Ex gratia compensation payment: Mr. and Mrs. R. Pinel.

STATES OF JERSEY

EX GRATIA COMPENSATION PAYMENT: MR. AND MRS. R. PINEL

Lodged au Greffe on 4th March 2009 by Senator B.E. Shenton

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

(a ) to approve the making of an ex gratia payment of £297,469.59 to Mr. and Mrs. R. Pinel (Reg's

Skips Limited) as compensation for costs incurred in defending the voisinage action brought against them as set out in the Appendix;

(b  ) to request the Chief Minister, in consultation with the Minister for Treasury and Resources, to

make provision in the draft Annual Business Plan 2010 to meet the cost of the payment.

SENATOR B.E. SHENTON

REPORT

Most of us stood for election to represent the people – unfortunately many, when elected, represent only the Government.

It does not bring me any pleasure to bring this proposition but I feel that I have no choice. I was asked to assist a local family, running a local business, and this is the only actual solution that is available.

The problem lies in the fact that, in my opinion, both the Government and the Judiciary have failed them – indeed they are the cause of the problem. Neither has offered a solution and so I find myself lodging this proposition. There is no political agenda behind it – just one of fairness, accountability, and the quest for higher standards.

In researching this case the legal profession have, in my opinion, acted in a manner that would not be deemed acceptable behaviour in any other walk of life. They have displayed a bullying thuggishness of an East-End villain, and I ask the Law Society to review this matter as I shall be interested in their appraisal. If they believe that the actions demonstrated in this proposition are of an acceptable standard I shall be very surprised.

Reg's Skips Limited

Reg's Skips Limited is a Skip business owned and operated by Mr. & Mrs. Pinel (Reg and Rita). They have built the business from scratch, operate 5  lorries (one lorry is a spare), and employ 4  drivers (all locally qualified) Their children, Corina and Aaron, live in Jersey. Unfortunately their youngest, Martin, needed a heart transplant aged 5 and died aged 11 from cancer. Corina has been ill since her early years and is registered disabled by Social Security. She is dependent on family support. Aaron works in Jersey.

Background

Heatherbrae Farm, St.  John, was a diary farm established by Mr.  Christopher Taylor in 1980/81. Due to economi conditions and, some would argue, mismanagement, the dairy industry was forced into a restructuring; and in 2002 the Island's herd was reduced by over 1,000  cows. During this period it is Mr.  Taylo'rs contention that the Agricultural Department did not consult with the Planning Department concerning the ramifications of this policy. Mr.   Taylor took the option to leave the agricultural industry and turn the farm into dry storage.

In 2005 Mr. Taylor was visited by Miss E, a Planning Officer, together with Mr. Pinel of Re'gs Skips. Miss E explained that Reg's Skips occupied a site in St. Peter that was beside the main road and was unsightly. Indeed I remember the site well – it was near the roundabout at the top of Beaumont Hill. Reg's Skips were legally operating from the site and there appeared no way that they could be forced to move.

Mr. Taylor and Miss E walked the site and Miss E asked Mr. Taylor if he would be willing to take Re'sg Skips as a tenant as it was an ideal site. Mr. Taylor was requested to make an application for a change of use from"Dry Storage" to "Commercial".

Mr. Taylor was instructed by Planning to make a"Personnel Application" not indicating that the change was for the benefit of Reg's Skips – an unusual request but one that Mr. Taylor complied with. The apparent reason for this request would become clearer at a later stage.

In May/June 2006 Heatherbrae Farm was visited by an Environmental Health Officer, Mr. F. Mr. F explained tha the Planning Department was obliged to seek the consent of the Environmental Health Department prior to granting permission for "Change of Use" to "Commercial Use" as this could involve noise, dust, and other nuisances. It would appear that the Planning Department deliberately attempted to bypass the Environmental Health obligations in their desire to move Reg's Skips from a site that they were legally operating from near the airport. Mr. F stated that he was unaware that Reg's Skips were behind the application.

Mr. Taylor has produced a statement stating that the Planning Application in 2005 was a"Personal" application and that all correspondence to him was headed "Change of Use (Reg's Skips Limited)". It is difficult to understand why Planning deliberately failed to disclose that Reg's Skips were behind the application when

consulting with the Environmental Health Department.

As a result of Mr.  and Mrs.  Pine'ls kindly nature and their wish to work with Government they ended up occupying a site that may not be satisfactory. Mr.   Taylor believes that the Planning Department acted with malice by withholding vital information from Environmental Health despite their requests to know the identity of the tenant.

At this point in the proposition I would like to draw Members' attention to a family connection between the neighbours (?) of Reg's Skips and the Bailiff .

The XXXXXX

The XXXXXX is a 4  piece band consisting of –

Member A Son of Mr. and Mrs.  A

Member B Son of Sir Philip and Lady   Bailhache (The Bailiff ) Member C

Member D

The BBC Website dated 31st August 2006 wrote –

Making The XXXXXX by Andy de Castro

With such a wealth of musical talent in the Island, one of my favourite bands to catch live is The XXXXXX. I met up with them recently, and found out what makes The XXXXXX tick.

The XXXXXX was initially formed by Member C and Member  B in the late 90s, playing mainly classica rock covers ranging from Dire Straits to Queen. Having known each other since birth, Member  B and Member  C work remarkably well together and produce some of the group's best work.

The  XXXXXX  emerged  officially  in  September  2004  with  Member  B,  Member  C,  Member  A  an Member  D at its element.'

The BBC Website dated 21st November 2006 wrote –

Jersey band could be Next Big Thing by Claire Peters

The XXXXXX, a young Jersey band, has made the shortlist of BBC World Service's Next Big Thing Competition'. A local band has made the semi-final of the BBC World Service's search for The World's Best Young Band'.

The XXXXXX, a group of Jersey based musicians, have beaten over 1,000  other acts to make it into the top  20 of the competition.'

Error of Judgement

You will have noted the dates above and the fact that Member  B has played in the same band as Member  A sinc 2004. I understand that they practised at various family houses/barns during this time.

ROYAL COURT (Samedi Division)

17th November 2006

Before: Sir Philip Bailhache , Bailiff sitting alone Between (1) Mr.  A Applicants

(2) Mrs.  A

And Minister for Planning and the Environment Respondent

Advocate M. St. J. O'Connell for the Applicants S.C.  Nicolle  Q.C.  Solicitor  General,  for  the Respondent

In the case of Mr. and Mrs.  A versus the Minister for Planning and Environment I question whether it was in order for the Bailiff to hear the case – due to the close family connection – and to recommend to Mr. and Mrs.  A that rather than sue the Minister for Planning and Environment that they would be better off taking action against a third party – namely Mr. and Mrs.  Pinel, who own Reg's Skips. Until this point Mr. and Mrs.  Pinel had been outside any legal actions.

If I were a judge, and my daughter played in a band for a number of years with the son of one set of parents standing before me, I would have deemed myself to be severely conflicted. I believe the majority would do the same.

The Court document clearly states –

Royal Court

17th November 2006

Before: Sir Philip Bailhache – Bailiff sitting alone.

"In all the circumstances of this case it seems to me that the appropriate remedy for the applicants to pursue is a private action in voisinage."

Here the Bailiff is advising Mr. and Mrs.  A that they would be better off suing Reg's Skips rather than the Minister for Planning and Environment, and advising him of the law under which an action should be taken. Furthermore the Bailiff makes no order for costs against Mr. and Mrs.  A, even though the case was lost and the Respondent would have incurred legal costs. Indeed the taxpayer ultimately bore the costs of defending the action by Mr. and Mrs.  A.

In accordance with advice received from the Bailiff Mr. and Mrs.  A sued Reg's Skips Limited under the ancient and subjective law of voisinage. The judge was, once again, the "conflicted" Sir Philip Bailhache . It is surprising that no-one appears to have raised any objection to this.

Not only was the Bailiff conflicted in my opinion due to family connections, he was also conflicted because he had knowledge of information presented in the previous case.

[2007]JRC237 royal court (Samedi Division)

11th December 2007

Before: Sir Philip Bailhache Kt., Bailiff , and Jurats Tibbo and Morgan.

Between Mr.  A

And Mrs.  A Plaintiffs And Reg's Skips Limited Defendant

Advocate M. St. J. O'Connell for the Plaintiffs. Advocate A. J. Clarke for the Defendant.

JUDGMENT THE BAILIFF:

1. T h e plaintiffs (to whomwe refer individuallyas "Mr. A" and "Mrs. A") purchased a large granite 18th century property called "Les Ormes" (to whichweshall refer as "the property") in 1995. Theyundertookworks to renovate andimprove the property, taking considerablecare to retain the traditional features and characteristics of a houseof that period. They moved into occupation in 1999, and both plaintiffs devoted much time and effort to the creation of a substantial and attractive garden. Atthe time when the plaintiffs moved into occupation, the neighbouringproperty to the southwas a working dairy farm called "Heatherbrae Farm".
2. U  n til about 2002 Heatherbrae Farm continued to be used for agricultural purposes.Atabout that time, however, the dairy herd was sold and it ceasedtobe used as a farm. A numberof agricultural buildingswere let for storage purposes, the Planning and Environment Committee of the dayhavingconsented to the relevant change or changesof use. The beneficial ownerofHeatherbraeFarm,Mr. Christopher Taylor ,at some stagecame to seeMr. A to explain that oneof the tenants was to be a scaffolding firm, but that all noisy activities would take place inside one ofthe buildings.
3. In July  2005  the  defendant company, which is  owned by  Mr. and  Mrs. Pinel,  became a  tenant a HeatherbraeFarm.Mr. and Mrs.  Pinel had started their businessin 2000 and incorporatedthedefendantcompany in 2001. Itbegan trading at premises in St. Peter,butin 2004 itmoved temporarily to occupyother land knownas La Prairie inthe Route deBeaumont, before relocating toHeatherbrae Farm. Thedefendantcompany'sbusiness involves the sorting of mixed loads (i.e. skips filled with materialwhichcannotbedumpedtogetherorwhich requires recycling). The sorted materialsare thereafter transported to appropriatedumps or recycling sites. In addition it stores a numberofskips at the site when they are not out with customers.Theuseof the siteat HeatherbraeFarmby the defendantcompanywas sanctioned by the Planning Department but we shall deal with that in moredetailbelow.
4. D  u ring the winter of2005 –2006 the plaintiffs started to becomeawareof increased noisecoming from HeatherbraeFarm.At first they thought it related to the activities ofthescaffoldingcompanywhose tenancy had in factcome to an end atabout the time whenthedefendantcompany took up occupation. Mrs. A mentionedher concerns to herhusbandon several occasionsduring this period, butfor a numberofreasonshe did nothingabout it. Itwas only in the spring of 2006 that,underpressure from Mrs. A,Mr. A made enquiries and ascertained that skip business was nowbeingoperatedatHeatherbrae Farm. InApril 2006, Mr. A went to HeatherbraeFarmand noted what he described as "incredible" noise coming from a mechanicaldiggerwhichwasbeingused to sort rubbish. Mr. A made enquiriesof the Planning Department and ascertained that anapplication for changeofuse had been advertised at a time when the plaintiffs were awayon holiday. An official from thePublicHealth Department visited the property at the request of Mr. A and told the plaintiffs that he was unaware of the permission  granted  to  the  defendant company to  operate at Heatherbrae Farm. On inspecting  the  Planning Department's files, Mr. A noted that the othercommercial tenants atHeatherbrae Farm were subject to conditions in termsofnoise pollution, but that no such conditions attached tothepermit relating to the defendantcompany's operations.
5. M  r .  A complained to thePlanningDepartmentwhich visited Heatherbrae Farm inMay 2006. Enforcement officers directed that the mechanical sorting by digger shouldceaseuntil the appropriate amendment of the planning permit had been sanctioned by the Minister. In June 2006 the plaintiffs conducted an exercise of counting thenumberof vehicles arriving atand leaving HeatherbraeFarm. The average daily vehicle movements amounted to 300, of whichabout40were lorries belonging to or associated with the defendantcompany.

6. In September 2006 the plaintiffs were becoming frustrated at the perceived failure of the Planning Department to remedythe situation. On 12th October 2006 the plaintiffs' legal advisers sent a letter before action to the defendantcompany setting out the plaintiffs' complaints and asking that the companyshould desist from using the mechanicaldiggerandwithin a periodofthreemonths desist from sorting refuse on the site.They invited proposals astohow the business could beconductedwithoutadversely affecting theplaintiffs'enjoyment of the property. The Minister hadinthemeantime allowed limited mechanical sorting to take placebetween 10 a.m. and 12.30 p.m.,and had deferred for 3 months a decisiononwhetherto grant the defendant compan'ys application toamend its permitwhileacousticadvice wassoughtbythe defendant company.That decision prompted the plaintiffs toseekto institute proceedings against the Minister byway of judicial review, but leave was refused. In January 2007 the Minister refused the application of the defendant company to expand its activities and caused a notice to beservedonthedefendantcompany requiring it to cease the useof a mechanical digger andtocease intensification of the usewhichhad been permitted. Thedefendantcompanyappealed,and after taking legal advice the Minister withdrew the notice. The defendant company resumed the use of its mechanical digger.
7. O n 23rd April2007 the plaintiffs began proceedings byOrderof Justice against the defendantcompany alleging a breach of its duty in voisinage and seeking damages and an injunction preventing the defendant company from operating its skip businessatHeatherbrae Farm or within one mileof the property.Thedefendant companyhas denied any such breach.

The law

8. T h e duty of an owner or occupierof land in voisinage was first laid down in a judgment ofLe Masurier, Bailiff inSearley v Dawson[1971]JJ1687.TheCourt held that there existed a mutual duty in quasi –contract which obliged eachneighbour not to use his property in such a way as to causedamageto the other. Asexpressed in the second appendix ofPoitier's Traité du Contrat du Sociétévolume 5 page 245 paragraph 235–:

"Le voisinage oblige les voisins à user chacun de son héritage, de manière qu'il ne nuise pas à son voisin".

The principles of voisinage were considered exhaustively in judgments both of this Court and of the Court of Appeal in Gale and another v Rockhampton Apartments Limited and another [2007] JLR 27 and [2007] JCA 117B respectively, and we shall not repeat them here. Both counsel agreed that they were the principles to be applied in this case.

9. I t i s a question, therefore, whether the arrival ofthe skip businessconductedby the defendantcompany has given rise, by reason of the nature of that business, to a breach of the quasi-contractual duty in voisinage. We shall deliberately not use the word "nuisance"; not because itis not a convenientshorthandto characterise the conduct whichbreaches the duty in voisinage, but because it is aptto mislead in beingconfused with the English technical concept of that name. We shall instead examinetheevidence against thebackgroundofthe duty notto use one'sproperty in such a wayastocause harm toone'sneighbour.
10. T h ere is, as counsel for the plaintiffs has submitted, an evidential threshold to overcome, so as to demonstrate a breach of the duty and to justify the grantof a remedyfor that breach.We live inanincreasingly crowded Island, and standards of tolerance of noise and disturbance must move with the times. Before the invention of the internalcombustionengine farming was a relatively quiet industry. Apart from the occasional lowing of cattle and grunting ofpigs, little would have disturbed the peaceofthecountryside.Nowadaysfarming involves tractors, threshers, potato harvesting machines and manyotherformsofmechanicalequipmentwhich cause noise anddisturbanceto a greater or lesser extent. Neighboursmustin general putup with that.The principle in relation toodoursis similar. Thespreadingofmanureon agricultural land, for example, can cause temporary offensive smells which, in general,must be tolerated. Sometimes, however, the barrier issurmounted and a breach of the duty not to cause harm toone'sneighbour will be held to have arisen. OneexamplewasCurry v Horman(1889)213 EX 511where the deposit of refuse on land 70 feetawaycausedanoverpoweringstench t permeate the plaintiff's house.AnotherexamplewasMercer v Bower[1973]JJ 2453 wherethe Court held that the operation of a piggery in close proximity to residential properties could not be undertaken without adversely

affecting to a substantial degree (harming) the interests of those neighbours.

11. In the context ofnoise a breachof duty wasfound in Magyar v Jersey Strawberry Nurseries Limited [1982] JJ 147where the glass blowing activity in a craft centre was held to crossthethresholdof reasonableness.

The evidence

12. W e turn therefore toconsider the evidenceas to the operationofthedefendantcompany'sbusiness.We observe first of all that the plaintiffs were, as itwere,firston the scene. This is not a caseofconstructing residential property in the vicinity ofan industrial enterprise. Itis a caseof the establishmentof a commercial operation in a quiet rural area.
13. T h e evidenceof the plaintiffs was that the noise was intolerable. Mr. A stated that the noiseofthe engine of the mechanical digger, the clankingof caterpillar tracks, mechanical arm and bucket of the digger, as well as the impact noise ofthe rubbish being lifted, sorted and dropped was considerable. Wheneverskips were emptied or put into or out of storage a loud boomingnoisewas made. Mr. A alsocomplainedof significant numbersof lorries arriving atand leaving Heatherbrae Farm with skips or rubbish. On 3rd October 2007 he stated that there were 29 such movements and on 4th October 2007, 31 such movements, which related to the defendant company'sbusiness.
14. M r s. A stated that shehadbecomeawareof the noisecoming from Heatherbrae Farm during thewinterof 2005/2006 and hadaskedher husband to do somethingabout it. In February2006 they had erected a fenceon the boundary to try to mitigate the noise.As time went on she had found that the noise seriously affected her enjoyment of herhome.Shecouldno longer take an interestin the garden and rarely ventured into itbecause it was so distressing. Thenoise invaded herhomeandherthoughts. Periods of quiet were interrupted by loud bangs and crashes throughout the day. Theswimming pool hadbeen used only twiceduringthesummerof 2007. She said that the noise of the defendantcompany'soperationwas violent and brutal. Onoccasionswhen she had been ill inbed during the day,she had been awokenby the sudden crashing noises. Incross examination shesaid that she was a tolerant person and that in general she would putup with things rather than make a fuss.Shedenied that she had exaggerated the problem.
15. E v idencewasalsogiven by Mrs. Victoria Yates, the sister-in-law of Mr. A and Mrs. A,who often visited the property, andMrs. Dorothy VanNeste, the motherofMrs. A whoalsospenttimeat the property. In general they corroborated the evidenceof the plaintiffs although incross examination they were both uncertainabout the times when they had first noticed the noise.
16. T h e plaintiffs called Mr. David Watkins, a private detective, whoarrangedfor a video camera to film the frequency ofmovementsofthe lorries. In cross examination heconceded that hehad not remained onthesite very long.Hewas challenged about his evidence that someskipshad been seensuspended on their cradles as the lorries were driven in toand from Heatherbrae Farm. Mrs. Pinel, a director of the defendantcompany,gave contrary evidence.
17. T h e plaintiffs were permitted to call evidence from Mr. Peter Le Gresley, an Assistant Director of Planning. Mr. LeGresley stated that atthe time when planning permissionwasgiven for the defendantcompany to movetoHeatherbrae Farm itwasconsidered a suitable siteon the basisof the levelofactivitywhichhad occurred atLaPrairie, i.e. skip storage with some sorting from time to time. The actual effect of the defendant company's activities on the plaintiffs had notbeen anticipated; it appeared that the operations atHeatherbrae Farm were significantly more intense than those conducted atLa Prairie. If they had been anticipated, it was likely that the application for planning permission would have been refused, or more precise conditions attached to the permit.
18. B o th parties called expert evidence.The plaintiffs called Mr. Steven Goslingwhoholdsan honours degree in engineering acoustics from the Institute of Sound and Vibration Research at the University of Southampton. He has been a memberof that Institute for 12 years and is Directorof24 Acoustics, a consultancy firm specialising in the assessmentof acoustics, noise and vibration. Thedefendantcompany called Mr. Robert Whiteman whois a chartered civil engineer with a Diploma in Acoustics.Heis the Principal AcousticConsultant

with Southdowns Environmental Consultants Limited. We find that both men are eminently qualified to give expert evidence. Regrettably there was no joint report, nor any assessment of the points of difference between them.

19. M  r.  Gosling had visited the property in February and October 2007 and made noise measurements between 1st and 8th February and between 3rd and 4th October. The instrument was installed in the garden of the property at a height of 1.5  metres. The purpose was to achieve objective background noise data, (i.e.  from th adjacent road, bird song, tree rustling etc) and to assess the impact of skip movements and sorting. Mr.  Gosling found that the background noise level in October was between 35 to 40  decibels. This was consistent with the measurements taken in February which had yielded a background of noise level of 35.5  dB. Mr.  Gosling found that the rating level of noise from skip movements using BS  4142 was 54.8  dB. Having deducted the background noise level, the difference was 19.3  dB. Similar calculations on the operating noise from the yard yielded a BS4142 rating of 55.7  db and a difference of 20.2  dB.

20. M  r.  Gosling stated that the threshold for actionable nuisance in the UK according to BS  4142 wa

+ 10  dB and that the noise levels at the plaintiff's property resulting from the operations of which complaint is made were significantly in excess of that level. He added that skip operations were always noisy and that he had been involved in advising in relation to the siting of such an operation in Southampton. In that case the site had been 250  metres away from residential property and situated in a bowl which caused additional attenuation. There had been no complaints. By comparison, the defendant company's site was 50  metres away from the boundary and 110  metres away from the plaintiffs' house.

21. M r .  Whiteman agreed on the basis of Mr.  Gosling's data that the background noise level in the garden of the property was between 35 to 40  dB. He assessed it at 38  dB. Thereafter, however, there was more disagreemen than agreement between the two experts. Mr. Whiteman took measurements from 3  sites within Heatherbrae Farm during September 2007, although the data from one of those sites was regarded as unreliable. He took no measurements in the garden or elsewhere at the plaintiffs' property. He agreed that as a matter of principle it would have been preferable to get data from the position at which complaint was made, but he had not thought it appropriate to approach the plaintiffs to seek their permission. He had therefore estimated the effect on the basis of his measurements at Heatherbrae Farm. He disagreed with Mr.  Gosling that BS  4142 was the appropriat guide. He stated that local authorities would use it to assess the likelihood of complaints, but that exceeding the limits laid down in BS  4142 did not necessarily imply a nuisance. BS  4142 was just one method of assessment He quoted a Noise Advisory Council Report which stated of BS 4142:–

"there can be no absolute quantitative standard by which to determine whether a given noise was a nuisance; and BS 4142 does not purport to provide such a standard".

22. M r. Whiteman referred toWHOGuidesfor community noisewhich indicated that noise levels below 50 dB were generally acceptable. Basing his opinion from the data from one of his monitoring sites within HeatherbraeFarm,(whichwasmuch closer to the source ofnoise than the plaintiffs' property) whichshowed that noise levels within a five minuteperiod rarely exceeded55dB,heconcluded that not even moderate annoyance would becaused at the property.Hereferred to BS 8223 whichgives similar guidanceonexternalnoise levels for gardens and balcony areas. Healso referred toPPG24which states that noise levels below 55dB need not be considered as a determining factor in granting planning permission for a new dwelling whereambientnoise levels are madeupofmixed sources. Heconceded,however, that this was not strictly applicable tothe situation in dispute.
23. M r . Gosling's response to theseargumentswas that BS4142was unquestionably the appropriate standard in this case.He stated that it wasdisingenuousto suggest that all proposed housing sites that experience a day time noise level ofless than 55dB were "generally acceptable".Heasserted that guidance from both the WHO and BS 8233 applied to anonymous sources of noise, such as traffic, and nottospecific industrial noise of a variable nature.
24. P rior to trial the parties agreed, under directions from the Bailiff , that a demonstrationofnoise levels on the site would be conductedunderthesupervisionof the two experts on 18th October 2007, the first dayof the hearing. Four skips would be taken to and from Heatherbrae Farm, two fully loaded andtwoempty. They would

be stacked and then the loaded skips would be sorted by the mechanical digger assisted by hand-sorting if necessary. Acoustic measurements from the garden of the property would be taken. The Court duly attended on the site and the demonstration took place over more than an hour. From the perspective of the plaintiffs the demonstration was hardly a success. Mrs.  A said that she was embarrassed and that if the noise had always been at the level experienced on that day, she would not have troubled the  Court or anyone else. The experts, unusually, did agree that during the demonstration the noise level associated with the mechanical digger was 40.2dB. Applying the BS  4142 method (and Mr.  Gosling's data) the resulting rating was 0.8dB which was of less than marginal significance. Mr.  Gosling's evidence was that he was told by a driver of a lorry that he was going to drive very slowly. Mr.  Gosling had registered his concern during the demonstration that much of the material was soft and was being placed in the skips with great care. There was a substantial amount of earth in the loaded skips which would have cushioned the noise. Blocks of concrete being dropped more hastily into an empty skip would have created a very different impact. Additionally, he thought that the manoeuvres of the drivers of the skip lorries were unusually careful. The drivers would reverse and advance after inspecting their position so as to ensure that the skip was placed precisely on top of the one below. In his experience, skips were more usually dropped with less care. Even Mr.  Whiteman had reservations about the effectiveness of the demonstration.

25. M r s.  Pinelalsogaveevidencefor the defendantcompanyofwhichshe and her husband are the beneficial owners. Herhusbandhasexperienced health problems in recent years, and she is fully engaged in the business, not only withbook-keeping,paymentofwagesand collating ofcustomers' orders, butalso in distributing work to the drivers. The defendantcompany'sbusiness involved the delivery and collection ofskips, the dumping of the contents, sometimes after sorting,andthe delivery of building materials such as sand,chippings and granite dust to customers. It was the sorting of mixed loadswhichwasthepredominant activity at HeatherbraeFarm,towhich they had moved in July 2005. Thedefendantcompany owned a smallmechanicaldiggerbut had access to a larger machine if the load wastooheavy.Theyhadstarted with one skip lorry and about fifty skips or bins. Now they had five skip lorries andaboutthree hundred and fifty bins,and a Ford transit pickup truck. She agreed that the companynow had a lotmorecustomersandwasgoing from strengthtostrength.She asserted that she did not think that the activities ofhercompany were affecting the plaintiffs undulyand causing any kind ofnuisance.She had neverbeento the property, and hadnever been invited to doso.

Conclusions on the evidence

26. In broadtermswe accept theevidenceof the plaintiffs. We were particularly impressedbytheevidence of Mrs. A,whospendsmoretimeattheproperty than anyoneelse. It wasclear that she wasnot a person given to complaining. Wethink that the slowness of the plaintiffs to react to the arrival of the defendantcompanyat Heatherbrae Farm wasdue principally toher nature and only secondarily to the fact that Mr. A wasdilatoryin responding to hiswife'sconcerns.We accept that Mrs. A nolonger finds her gardentobe a pleasure and that her enjoymentof the property has been adversely affected to a material degree. We also accept that theevidenceof Mrs.  VictoriaYates and ofMrs. VanNestewasgivenhonestly and fairly, even if it added little to the evidence o the plaintiffs. We derived little assistance from the evidenceofMr. Watkins.
27. W  e also accept that theevidenceofMrs. Pinelwasgiven honestly. She could not, ofcourse,comment upon the effect of the defendantcompany's activities upon the plaintiffs becauseshe had never been at the property andexperienced the noiselevels from that situation.
28. A s to the evidenceof the experts,wemust state first of all that it ishighly regrettable that no consultation took place between them in relation to their reports. It is true that Mr. Whiteman was only instructed at a relatively latestage in early September 2007, but he or the defendantcompanymust bear some responsibility for this state ofaffairs.ThereportofMr. Gosling had been in the handsof the defendantcompany for manymonths, but no consultation with Mr. Gosling took placebeforeMr. Whiteman filed his report on26thSeptember.
29. B e all that asitmay,weprefer the evidenceofMr. Goslingwhereit conflicts with that ofMr. Whiteman for thefollowingreasons.

1. M r . Gosling's calculationswerebased upon monitoring of the noise from thegardenof the plaintiffs' property whereas those of Mr. Whiteman were based in part upon calculations drawn from noise measurements takenatHeatherbraeFarm. It seems to us that calculations drawn from measurements

taken at the locus in quo are inherently more reliable than calculations which were to a certain extent predicted

rather than measured.

2. It seems to us,upon an analysisofthe different guidesor standards whichhavebeen placed beforeus, that BS 4142 is the appropriateandrelevant standard for the particular circumstances of this case. We are not persuaded that BS 8233,PPG 24or the WHOguides for community noise are helpful in the contex of this case.
3. T a kenin the round,wefound the evidenceofMr. Gosling to bemore fluent and persuasive than that of Mr. Whiteman.We did not find, for example,Mr. Whiteman's explanationof his failure to seek to place his equipmentin the gardenof the plaintiffs' property to be particularly cogent.

30. W  e accept the evidenceofMr. Gosling that the difference between the backgroundnoiseand the noise caused by the defendantcompany's activities wasof the orderof18-20dB. That technical evidenceis consistent with theevidenceofthe plaintiffs, andin particular Mrs.  A,whichwe have already stated that we accept.
31. W e find it significant that the plaintiffs did not notice the noisegeneratedby the operation of Heatherbrae Farm for agricultural purposes. Even whenthe user of the farm changed to various users associated with a small industrial estate,nocomplaints were forthcoming from the plaintiffs. It is the case that a certainamountofnoise is generated by the other tenants atHeatherbraeFarm. It is clear, however, that it was only when the defendant company transferred its activities to Heatherbrae Farm that the level ofnoiseanddisturbancebreached the barrier, or surmounted the evidential threshold to whichwe referred in paragraph 10above.

Decision

32. It f ollowsthat, in our judgement,the activities of the defendantcompanyatHeatherbrae Farm constitute a breach of the duty of voisinage which is owed to the plaintiffs. We reached this conclusion not without considerable sympathy for Mr. and Mrs. Pinel. They were permitted, if not encouraged, by the Planning Department, to establish theirbusiness at Heatherbrae Farm which they did ingood faith. The difficulty is that any skip operating businessis inherently noisy.
33. W e note, en passant, that the dutyin voisinageis a duty whichcannot be delegated oravoidedby an owner. See the remarks of Le Masurier, Bailiff , inSearley v Dawson[1973]JJ 1687at1702. If, therefore, a landowner lets his land to a tenant who conducts a businesswhich the landownerknows,or ought to have known, is harmfulto the interests or reasonable expectations of a neighbour,he too will be in breachof the duty of voisinage. In this case, the plaintiffs have chosen to pursue their action against the tenant rather than the landowner. We obviously makeno findings inso far as the landowner is concerned.The plaintiffs seekan injunction preventing the defendantcompany from conducting its skip business at HeatherbraeFarm, although in the Orderof Justice the prayer is expressedin rather widerterms.
34. C o unsel for the defendantcompanydid not, and wethink realistically, suggestanywayinwhich the effects of the operations of the skip businessmightbe mitigated or avoided in the event that we were to find a breach of the duty of voisinage. We think that a reasonable opportunity must be afforded to the defendant company to find another location for its operations. Furthermore, the months in question are mainly winter months when only limited useof the garden would bemade by the plaintiffs. Weaccordinglygrantan injunction preventing the defendantcompany from operating its skip business at or in the immediatevicinityofHeatherbrae Farm, such injunction to come into force on 1st May2008.
35. B y wayof postscript, we direct that any applicationforthecosts of theseproceedingsshould be pursued only after a directions hearing before the Bailiff atwhich consideration can be given to the questionwhetherany other party or parties should beconvened.

Authorities

Searley v Dawson [1971] JJ 1687. Traité du Contrat du Société.

Gale and Clarke v Rockhampton Apartments Limited and Antler [2007] JLR 27 Gale and Clarke v Rockhampton Apartments Limited and Antler [2007] JCA 117B. Curry v Horman (1889) 213 EX 511.

Mercer v Bower [1973] JJ 2453.

Magyar v Jersey Strawberry Nurseries Limited [1982] JJ 147.

Noise Advisory Council Report.

In the above judgment of 11th December, 2007 the Bailiff states –

"In broad terms we accept the evidence of the plaintiffs. We were particularly impressed by the evidence of Mrs.  A, who spends more time at the property than anyone else.It was clear that she was not a person given to complaining."

It is difficult to ascertain how such a sweeping statement – she is not a person given to complaining – could be made without knowing that person quite well. Never before had voisinage been used to sue a tenant, never before had voisinage been used to address a complaint of noise solely. However with subjective laws this does not seem to matter.

It should be noted that Mr. and Mrs.  A's lawyer has requested that I confirm that "Mrs.  A has not socialised with the Bailiff ". I am happy to include this statement for clarification as requested.

Paragraph  35 is interesting as it, once again, demonstrates a failing by the Bailiff –

"35. B y way of postscript, we direct that any application for the costs of these proceedings should be pursued only after a directions hearing before the Bailiff at which consideration can be given to the question whether any other party or parties should be convened."

What this means, in layman's terms, is the Bailiff is effectively showing some sympathy for the predicament that Reg's Skips find themselves in and is requesting the Planning and Environment Department to contribute to costs as their negligence' caused the problem.

The request for costs was vigorously defended by Planning on the basis that they were not a party involved in the case, after all it was Mr. and Mrs.  A-v- Reg's Skips.

At the time of the case there was some consternation amongst the legal community as it could have set a precedent that would have numerous implications. Members of the public, for example, could have been asked to pay costs in respect of cases that they were not directly involved with. Lawyers could not believe that the Bailiff could have made such a direction without full consideration of the potential consequences.

My opinion is that the action for Planning to contribute costs was lost on the basis that a dangerous precedent would be set rather than on the merits of the individual case.

Voisinage

The law of voisinage – like the ancient Les Pas laws that cost the Island millions of pounds – have no place in modern society and I would argue have no relevance to modern justice. When one looks at Fournel's 19th Century Traité du Voisinage 3rd  Ed (1812) we see that voisinage is stated to be a vague, generic term that regulates the proper relationship (rapprochement) between things, places and people. It is, I believe, far too vague and subjective to be a true instrument of justice.

The law itself, as applied, is seriously flawed. For example if it were accepted that the right of relief from excessive noise was owed to neighbouring property owners under the law of voisinage, only the adjacent property owner would be able to bring a claim, whereas, the owner of a property down the road, also seeking relief from the same noise, would not be able to do so, as voisinage applies only to neighbours whose properties are touching. An efficient method to get around this obsolete and ancient law would be to sell a strip of land between your own

property and a disputing neighbour – thus negating any voisinage judgments.

Furthermore, the Court of Appeal confirmed that where a landlord lets his land to a tenant who conducts business which the landowner knows, or ought to have known, is harmful to the interests or reasonable expectations of a neighbour, not only the tenant who has caused the noise, but also the landlord will be in breach of his duty of voisinage and a claim may be made against him for damages. So the public will have to employ a lawyer to determine what ought to have been known and then rely on the subjective view of the Courts as there is no clear direction under the law.

Now bear in mind that voisinage is a local peculiarity with no place in Norman or English law. The Court of Appeal was heard by experts in English law – Dame Heather Steel, M.S.  Jones  QC, and J.W.  McNeill QC. No had a specific background in the Jersey law of voisinage.

As a direct result of the above case, which was unsuccessfully appealed, Mr. and Mrs.  Pinel have received legal bills in excess of £280,000 which includes over £125,000 costs claimed by Mr.  and Mrs.  A's lawyer. Bear in mind that no costs were claimed from Mr. and Mrs.  A when they lost their initial action against the Minister for Planning and Environment.

In the case bought by Mr. and Mrs.  A versus Planning the action was thrown out and lost by Mr. and Mrs.  A and the Bailiff awarded no costs against Mr. and Mrs.  A in favour of Planning. However, when Mr. and Mrs.  A successfully sued Reg's Skips they were awarded costs, and bills in excess of £125,000 were received by Mr. and Mrs.  Pinel.

It appears difficult to justify the discrepancy whereby when Mr. and Mrs.  A lost their case against the Planning Department no costs were awarded to Planning. These are actually costs ultimately due to the taxpayer. If this has been common policy the loss to the taxpayer could amount to millions of pounds.

As previously stated, Reg's Skips moved to the St.  Johns site (Heatherbrae Farm) from a site legally occupied near the airport at the specific request of Planning who located and identified the site for them. It would appear that Planning failed to obtain the correct approval from Environmental Health. This information may have deemed the site unsuitable – thereby saving Mr. and Mrs.  Pinel over a quarter of a million pounds.

Another twist was the fact that the Bailiff took the unusual step of requesting Planning and Environment to contribute to the costs in a case that they were neither plaintiff or defendant there appears to have been an admission of responsibility placed on this States Department, and a belief are to blame for the predicament that Mr. and Mrs.  Pinel find themselves in.

In the judgement of the case the Bailiff states –

"We reached this conclusion not without considerable sympathy for Mr. and Mrs.  Pinel. They were permitted, if not encouraged, by the Planning Department, to establish their business at Heatherbrae Farm which they did in good faith."

Can  the  Minister  for  Planning  and  Environment  honestly  state  that  his  Department  has  absolutely  no responsibility for the predicament that Mr. and Mrs.  Pinel now find themselves in?

Bullying and unprofessional actions

In addition to the failure of the Planning Department detailed above, and my considered opinion that the Bailiff was conflicted when overseeing any case involving Mr. and Mrs.  A, I would like to close by asking the Law Commission to examine correspondence that I have received on the subject which was, in my opinion, bullying, thuggish, and extremely unprofessional.

In  an  attempt  to  clarify  the  facts  in  order  that  this  proposition  would  contain  no  inaccuracies,  I  received correspondence written in a highly aggressive tone. This included statements such as –

"If you make your anticipated proposition to the States you may feel that you are protected by some form of parliamentary privilege in relation to statements that you make on the floor of the house."

"Having published your original letter in the terms that you did it is our view that you are not protected by any such privilege and you have exposed yourself and will continue to do so to the risk of proceedings if you continue to make statements which are defamatory to our clients."

and a warning that I may be subject to action if Mr. and Mrs.  A are –

"exposed unacceptably to unfair and unreasonable public scrutiny by means of reference directly or indirectly to them in your planned proposition or otherwise".