R's Skips v Yates

CourtCourt of Appeal
JudgeJones JA
Judgment Date19 May 2008
Neutral Citation[2008] JCA 77B
Date19 May 2008

[2008] JCA 77B



Dame Heather Steel, President;

M. S. Jones, Esq., Q.C.; and

J. W. McNeill, Esq., Q.C.

Marc Silvanus Dorey Yates
Michaela Yates nee Van Neste


Reg's Skips Limited

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

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


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 Ch.D. 852, 856 .

Allen v. Gulf Oil Refining Ltd. [1981] A.C. 1001 .

Tate & Lyle Food and Distribution Ltd. v. Greater London Council [1983] 2 A.C. 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] C.L.C. 417 .

Dixon v Jefferson Seal Limited [1998] JLR 47 .

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

Jones JA

This is the judgment of the Court.


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.


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.


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.


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.


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.


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.


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.


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.


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

The Parties' Submissions in the Royal Court

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 ofSearley 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."


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.


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 inGale 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.


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

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

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...

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