Merthyr Tydfil Car Auction Ltd v Thomas

In private nuisance, whether interference is actionable is an objective question of degree assessed in all relevant circumstances, including the character of the locality, duration and level of interference. Planning permission cannot authorise a nuisance, although implemented permission may alter the character of the locality. Evidence admitted by agreement forms part of the evidence and should not receive less weight merely because the witness was not cross-examined. An appellate court should not interfere with a trial judge’s assessment where the correct legal tests were applied and the conclusion was open on the evidence.

The respondents owned a home near land used by the appellant for vehicle auctions. They alleged that activities in a lower yard caused excessive noise and harmful fumes. Proceedings issued in 2010, including a claim for an injunction, but the alleged nuisance had substantially abated after the appellant modified its practices. Wyn Williams J found a noise nuisance during the six years before proceedings, rejected the claim concerning fumes, and awarded £9,000 damages. The appellant challenged the treatment of eight witness statements admitted by agreement, the assessment of locality and reasonable user, and the evaluation of the respondents’ evidence.

1. Appeal dismissed. The judge below had made an error of law in treating the absence of cross-examination as a reason to attach little weight to eight witness statements. However, that error was immaterial to the result.
2. Evidence admitted by agreement. A witness statement admitted by agreement is evidence of the truth of its contents. The court should not discount it merely because the witness was not called. That approach differs from a case involving a notice under the Civil Evidence Act, where the absence of cross-examination may justify reduced weight. The eight statements could not have affected the outcome because the witnesses lived materially farther from the lower yard and their evidence added little to the assessment of the locality.
3. Private nuisance. Whether an activity constitutes nuisance is a question of degree, determined by reference to all relevant circumstances. The character of the locality is highly relevant, as explained in Sturges v Bridgman (1879) 11 Ch. D 852. Duration and the actual level of interference are also material. The judge correctly recognised that the area was mainly residential but included business uses and busy roads, and that residents could not expect a noise-free environment.
4. Planning permission and reasonable user. The judge correctly directed himself by reference to Barr v Biffa Waste Services Limited [2012] 3 All E R 380 and Lawrence v Fen Tigers Limited [2012] 3 All E R 169. Planning permission cannot authorise a nuisance, but its implementation may change the character of a locality. The permission did not change the locality here. The judge was entitled to find that the actual interference nevertheless constituted nuisance, particularly since the appellant later operated under the permission without the same intrusion.
5. Witness evaluation and appellate review. A witness may be truthful without being accurate, as recognised in Burnett v Lynch [2012] EWCA Civ 347. The judge used credibility in assessing the reliability of the respondents’ records, considered the evidence as a whole, and applied an objective standard. His conclusions were open to him. The partial rejection of the claim concerning reversing bleepers and fumes reinforced that he had not treated the respondents’ complaints as conclusive evidence of nuisance.

1. Court of Appeal (Civil Division) dismissed the appeal against the order of Wyn Williams J. dated 8 October 2012: [2013] EWCA Civ 815.
2. Cardiff District Registry awarded the respondents £9,000 damages for noise nuisance, while rejecting the claim concerning fumes.