Piper & Anor v Clifford Kent Ltd.

In an intermittent private nuisance, the absence of the nuisance during an isolated inspection does not establish that it has ceased. The court must assess the evidence of recurrence over time and any material change in the defendant’s operations. Planning permission is relevant to the level of interference that may be tolerated, but it does not authorise an actionable nuisance. Where nuisance is established but the evidence is insufficient to determine the appropriate remedy, the appellate court may remit that issue for further investigation.

Mr and Mrs Piper appealed from a decision of Mr Recorder Derbyshire in the Truro County Court concerning alleged nuisance from a large egg-producing farm adjoining their home. The recorder awarded damages for past nuisance but found that the actionable smell nuisance had ceased in 2000. The claimants challenged only that finding. The respondent did not appeal the finding that an actionable smell nuisance had existed from 1995 to 2000.

The central issues were whether the evidence established a continuing intermittent smell nuisance and, if so, whether the Court of Appeal should determine the appropriate remedy or remit that question to the county court.

1. Appeal allowed. The Court of Appeal, in a judgment given by Jacob LJ and agreed by Clarke LJ and Auld LJ, quashed the finding that there was no continuing smell nuisance.
2. The evidence of the claimants and neighbouring witnesses, which the recorder had accepted as honest and reliable, described repeated smell incidents continuing after 2000. The nuisance was intermittent and depended on factors including wind direction, wind speed and the activity taking place on the farm. Evidence that the smell was absent during the expert’s four days of visits and during the recorder’s visit could not displace the wider evidence of recurrence.
3. There was no evidence of any significant change in the farm’s practices, machinery or equipment in 2000 capable of reducing the smell from an actionable nuisance to an acceptable interference. Since an actionable nuisance had already been found to exist for six years, further evidence was required to establish that the position had materially changed.
4. Planning permission for the battery farm was a relevant consideration when determining the level of smell that was tolerable. It did not prevent the smell from amounting to an actionable nuisance where the interference exceeded that level.
5. The appropriate remedy was not determined by the Court of Appeal. The evidence was insufficient to decide whether to grant an injunction, and if so in what form, or to award damages in lieu. The matter was remitted to the county court for further evidence and representations. Jacob LJ noted that the statutory power to award damages in lieu under section 50 of the Supreme Court Act 1981 required considerable care because its exercise might resemble compulsory purchase.
6. The respondent was ordered to pay the costs of the appeal. Costs before the recorder were remitted to the county court for resolution in the final determination.

1. Court of Appeal (Civil Division): Appeal from the Truro County Court allowed with costs. The finding that there was no continuing smell nuisance was quashed, and the question of remedy was remitted for determination.
2. Truro County Court: Mr Recorder Derbyshire awarded £10,000 damages for past nuisance but found that the actionable smell nuisance had ceased in 2000.