Mid Suffolk District Council v Clarke

A court may discharge or modify an undertaking given in place of a final injunction only where a significant change of circumstances justifies doing so. The interests of justice are a necessary condition, but are not alone sufficient. A judge of concurrent jurisdiction cannot alter the undertaking merely because its original terms appear excessive, imprecise or outdated; those objections belong in an appeal.

The passage of time or the outcome of planning proceedings does not justify discharge where the protected right remains distinct and there is no evidence that protection has become unnecessary. A statutory authorisation does not prospectively qualify a nuisance undertaking. The undertaker may rely on statutory authority in later enforcement proceedings by proving that the nuisance was the inevitable result of the authorised activity and that every reasonable precaution was taken.

A district council obtained an undertaking from a farm operator not to cause or permit a public nuisance by smell. It had brought the proceedings under section 222 of the Local Government Act 1972 to protect local inhabitants. Following admitted breaches, the Deputy High Court Judge fined the operator but later limited the undertaking to 1 April 2007 and deleted the words “or otherwise howsoever”. He considered that time had passed, planning proceedings would supersede the undertaking and the wording was imprecise.

The council appealed. By a Respondent’s Notice, the operator sought an additional qualification excluding conduct permitted by an authorisation under Part I of the Environmental Protection Act 1990. The central issues were the proper limits of the jurisdiction to modify a final undertaking and the relevance of planning control and environmental authorisation.

1. Appeal allowed unanimously; Respondent’s Notice dismissed. The undertaking was restored without a time limit and without deletion or qualification of its terms. Lloyd LJ gave the principal judgment. Gage and Buxton LJJ agreed.

2. An undertaking given in place of a final injunction is equivalent in effect to that injunction. Although the court retains jurisdiction to discharge or modify an undertaking, justice is a necessary rather than sufficient condition. Buxton LJ held that the jurisdiction should be confined to a significant change of circumstances. A judge of concurrent jurisdiction cannot revise a final undertaking merely because its original terms appear excessive or outdated. Such objections are matters for appeal.

3. The required change of circumstances was not established. The passage of five years was insufficient given the long history of nuisance, two justified committal applications and the continuing need to protect local residents. Planning control and public nuisance enforce distinct obligations. The resolution of the planning proceedings did not logically remove the need for protection against nuisance, and there was no evidence that the operator would be unable or unwilling to conduct any activity capable of causing smell.

4. The authorisation under Part I of the Environmental Protection Act 1990 did not justify qualifying the undertaking. Statutory authority provides a defence to nuisance only where the defendant proves that the nuisance was an inevitable consequence of the authorised activity and that every reasonable precaution consistent with the statutory power was taken. That fact-sensitive question could not properly be determined prospectively on the evidence before the judge. The operator could raise the defence in any future committal proceedings to show that no public nuisance, and therefore no breach, had occurred.

5. The words “or otherwise howsoever” legitimately extended the undertaking to direct and indirect conduct. Their style might have become dated, but that did not justify removing them. If recasting had been appropriate, equivalent modern language covering conduct in any other way would have been required.

• Court of Appeal (Civil Division): By [2006] EWCA Civ 71, unanimously allowed the council’s appeal and dismissed the Respondent’s Notice.
• High Court, Queen’s Bench Division: Sir John Blofeld, sitting as a Deputy High Court Judge, fined the respondent for three admitted breaches, subsequently limited the undertaking to 1 April 2007 and deleted the words “or otherwise howsoever”. Permission to appeal was refused.
• Original proceedings: The respondent gave the undertaking in a consent order made after the trial of the council’s public nuisance action.