land as a commercial port. The plaintiff, in considering that application, was aware that the residents living by the two approach roads to the port would be affected 24 hours a day by the movement of heavy goods vehicles to and from the port, but decided to grant planning permission because of the employment and economic benefits for the area which would result from the operation of a commercial port. The volume of movement of heavy goods vehicles along the approach roads seriously affected the residents' enjoyment of their properties. The plaintiff, acting under section 222 of the Local Government Act 1972 "to promote or protect the interests of the inhabitants in its area," brought an action for declarations that the defendant and its sub lessees operating in the port had created a public nuisance. It sought injunctions to restrain them from permitting heavy goods vehicles to travel to and from the port between 7 pm and 7 am. The question for the court was whether the disturbance was an actionable public nuisance.

69.      Three passages from the Judgment of Buckley J. are cited by the appellant. The first, to be found at page 357, is in these terms:-

"In other words, those who live close by public highways must accept the inevitable disturbance for the greater good of the public. Certainly this principle applies in private nuisance - Sturges v. Bridgman (1879) 11 ChD 852, 856 - and I can see no reason for a different approach in public nuisance, at least of the kind alleged in this case. Also many types of road which might otherwise give rise to noise nuisance will have been constructed pursuant to statutory powers after all relevant planning procedures have been complied with and compensation paid where appropriate. Actions in nuisance, if successful, would make a nonsense of the whole scheme. The private right must usually yield to the greater public interest."

70.      The appellant submits that the principle to be drawn from that part of the Judgment is that, where planning permission has been given and the public interest has been taken into account, the public interest should prevail over private rights. We disagree. What Buckley J. is considering in that passage is the question whether a private law right of action in nuisance is available where the nuisance is the inevitable consequence of the exercise of a statutory power. It is the grant of the statutory power, by Parliament, in the public interest, which trumps the private right in these circumstances, not the grant of planning permission.

71.      The second passage relied on by the appellant is this:-

"This brings me to perhaps the most important and interesting aspect of the case. The dock company obtained planning permission to operate the dock as a commercial port, which cannot sensibly be done other than on a 24-hour basis. In any event, the plaintiff, as I have found, knew that 24-hour operation was anticipated and no condition curtailing such use was attached to the permission. ... ...  (The dock company) is operating the site in accordance with the planning permission.

... ...

"I have not been referred to any case which has directly considered the interplay between planning permission and the law of nuisance. Many cases, of course, have considered statutory authority as a defence to nuisance. There are the old railway cases and more recently Allen v. Gulf Oil Refining Ltd. [1981] AC 1001 and Tate & Lyle Food and Distribution Ltd. v. Greater London Council [1983] 2 AC 509. Lord Templeman in the Tate & Lyle case said, at p. 538:

"The defence of statutory authority to an action for nuisance was summarised in the speech of my noble and learned friend, Lord Wilberforce, in Allen v. Gulf Oil Refining Ltd. [1981] AC 1001, 1011 as follows: 'It is now well settled that where Parliament by express direction or by necessary implication has authorised the construction and use of an undertaking or works, that carries with it an authority to do what is authorised with immunity from any action based on nuisance. The right of action is taken away; . . . To this there is made the qualification, or condition, that the statutory powers are exercised without 'negligence' -that word here being used in a special sense so as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct of the operation with all reasonable regard and care for the interests of other persons; . . ."" (Page 359.)

72.      In the case before us, there is no question of the appellant's having acted under statutory authority in the sense in which the expression is used in the English cases. Typically, in such a case, an undertaker, for example a railway company, is authorised by Act of Parliament to acquire land, develop it, and carry on its undertaking over it. By application of the doctrine of the sovereignty of Parliament, an individual is deprived of the right of action to seek to prevent the operation of the undertaking.

73.      The final extract from Gillingham quoted by the appellant is in these terms:-

"The aim of any commercial undertaking is to operate to the best advantage or in other words to do as much trade as it can. It would be quite unrealistic to attempt to draw a line in the dock company's operation to limit the amount of trade it can permit at the port. It would be a task for which a court would be ill-equipped, involving as it would the need to consider the interests of the locality as a whole and the plaintiff's and county council's plans in respect of it ... ... These are matters to be decided by the planning authority and, if necessary, the minister and should be subject only to judicial review. I do not find the dock company has operated or operates the port other than as a normal commercial undertaking. The plaintiff can now impose conditions upon or even revoke the permission it has granted."

74.      Having regard to the terms of these passages, the appellant submits that the Royal Court erred in law "by not considering if the actions of (the appellant) were lawful, and not giving due consideration (to) the impact of the planning permission granted to (it) and the fact that (the) public interest was taken into account." (Appellant's written contentions, paragraph 50.)

75.      The submissions now made about the relevance of the planning permission under which the appellant operated were not made in the court below. No mention of planning permission was made in the appellant's skeleton argument. The issues which the court was invited to consider were these:-

"a) What is the level of work undertaken by the Defendant at Heatherbrae Farm

"b) What is the level of noise at Les Ormes created by that work and

"c) Whether that noise constitutes a breach of the common law duty of voisinage and/or in the alternative a breach of the tort of nuisance."

76.      In his brief opening address to the Royal Court, Advocate Clarke, who then represented the appellant, made no mention of planning permission. The closing written submissions for the appellant company began with a consideration of the applicable law. The Gillingham case was not referred to. It was submitted that there was "a range of issues" that had to be considered by the court, before reaching its decision. These issues, which are legal and factual, were set out as follows:-

"a) What noise levels are generated by the activities of the Defendant at Heatherbrae Farm?

"b) What impact do those noise levels have on the property Les Ormes?

"c) Do such activities constitute a breach of the Defendant's duty of Voisinage when considered within all the circumstances of the case?

d) If the Court finds for the Plaintiffs in respect of c) above, what are the appropriate remedies that should be applied by the Court?"

77.      In its written submissions to the Royal Court on the evidence, the appellant does not assert that the existence of planning permission for the commercial use of Heatherbrae Farm was of any relevance to the issues to be decided. On the contrary, in addressing the respondents' submission on the relevance of the Planning Department's involvement in the case, the appellant said this:-

"the manner in which a Court should decide on whether there has been a breach of the duties of Voisinage should not be influenced by the policies or previous actions of the Planning Department." (Paragraph 49.)

78.      The appellant's argument that the Royal Court ought to have had regard to "the impact of the planning permission" can be seen, therefore, as a volte face on the company's part. This new argument raises questions of fact as well as of law on which the Royal Court was not addressed and, consequently, we do not have the benefit of its views.

79.      This is a highly unsatisfactory state of affairs. We are mindful, however, that the appellant is not personally responsible for it. We have considered whether the respondents would suffer any prejudice if we were to address the argument, and we have concluded that they would not. In these circumstances we are prepared to deal with the point.

80.      In our opinion, on the planning permission issue, the Gillingham case is distinguishable on its facts from the matter before us. The argument advanced by the successful defendant in that case was to this effect:-

"If the planning authority in the proper exercise of its planning powers decides to grant planning consent for a use which will inevitably change the character or quantity of the traffic using the highway, and the resultant traffic is reasonable, judged by the needs of the use permitted by the planning authority, no individual can complain of such traffic, however great the disturbance may be." (Page 351)

81.      It is to be noticed that the argument proceeds on a factual hypothesis - if the use for which permission has been granted will inevitably change the character of the neighbourhood, there can be no complaint.

82.      Buckley J. picks up that point at page 359 of the report. After observing that he had not been referred to any case which had directly considered the interplay between planning permission (as opposed to statutory authority) and the law of nuisance, he continued as follows:

"If a planning authority grants permission for a particular construction or use in its area it is almost certain that some local inhabitants will be prejudiced in the quiet enjoyment of their properties. Can they defeat the scheme simply by bringing an action in nuisance? If not, why not? It has been said, no doubt correctly, that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance. However, a planning authority can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of rendering innocent activities which prior to the change would have been an actionable nuisance: Allen v. Gulf Oil Refining Ltd. [1980] Q.B. 156, 174, per Cumming-Bruce L.J., referred to in the speech of Lord Wilberforce [1981] AC 1001, 1013-1014." (Emphasis supplied.)

83.      At page 360, his Lordship continued:-

"... ... I note by way of analogy with the statutory authority cases that it is only a nuisance inevitably resulting from the authorised works on which immunity is conferred." (Emphasis supplied.)

84.      The appellant points to the permission granted in 2002 for the change of use of Heatherbrae Farm from redundant dairy building to dry storage, and submits that, "(i)n essence this grant of permission changed the use of Heatherbrae Farm from farming to that of commercial use, and in so doing also changed the character of the neighbourhood."

85.      We have no difficulty in rejecting that argument. The Royal Court has found as a fact that, after Heatherbrae Farm ceased to function as a working dairy, a number of agricultural buildings were let for storage purposes, the relevant consent having been obtained from the Planning and Environment Committee in 2002. (Judgment of the Royal Court, paragraph 2.) There is nothing in the grant of that permission which could properly be regarded as operating to alter the character of the neighbourhood or that could be said inevitably to result in a nuisance.

86.      Nor, in our judgment, can it be said that the character of the neighbourhood was altered by or that a nuisance would inevitably result from the permission that was granted in 2005. In respect of that matter, the Royal Court made the following findings in fact, which are not challenged:-

"... ... at the time when planning permission was given for the defendant company to move to Heatherbrae Farm it was considered a suitable site on the basis of the level of activity which had occurred at La Prairie, i.e. skip storage with some sorting from time to time. The actual effect of the defendant company's activities on the plaintiffs had not been anticipated; it appeared that the operations at Heatherbrae Farm were significantly more intense than those conducted at La Prairie. If they had been anticipated, it was likely that the application for planning permission would have been refused, or more precise conditions attached to the permit." (Judgment, paragraph 17.)

Decision on Ground 3

87.      In our opinion, the planning consents granted in 2002 and 2005 are significantly different in their nature and effect from the planning permission that was under consideration in Gillingham. It can not be said of either consent that it operated to alter the character of the neighbourhood, or that a nuisance would inevitably result therefrom. Consequently, we reject the third ground of appeal.

Ground 4 - "Erroneous consideration of expert evidence."

88.      At the trial, expert evidence was led on both sides. That evidence conflicted on a number of important matters and, in resolving these conflicts, the Royal Court preferred the evidence of the respondents' expert, Mr Gosling. The appellant criticises the Royal Court for giving reasons which, the company argues, do not sufficiently explain why it did so. (Written contentions, paragraph 53) The particular respect in which it is submitted that the Royal Court failed is set out as follows:

"The Learned Bailiff held that the Court preferred the evidence of the Plaintiffs' expert at paragraph 30 of his judgement, when no explanation of the inconsistencies was given, which makes this decision unsafe." (Written contentions, paragraph 54.)

89.      The appellant complains, also, that the reasons given by the Royal Court for preferring the evidence of Mr Gosling are "not consistent with the evidence which was given by the experts". (Written contentions, paragraph 53.) Having made that assertion, the company goes on to quote a number of passages of evidence and concludes with the submission that "in ignoring or not commenting upon" certain evidence given by the expert called by the appellant, the Royal Court  failed in its duty to explain its decision.

90.      The Royal Court's finding, at paragraph 30 of the Judgment, that the "technical evidence is consistent with the evidence of the Plaintiff" is also criticised as being a "misdirection". (Written contentions, paragraph 62.) The appellant submits that "there are clear inconsistencies between" Mrs Yates' notes of what was happening on 3rd and 4th October and the graph of decibel recordings made on these days.

91.      In the course of his oral submissions before us, Mr Lakeman argued that the Royal Court had erred in making findings in fact based on Mr Gosling's evidence because, said Mr Lakeman, Mr Gosling had taken no data recordings to establish background noise levels at Les Ormes, and relied instead on data recordings taken by Mr Binet, an Environmental Health Officer. Mr Binet was not a witness. Consequently, went the argument, the Royal Court ought not to have accepted Mr Gosling's evidence. 

Decision on Ground 4

92.      The last point has no substance. Mr Gosling did, in fact, take his own background data recordings, as was explained in his report, and in his oral evidence.

93.      In our opinion, it is quite wrong to say, as the appellant does, that the Royal Court gives no explanation of the inconsistencies between the evidence of the respondents' expert and that of appellant's expert. The Royal Court's consideration of the expert evidence begins at paragraph 18 of its Judgment. The Bailiff sets out the principal features of Mr Gosling's evidence at paragraphs 19 and 20, and does the same in respect of the appellant's expert, Mr Whiteman, at paragraphs 21 and 22. No criticism is made of the learned Bailiff's summary of that evidence.

94.      It emerges from these passages that there were material differences between the experts in the methodology each applied to the measurement and evaluation of noise levels.

95.      In preferring the evidence of Mr Gosling, the Royal Court explains that:-

(i)        Mr Gosling's calculations were based on the results of monitoring the noise from the respondents' garden, whereas those of Mr Whiteman were based, in part, on calculations drawn from measurements taken at Heatherbrae Farm.

(ii)       It seemed to the Royal Court that calculations based on measurements taken in the respondents' garden were likely to be more reliable than calculations which were, to a certain extent, predicted rather than measured.

(iii)      The Royal Court considered the different standards that had been relied on by the experts, and concluded that the standard that Mr Gosling had used was "the appropriate and relevant standard for the particular circumstances".

(iv)       More generally, the Royal Court found the evidence of Mr Gosling to be more fluent and persuasive than that of Mr Whiteman. An example which the Bailiff gives is that Mr Whitman's explanation of his failure to seek to place his recording equipment in the respondents' garden was not found to be particularly cogent.

96.      In our view, the reasons given for preferring the evidence of Mr Gosling are clear and informative. Of the expert evidence, the reader knows (a) what the issues were, (b) how the Royal Court resolved them, (c) why the Royal Court resolved them in the way it did, (d) what result followed and (e) why that result followed. (See Chartier v Jersey Post [2007] JLR 187, at paragraphs 33 and 34.)

97.      We reject, also, the appellant's submission that the reasons given by the Royal Court for preferring the evidence of Mr Gosling are "not consistent with the evidence which was given by the experts". The appellant seeks support for that assertion from a number of passages selected from the evidence. We have read the whole of the evidence given by the experts and we are satisfied that the Royal Court's reasons are consistent with evidence which they were entitled to accept.

98.      The appellant's submission that there are clear inconsistencies between Mrs Yates' notes of what was happening on 3rd and 4th October and the graph of decibel recordings made on these days is based on the annotated graphs which we have held to constitute fresh evidence and which we refused to admit, for the reasons given in paragraphs 20 to 25 of this Judgment. The Royal Court was not addressed on the point and there is, in any event, no evidential basis for it. Consequently, we reject it.

99.      As we have noted in paragraph 86 of this Judgment, the appellant characterises the Royal Court's preference for the evidence of the respondents' expert as "unsafe" and invites us to reverse a number of findings in fact on that basis. "Unsafe" is not a standard which we recognise in the context in which it is used in this case. When findings in fact are challenged, the proper approach to be taken by a court of appeal is set out in the speech of Lord Hope of Craighead in Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1, in the following passages:-

"The rule which defines the proper approach of an appellate court to a decision on fact by the court of first instance is so familiar that it would hardly be necessary to repeat it, were it not for the fact that it appears in this case to have been overlooked. In Clarke v Edinburgh and District Tramways Co, at 1919 SC (HL), p 37; 1919 1 SLT, p 248, Lord Shaw of Dunfermline said that the duty of the appellate court, not having the privileges, sometimes broad and sometimes subtle, of the judge who heard and tried the case, was to ask itself whether it was in a position to come to a clear conclusion that the judge who had these privileges was plainly wrong. The words "plainly wrong" were picked up and repeated by Lord Macmillan in Thomas v Thomas at 1947 SC (HL), pp 59-60; 1948 SLT, p 8 when he said:

"So far as the case stands on paper it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of profound importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone plainly wrong.

"... If the case on the printed evidence leaves the facts in balance, as it may be fairly said to do, then the rule enunciated in this House applies and brings the balance down on the side of the trial judge."

"As Lord Stott observed in his dissenting opinion in McLaren v Caldwell's Paper Mill Company Ltd, at 1973 SLT, p 168, a Lord Ordinary's view on the credibility or reliability of a witness is not sacrosanct. But the jurisdiction of the appellate court must be exercised within narrow limits where the only issue is whether it should take a different view from that which the trial judge formed on the facts. Viscount Simon said in Thomas v Thomas at p 48 (p 2) that Lord Greene MR had admirably stated the limitations to be observed in the course of his judgment in Yuill v Yuill. In that case, at [1945] P, p 19, Lord Greene MR said: "It can, of course, only be on the rarest of occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion." (See paragraphs [16] and [17].)

100.   A different approach may be justified where there is no issue of credibility or reliability, or where the finding in fact under challenge was a matter of inference. In MCC Proceeds Inc v. Bishopsgate Investment Trust plc & Ors [1999] CLC 417 the Court of Appeal of England and Wales expressed this view:-

"It is well established that the court is reluctant to reverse a finding of fact made by a trial judge after hearing and seeing the witnesses, though the court will do this if satisfied that the finding was wrong. The reluctance is particularly great where questions of credibility and reliability arise, or where for any other reason the trial judge who saw the witness was better able to make the finding than the Court of Appeal, which has only a transcript of the evidence, is able to do; also, where questions of primary fact are in issue, as distinct from inferences which the court may be as well placed to draw as the trial judge was. In relation to such questions, the court will consider whether there was evidence which entitled the judge to make the finding which he did, rather than making its own decision afresh. This is perhaps a relic of the approach which was called for when the facts were found by a jury rather than the judge, and which still applies when appeals are brought against jury verdicts."

101.   We have rejected the appellant's challenge to the Royal Court's findings in fact because, in our opinion, that challenge is not made out according to its own terms. Further, having regard to the approach which an appellate court should take to findings of primary fact where credibility or reliability is at issue, we consider it right to add that we take the view that, on the evidence before it, the Royal Court was entitled to make the disputed findings.

Determination of the appeal

102.   It follows from our decision on each of the appellant's grounds that we dismiss this appeal.

Stay

103.   We announced our decision at the conclusion of the hearing on 22nd May, whereupon Mr Lakeman moved for an extension of the stay of execution that was granted on 22nd October, for a further six months, i.e. until 21 November 2008. He explained that the options open to the appellant were to relocate the business or to sell it. The business had 350 skips and two large diesel tanks to clear from Heatherbrae Farm. There were five members of staff to deal with. All of these things would take time. Mr O'Connell pointed out that this action had been en train for a substantial period of time, and that the letter before action had gone out in October 2006. He submitted that a month's extension would be appropriate.

104.   In holding that the activities of the appellant company at Heatherbrae Farm constitute a breach of the duty of voisinage which is owed to the plaintiffs, the Royal Court expressed considerable sympathy for Mr and Mrs Pinel, on the view that they were permitted, if not encouraged, by the Planning Department, to establish their business at Heatherbrae Farm, and that they did so in good faith. We have no reason to believe that they pursued this appeal other than on advice and in good faith. We took the view that it would be equitable to extend the stay until 1st October 2008, and we so ordered.

Costs

105.   At the conclusion of the hearing we invited parties to lodge written submissions on the matter of costs.

106.   There is no dispute that the appellant should, at least, be found liable in costs on the standard basis. The respondents, however, have moved for costs against the appellant on an indemnity basis, in respect of (i) the substantive appeal, (ii) the application to adduce fresh evidence and (iii) the late withdrawal of the concession that the issues in this case fall to be determined in accordance with the law of voisinage and the consequent new ground of appeal. Parties are agreed that we have a discretionary power to award indemnity costs where it is appropriate to do so. (Court of Appeal (Civil) Rules 1964, Rule 18(1)) There must be some special or unusual feature of the case to justify the making of such an award. (See, generally, Dixon v Jefferson Seal Limited [1998] JLR 47.) Further, we are reminded by the respondents that the Civil Proceedings (Jersey) Law 1956 article 2(1) provides that the court has full power to determine by whom and to what extent costs are to be paid. (See, also Court of Appeal (Jersey) Law 1961, Article 12(1).)

107.   In support of their application in respect of the substantive appeal, the respondents point to the appellant's failure to meet certain deadlines set by the court for the lodging of documents. They contend, further, that the appeal was without merit, and they criticise the manner in which it was presented. On the fresh evidence point, the respondents describe the appellant's failure to comply with the prescribed procedure as "highly improper", and its characterisation of the annotated graphs as being the respondents' own evidence as "inaccurate and misleading".

108.   We are not persuaded that that we should award costs on an indemnity basis in respect of either the substantive appeal or the fresh evidence application. We do not regard the appeal, taken as a whole, as being without merit. We acknowledge the fact that the appellant failed to meet deadlines, but we are not satisfied that these failures were such as to justify the sanction of an award of costs on an indemnity basis. As the appellant points out in its submissions on costs, the timetable set by the court was tight, compared with that provided for in the Court of Appeal (Civil) Rules 1964. After hearing argument, we held that the annotated graphs constituted fresh evidence. We accept, however, that the appellant's representatives genuinely, albeit mistakenly, believed that the graphs simply brought together strands of evidence that were before the Royal Court.

109.   We take a different view on the new ground of appeal. Messrs Sinels were instructed in this case in February 2008. An amended notice of appeal was served on 1st April. The appellant's written contentions were served on the respondents on 18th April. The appeal hearing was set down for the week commencing 19th May 2008. On that day, Messrs Sinels requested that the hearing should not start before 21st May, because of Mr Pinel's ill-health. That request was granted. As we have noted in paragraph 18 of this Judgment, a further bundle of papers was delivered to members of the court, and emailed to Advocate O'Connell, between 8 and 9 pm on 20th May. That bundle comprised 29 pages of text and 13 Annexes, much of which was intended to support the new ground of appeal.

110.   We are conscious of the fact that Messrs Sinels were not involved in this case until some two months after the Royal Court delivered its Judgment, and that their contentions on behalf of the appellant were lodged within about two months after that. The new ground of appeal came, however, after a further full month. Rule 2(3) of the Court of Appeal (Civil) Rules 1964 provides that, except with the leave of the court, an appellant shall not be entitled on the hearing of an appeal to rely on grounds not specified in the notice of appeal. Rule 6 provides that a notice of appeal may be amended by or with the leave of the court at any time, or, without such leave, by supplementary notice served at least 14 days before the date fixed for the hearing of the appeal on each of the parties on whom the notice to be amended was served. In the latter event, a copy of the supplementary notice is to be furnished to the Judicial Greffier. The existence of these rules demonstrates an acknowledgement by the court that, during the appeal process, new grounds of appeal may emerge and that it may be in the interests of justice that they should be determined, notwithstanding that they are not contained within the notice of appeal as originally served. The rules themselves are clearly designed to avoid unfairness and delay in the proceedings in the event that an appellant wishes to advance a new ground.

111.   In this case, no supplementary notice was served and no notice was given either to the respondents or to the court that the appellant intended to seek to introduce a further ground of appeal until the eve of the hearing, when the new material was delivered. Even then, nothing was done to draw the recipients' attention to the new ground, or to intimate that leave would be sought to rely on it at the hearing. The email to which the respondents' bundle was attached was in these terms:-

"Please find attached Appellant's Response to the Respondent's Contentions on Adducing Evidence and other Matters together with authorities. A hard copy will be provided tomorrow at Court."

112.   In support of their submission that the appellant should be found liable in costs in respect of the late ground of appeal, the respondents argue as follows:-

"For the Appellant to file 29 pages of further contentions and submissions under the disguise of responding to the Respondents' submissions on the application to adduce fresh evidence was disingenuous. By any standards this was discourteous, both to the Court and to the Respondents, as well as procedurally irregular. It is submitted that such 'ambushes' in the pursuit of proceedings are to be strongly discouraged by the Court. As such, it is the Respondents' respectful submission that the Appellant be ordered to pay the Respondents' costs on an indemnity basis.

"It may be that the Court feels that the Appellant's conduct in this issue was due more to the actions of their advocates than to their own actions." 

113.   In reply to that argument, the appellant "accepts that there was a delay in the submission of the supplemental Skeleton Argument, however rejects the Respondents' submission that this was meant as a 'surprise attack' ground of appeal." (Appellant's written submissions on costs, paragraph 61.) The appellant's representatives go on say that the reason why the supplemental Skeleton Argument was produced "was to try to delimit the arguments raised, and to give the Respondents the opportunity to consider these arguments in full and not to surprise them only by raising during (sic) oral submissions". The appellant's representatives have given no explanation, however, for the delay in producing the new ground of appeal. In particular, we have not been told when it was conceived; why the procedural rules were not complied with; and why no notice was given to the respondents or the court that the new ground was in contemplation. As a result of the manner in which the new ground emerged, the start of the substantive appeal was delayed until 2.30 pm on the afternoon of the first day.

114.   Rules of Procedure should be complied with. If, by dint of circumstances compliance is not possible, the court should be given a full explanation of the circumstances. In this case, the appellant's representatives have elected to give us no explanation.

115.   As we have noted, Rule 18(1) empowers us to award costs on an indemnity basis where it appears appropriate in the circumstances to do so. In our judgment it is appropriate to do so in this case, in order to mark the court's disapproval of the way in which the appellant's representatives have conducted themselves in respect of the new ground of appeal, and to discourage parties from conducting themselves in a similar way in future cases.

116.   There is nothing in the material before us to suggest that the appellant company was in any way to blame for the failings of their Advocates.  In the whole circumstances, we order that Messrs Sinels be liable in costs to the respondents on an indemnity basis in respect of a one half day of the hearing and for the remainder of the appeal we find the appellant liable to the respondents in costs on the standard basis.

Authorities

Searley v Dawson [1971] JJ 1687.

Gale and Clarke v Rockhampton Apartments Limited and Antler Properties C. I. Limited [2007] JLR 27.

Mayo v Cantrade [1998] JLR 173.

Key (née Shaw) v Regal 1962 JJ 189.

Magyar and Magyar (née Autumn) v Jersey Strawberry Nurseries [1982] JJ 147.

Re Barker (1985-86) JLR 186, 191.

Gillingham v Medway (Chatham) Dock Co Ltd [1993] Q.B. 343.

Sturges v. Bridgman (1879) 11 ChD 852, 856.

Allen v. Gulf Oil Refining Ltd. [1981] AC 1001.

Tate & Lyle Food and Distribution Ltd. v. Greater London Council [1983] 2 AC 509.

Allen v. Gulf Oil Refining Ltd. [1980] Q.B. 156, 174.

Chartier v Jersey Post [2007] JLR 187.

Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1.

Clarke v Edinburgh and District Tramways Co, at 1919 SC (HL).

Thomas v Thomas at 1947 SC (HL).

McLaren v Caldwell's Paper Mill Company Ltd, at 1973 SLT.

MCC Proceeds Inc v. Bishopsgate Investment Trust plc & Ors [1999] CLC 417.

Dixon v Jefferson Seal Limited [1998] JLR 47.