R’S Skips Ltd v Yates and Yates (Née Van Neste)

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Steel, Jones and McNeill, JJ.A.
• Judgment Date: 19 May 2008
• Date: 19 May 2008

COURT OF APPEAL

Steel, Jones and McNeill, JJ.A.

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C.G.P. Lakeman for the appellant;

M.St.J. O'Connell for the respondents.

Cases cited:

(1) Barker, In re, 1985-86 JLR 186, referred to.

(2) Chartier v. Jersey Post, 2007 JLR 187, applied.

(3) Dixon v. Jefferson Seal Ltd., 1998 JLR 47, referred to.

(4) Gale v. Rockhampton Apartments Ltd., 2007 JLR 27; on appeal, 2007 JLR 332, applied.

(5) Gillingham B.C. v. Medway (Chatham) Dock Co. Ltd., [1993] Q.B. 343; [1992] 3 All E.R. 923; [1992] 1 PLR 113, distinguished.

(6) Key (ne Shaw) v. Regal, 1962 J.J. 189, considered.

(7) MCC Proceeds Inc. v. Bishopsgate Inv. Trust plc, [1999] C.L.C. 417, considered.

(8) Magyar v. Jersey Strawberry Nurseries Ltd., 1982 J.J. 147, considered.

(9) Mayo Associates S.A. v. Cantrade Private Bank Switzerland (C.I.) Ltd., 1998 JLR 173, applied.

(10) Searley v. Dawson, 1971 J.J. 1687, applied.

(11) Thomson v. Kvaerner Govan Ltd., 2004 S.C. (H.L.) 1; [2004] S.L.T. 24; [2004] P.I.Q.R. P7; [2003] UKHL 45, dicta of Lord Hope of Craighead applied.

Legislation construed:

Court of Appeal (Civil) Rules 1964 (Revised Edition, ch.07.245.10), r.12(1): The relevant terms of this sub-rule are set out at para. 24.

Text cited:

Nicolle, The Origin & Development of Jersey Law: An Outline Guide, para. 15.25 (2005 ed.).

Contractquasi-contractvoisinageduty in voisinage cannot be delegated or avoidedif landowner lets land to tenant for business and knows or ought to know harms neighbour's interests or expectations, both landowner and tenant in breach of duty

The respondents brought an action against the appellant company in the Royal Court in voisinage, seeking damages and an injunction preventing it from conducting its business at a neighbouring property.

The appellant's business involved the noisy mechanical sorting of rubbish. When the respondents had bought their home in 1999, the neighbouring property had been a dairy farm. Planning permission was granted in 2002 for a change of use of certain farm buildings from redundant dairy buildings to dry storage and, in 2005, further permission was granted for a change of use from dry storage to commercial. The appellant company moved to the farm as tenant in 2005 and shortly afterwards the respondents complained of excessive levels of noise.

During the trial, the appellant conceded that the doctrine of voisinage applied in the circumstances. Both parties adduced expert evidence and, in resolving conflicts between that evidence, the Royal Court (Bailhache, Bailiff and Jurats Tibbo and Morgan) preferred the evidence of the respondents' expert. The court held that the appellant's activities constituted a breach of its duty of voisinage and granted an injunction preventing it from operating its business at or in the immediate vicinity of the farm (in proceedings noted at 2007 JLR N [65]). Although the respondents did not bring proceedings against the owner of the farm, the court commented in its judgment that a landowner whose tenant conducted a business which the landowner knew, or ought to have known, was harmful to the interests or reasonable expectations of a neighbour, would also be in breach of the duty of voisinage.

The appellant appealed against the injunction and it was implicit in its grounds of appeal that it abided by the concession made in the Royal Court that, in principle, the creation of excessive noise could amount to a breach of the duty of voisinage. Late in the day before the appeal was due to commence, however, the appellant delivered a further bundle of documents to the respondents and the court in which it sought to withdraw its concession that the doctrine of voisinage applied in this case and to introduce a new ground of appeal to the effect that voisinage applied only to damage to land or buildings.

The appellant submitted inter alia that (a) the Royal Court erred in finding it liable in voisinage because only a landowner could owe duties in voisinage and those duties could not be delegated; (b) furthermore, it could not have breached its duty of voisinage, as its use of the land had been lawful under the planning permissions; and (c) the Royal Court's reasons for preferring the evidence of the respondents' expert were inadequate and certain of its findings of fact were unsafe.

Among the supporting documentation lodged with the appellant's written contentions for the appeal were copies of two graphsshowing decibel levels recorded in the respondents' garden, plotted against the time of daywhich had been exhibits before the Royal Court. The copies were not identical to the graphs that had been before the Royal Court, however, as the appellant's landlord had annotated them with material taken from the second respondent's notes of events that had occurred at certain times during the same days (which had also been before the Royal Court). The events noted by the second respondent occurred at times which fell between the fixed time markers on the graphs and, when annotating the graphs, the appellant's landlord had therefore determined for himself where along the time axis the events occurred. The respondents objected to this fresh evidence being adduced without leave. The appellant contended that the copies merely consolidated material that had been before the Royal Court but sought leave to adduce them to the extent necessary.

Held, dismissing the appeal:

(1) The appellant would not be granted leave to adduce the annotated graphs, which constituted fresh evidence, as they had not been presented to the court in an appropriate form. The graphs were more than simply a consolidation of evidence that had been before the Royal Court. The annotations involved calculations and/or an exercise of judgment the reliability of which was controversial. This court had full power under r.12(1) of the Court of Appeal (Civil) Rules 1964, in its discretion, to receive further evidence on questions of fact but it could only be received by oral examination in court, by affidavit, or by deposition taken before the Viscount or on commission. Even if the court could have received the fresh evidence, however, it would have refused to do so, as it could have been exhibited at the trial and there were no special reasons for allowing it to be admitted on appeal ( paras. 22-26).

(2) The appellant company could have owed a duty to the respondents under the quasi-contractual doctrine of voisinage even though it was merely a tenant at the farm, and the Royal Court had not erred by finding it liable under voisinage. The duty in voisinage was not owed solely by property owners. The duty was founded on the relationship between neighbours, not on the fact of ownership of property. Furthermore, the fact that a landowner's duty to his neighbour in voisinage was non-delegable did not preclude the existence of a separate quasi-contract between the person in possession of the property (e.g. a tenant such as the appellant) and the same neighbour. It did not follow from the fact that a landlord consented to his tenant's occupation of a property that he thereby consented to a breach by the tenant of the duty of voisinage. Even if a landlord did consent to actions by his tenant that would constitute a breach of the duty of voisinage, however, such consent could not preclude the existence of a quasi-contractual relationship between the tenant and his neighbour ( paras. 40-41; paras. 44-46; paras. 53-54).

(3) In finding the appellant to be in breach of its duty of voisinage, the Royal Court had not erred by failing to consider whether the planning permit made the appellant's use of the property lawful. An occupier of land was entitled to use the land in any way, provided that his use was lawful and did not unreasonably interfere with his neighbours. It could not be said, however, that if a use of land were lawful, in the sense that it was within the scope of a planning permit, it could not also be unlawful, in the sense that it breached the duty of voisinage. Nor did the planning permissions granted in 2002 and 2005 inevitably change the character of the neighbourhood or result in a nuisance, so that the respondents could not complain about the appellant's activities ( para. 67; para. 86).

(4) The Royal Court had properly explained its decision to prefer the evidence of the respondents' expert to that of the appellant's expert, as the court had stated (a) what the issues were; (b) how it had resolved them; (c) why it had resolved them in the way it did; (d) what result followed; and (e) why that result followed. Moreover, the Royal Court had been entitled to make the findings of fact disputed by the appellant and they would not be overturned. Findings of fact, particularly issues of credibility or reliability, would only be overturned on appeal if the Royal Court had been "plainly wrong," not on the ground that the findings were "unsafe." If there were no issue of credibility or reliability, or if a challenged finding were a matter of inference, the Court of Appeal might instead take the approach of considering whether there was evidence which entitled the Royal Court to make that finding, but it would not make its own decision afresh ( paras. 93-101).

(5) The appellant's advocates had failed to comply with the Court of Appeal (Civil) Rules 1964 by raising without the leave of the court a new ground of appeal the evening before the hearing was due to commence. They would therefore personally be ordered under r.18(1) to pay the respondents' costs in respect of half a day of the hearing on an indemnity basis, to mark the court's disapproval of the manner in which the new ground of appeal had been raised and to discourage other parties from similar conduct in future cases. Rules of procedure should be complied with and, if compliance were not possible, the court should be given a full explanation of the circumstances. The appellant's advocates had not given any explanation for their...