| NUISANCE — Undertaking not to commit — Modification — Offensive smell from defendant’s farm causing public nuisance — Defendant giving undertaking to court not to cause nuisance — Whether appropriate for court in subsequent enforcement proceedings to modify undertaking
Mid Suffolk District Council v Clarke [2006] EWCA Civ 71
CA: (Buxton, Gage and Lloyd LJJ): 15 February 2006
It could never be an appropriate exercise of the jurisdiction of a first instance judge to change the wording of a previous order given on a final basis unless that were justified by circumstances such as a change of relevant facts. Where the judge considered that the order was inappropriate in the first place, the matter should be the subject of an appeal, not reconsidered at first instance.
The Court of Appeal so stated when allowing an appeal by the claimant, Mid Suffolk District Council, from the order of Sir John Blofeld, sitting as a Judge of the High Court in Norwich District Registry, who on 20 April 2005 modified an undertaking given by the defendant, John Edgar Clarke, on 19 April 1999 in earlier proceedings brought by the claimant, by releasing the defendant from aspects of the undertaking and imposing a limit on the period for which it was to remain in force.
LLOYD LJ said that neither the mere passage of time nor the existence and potential outcome of planning proceedings or the good track record of the defendant in respect of his undertaking, provided adequate justification for subjecting the undertaking to a time limit. It seemed that the judge paid inadequate regard to the fact the undertaking was given at the conclusion of proceedings which might very well otherwise have resulted in a permanent injunction. The judge seemed to have been influenced to some extent by the fact that the defendant was acting in person when he gave the undertaking. That was true but he was in a position to seek advice, at any rate before he gave the undertaking on a final basis, and that factor was not relevant for the court’s consideration. If it were appropriate to recast the language of an undertaking because its language was rather outdated, the right course would be to bring it up to date in all relevant respects to include words designed to cover the sort of point that was aimed at by the words objected to, for example, by putting in such words as “or in any other way”. It seemed that it could never be an appropriate exercise of the jurisdiction of a first instance judge to change the wording of a previous order given on a final basis unless that were justified by circumstances such as a change of relevant facts. The judge’s approach on this point suggested that he considered that the order was inappropriate from the outset. If that was the basis for his approach then it seemed that that was a proper subject of an appeal and not for reconsideration at first instance. The council and local inhabitants were entitled to proper protection against nuisance on an indefinite basis against the defendant in the light of the long past history to the matter and also in the light of some of the history since the undertaking was given.
GAGE LJ agreed.
BUXTON LJ gave a concurring judgment.
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