Injunction – order sought by the plaintiff granting access to land
to carry out recommended investigatory works.
[2016]JRC004
Royal Court
(Samedi)
7 January 2016
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Before :
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J. A. Clyde-Smith, Esq., Commissioner and
Jurats Liston and Blampied
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Between
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Mary Casteen Venturini
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Plaintiff
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And
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Ghyll Limited
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Defendant
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Advocate JC. Hall for the Plaintiff.
judgment
the commissioner:
1.
The
plaintiff owns a wooden hut known as “The Boat Hut” on Rozel Pier,
which is threatened by a potential landslip on the steep bank behind it which
belongs to the defendant.
2.
The Boat
Hut is one of a number of adjacent huts which face the same threat, namely:-
(i)
The Yellow
Hut, which belongs to Mr and Mrs Vasse.
(ii) The site of the former Blue Hut, which belongs
to Mrs Daniels.
(iii) The Ecobichon Hut, which belongs to Mr and Mrs
Ecobichon.
3.
The owners
of these adjacent huts/site attended the hearing in support of the plaintiff,
but have not sought to be joined in as parties.
4.
Approximately
half way up the steep bank belonging to the defendant is a man-made shelf on
which previously sat another hut known as the Green Hut. At the top of the steep bank, the
defendant’s land adjoins a property known as Roches Douvres.
5.
Whilst
admitting owning a piece of land acquired from Mrs Valerie Sarre on 17th
May, 2002, the defendant in its answer did not admit that the land it acquired
is situated above the Boat Hut or that any land directly behind the Boat Hut is
part of property owned by the defendant. We have received an affidavit dated 25th
November, 2015, from Michael David Philip Falle, an experienced conveyancer
employed by Viberts, who confirms that the defendant does indeed own the steep
bank adjoining the Boat Hut and the other huts and we so find.
6.
In or
around 2006, it appears that the defendant obtained planning permission to
develop the Green Hut, but it was a condition of that permission that it first
stabilize the steep bank.
7.
The
plaintiff believes that development of the Green Hut commenced in or around May
2012, but for reasons unknown to her, it was stopped. No works to stabilize the steep bank
have been carried out.
8.
There was
a small landslip in 2011, which damaged the Boat Hut. The plaintiff wrote to Mr Kevin Leech,
the sole director (it would seem) of the defendant and thought to be its
beneficial owner, on 15th February, 2011, expressing concern at the
instability of the bank and asking for remedial action. On 28th October, 2012, Mrs
Daniels, the owner of the Blue Hut, wrote to Mr Leech in these terms:-
“I have written to you
several times and have telephoned and left messages on your answer phone many
times recently, regarding the perilous state of the bank at Rozel, behind my
blue chalet. My concern is still
the same, though my anxiety at the state of the bank at Rozel is increasing
daily.
This summer, my family have
felt unable to spend a night in the chalet because of fears that the bank might
collapse at any time. I have been
at Rozel today and have spent some time clearing debris and encroaching
branches and weeds from my balcony.
The falling earth is building up behind my chalet and balcony wall and
the slippage is increasing. The wet
earth is putting increasing pressure on the little wooden chalet and I am so
worried that it will soon break the wood and the concrete blocks.
Please, Please Mr Leech, I
shall be so very grateful if you could organize a clear up of the area as a
matter of great urgency.”
9.
In
December, 2012 a landslip lifted the Blue Hut bodily into the middle of the
public road comprising the pier. We
were shown photographic evidence of this.
The Blue Hut was subsequently demolished. That incident also caused some damage to
the Boat Hut, estimated by the plaintiff at £1,000.
10. Jersey Harbours procured a report from Arup,
Engineers, dated 10th January, 2014. That report concluded as follows:-
“Conclusions and
Recommendations
A localised slope failure
occurred in December 2012 in the slope immediately behind the Blue Hut. It is considered that the failure was
triggered following a period of intense rainfall causing local surface water
run-off to be channelled into this area of the slope causing the saturation of
the near surface superficial deposits and vegetation and their failure. The hut was in all likelihood not
structurally connected to its foundation and unable to resist the lateral
pressure from the failure debris causing it to slide laterally across the
access road.
The instability is considered
to be localised and not part of a wider, deeper, area of instability. The type and nature of failure mechanism
is a common in steep coastal slopes and similar failures can be seen in
adjacent areas. No evidence of
positive drainage of surface water flows from the upslope areas into the
failure area could be seen during the site inspection.
With time further localised
failures or near surface deposits and vegetation may occur in other parts of
the slope. It will therefore be
important for the weaker surface materials and vegetation to be protected from
on-going erosion from surface water flows.
In addition the weathered
jointed rock mass exposed in the lower parts of the failed slope and adjacent
areas is breaking down along existing fracture joints and failing towards the
huts and access road.”
11. The report made the following recommendations:-
“It is recommended that
the land ownership of the slope be determined and the following remedial
measures agreed:
1. Remove the failure debris
at the base of the slope.
2. Locally trim and re-grade
the exposed failure surface and vegetation using a mechanical excavator from
the access road.
3. Protect the exposed
failure surface on the slope from surface water run-off using proprietary
erosion control netting pinned to the surface of the slope (in a similar way to
other adjacent sections of the slope) and tie into adjacent sections of the
slope.
4. The Rozel conglomerate
bedrock in the lower section of the slope is being weathered and breaking away
along fracture joints forming small slabs of rock which may pose a risk to
occupiers of the adjacent huts, in particular the Yellow Hut and in addition
failed rock slabs may fall onto the access road. These rock slabs should be carefully
trimmed back and removed to a safe sub-vertical angles using hand tools.”
12. We did not receive any evidence as to how
Jersey Harbours responded to the receipt of the report, but it is clear that
none of the recommendations have been carried out.
13. The plaintiff commissioned her own report from
Geo-Design, Consultants in Rock and Tunnel Engineering, dated 5th March,
2015, together with further written advice from Dr John Sharp of the associated
firm of Geo-Engineering. Dr Sharp
had inspected the bank the day before the hearing and gave evidence before
us. We would summarise the advice
given to the plaintiff, which we accept, as follows:-
(i)
The presumed
geology of the bank is as illustrated in Figure 4 (which we have attached to
this judgment), although it is not clear, without investigation, how much is
soil and how much is rock. Figure 4
refers to “Loess” which is windblown silt, and which comprises the
majority of the steep bank. Dr
Sharp explained that Loess loses strength when it becomes wet.
(ii) There is a history of instability in these
slopes, which include a large failure of the slope behind the White House,
which is situated to the south of the huts, which impacted and passed through
some of the building. Remediation
involved the use of medium capacity double twist rock netting with erosion
control mesh with some form of soil nailing. In the late 2000s, a moderate sized
failure took place adjacent to Dolphin Cottage (situated next to the Yellow
Hut) involving several cubic metres of loess which flowed along and blocked the
pathway. In December 2012 there was
the above mentioned failure behind the Blue Hut.
(iii) In addition to these failures, there is
evidence of ongoing movement in the slope.
(iv) The type of landslip that is likely to occur in
the future is shown in Fig. 5 (which is attached to this judgment), the most
serious being “C”, namely a deep circular failure involving the
entire slope height below Roches Douvres.
(v) Quoting from the report of 5th March,
2015:-
“From this study it is
concluded that whilst the slopes remain in the existing, un-engineered,
condition ongoing movement is inevitable, and there is a significant risk that
this will eventually result in further failure of at least part of the
slope. Until such time as the
stability state has been established and necessary measures put in place the
owners should consider carefully the need to occupy the properties. Whilst failure is more likely during
wetter periods, there is no guarantee that this will be the case. Monitoring displacements in the slope
could be considered, but this is unlikely to assist with predicting failure.
Slips of the scale that
occurred at the Blue Hut site are thus likely, although it is noted that this
part of the slope may have been most vulnerable on account of the low level of
rock at this location. What remains
less certain is whether a larger more deep seated failure, of the kind that
occurred behind the White House is likely.”
(vi) Quoting from Dr Sharp’s report of 30th
July, 2015:-
“In my opinion and based
on the conditions as described …, the land behind Mrs Venturini’s
hut is considered potentially unstable, notably following periods of heavy
prolonged rainfall.
On the balance of
probabilities, given the adverse precedent at the site in terms of past
failures (including behind the former adjacent property), it is considered that
the land to the rear and above the huts currently has limited (inadequate)
safety reserve and could undergo failure under the type of adverse climatic
(rainfall) conditions that can occur in Jersey. Because the situation cannot be
reliably monitored, the risk of sudden collapse is severe and is considered
unacceptable in terms of normal residential safety standards.”
14. In evidence before us, Dr Sharp confirmed that
there was evidence of stress within the bank which could be seen in places to
be moving. The potential for
failure was very possible either this winter or next. Bearing in mind the residential use of
the huts below, the level of safety was inadequate.
15. In Dr Sharp’s view, the remedial works
recommended by Arup were superficial and insufficient. In essence, they had attributed the
problem to soil erosion but in his opinion, which we accept, it was more
serious than that and the more comprehensive work that had been undertaken to
stabilize the bank behind the adjacent White House was likely to be the most
appropriate solution.
16. Dr Sharp was asked whether the landslips that
had occurred and which were likely to occur in the future could be attributed
to natural or man-made causes. In
his view, there were elements of both.
In terms of man-made causes, at some stage the platform on which the
Green Hut stood had been carved out of the bank, thus potentially increasing
the steepness of the bank both above and below it.
17. Before any detailed works could be designed and
specified, it was necessary to carry out a topographical survey and
geo-technical investigation. The
topographical survey would provide details of the geometry of the slope in
plan, elevation and cross section.
The geo-technical investigation will provide more detail on the
geological profile that makes up the slope and will provide a measure of the
strength of the soil profile, including the level of the top of the rock. This work will involve drilling
approximately six holes, some of which we note from the report would appear to
be situated in the lower slopes of Roches Douvres, the owners of which would have
to grant access.
18. In so far as these proceedings are concerned,
the first issue for the plaintiff is to get access to the steep bank owned by
the defendant in order to have this investigatory work carried out.
19. The defendant did not appear at the hearing. Mr Leech had appointed a Mr Stewart
Halstead of the Partsworld Group, to represent him in negotiations with the
plaintiff and her advisers. From
what we can gather the Partsworld Group is based in Chesterfield and provides
parts and accessories for motor vehicles.
Mr Halstead is not, however, an officer of the defendant. He put forward an offer on the part of
the defendant to build a retaining wall, by reference to two websites, the
first, “Retainpro” which provides retaining wall designs and the
second, “Allanblock”, which manufactures a number of retaining wall
products. However, as Dr Sharp
pointed out, reference to these two websites hardly takes the plaintiff any
further, as it is an actual design that is required, calculated to stabilize the
steep bank. A retaining wall could
only sensibly be carried out by removing the Boat Hut, constructing an
integrated slab, wall and footing, and then rebuilding the hut.
20. Advocate David Steenson had acted for the
defendant for a brief period and on 10th November, 2015, and out of
courtesy, he passed on a message to the Court from Mr Leech, who apparently
does not live in the Island and who was anxious that court time should not be
wasted, to point out that the defendant had endeavoured to resolve the matter,
either by putting up a retaining wall or by offering to sell the land to the
plaintiff and the other hut owners for a nominal sum. Although the defendant had been meeting
its debts as they fell due, it had no assets and would be unable to satisfy any
judgment obtained against it. He
would not be defending the case and hoped that this would avoid the need for
expensive legal argument.
21. What we would deduce from this is that the only
asset of the defendant is the steep bank, which includes the site of the former
Green Hut, and that any development of that site is not financially viable
because of the cost of stabilizing the bank; hence, the offer to transfer the
land for a nominal sum. Advocate
Hall informed us that the hut owners had felt unable to take ownership of the
land as they could not obtain public liability insurance for it. Her client had not ruled out acquiring
the land but needed access to carry out the investigatory work, so that she
could assess whether it was financially viable to do so.
Injunction
22. At this stage the plaintiff seeks an order
granting her access to the steep bank in order to carry out the recommended
investigatory works. Geomarine
Limited had submitted an estimate for this work in the sum of £3,900. An injunction is not a cause of action in
itself but rather a remedy to be granted in support of and ancillary to a
substantive cause of action (see Abbott Industries Incorporated v Warner
& Ors [1985-6] JLR 375). It
is the plaintiff’s case that the defendant is in breach of its duties
owed to the plaintiff as its neighbour pursuant to the law of voisinage.
Voisinage
23. Advocate Hall had not prepared a skeleton
argument to provide the Court with an analysis of the law of voisinage, but she provided the Court
with a copy of the most helpful report by the Jersey Law Commission on voisinage of October 2011 (Consultation
Paper No. 2/2011/TR), and an extract from the equally helpful Institute of Law
Immovable Property Study Guide on voisinage. She also referred the Court to Mitchell
v Dido Investments Limited [1987/88] JLR 293.
24. The law of voisinage
is now firmly established as part of the law of Jersey - see the decision of
the Court of Appeal in Rockhampton Apartments Limited & Anor v Gale and
Clarke [2007] JLR 332. It was
defined in Searley v Dawson [1971] JJ 1687 as a mutual duty that the
customary law of Jersey imposes on neighbours quasi ex-contractu not to use their properties in such a way as to
cause damage to each other. As the
Court of Appeal held in Reg’s Skips Limited v Yates [2008] JLR
191, the duty of voisinage is an
obligation incumbent on neighbours owed whether as owner or occupier.
25. The Law Commission observed that voisinage is evolving as a concept and
the extent of its application is unclear.
It is clear, however, that it extends to physical damage. Quoting from the judgment of McNeill JA
in Rockhampton v Gale at paragraph 154:-
“Therefore, whilst some of
the rights and obligations set out by Pothier may now be covered by other areas
of Jersey law, where there are contiguous properties and where there is
substantial damage to land or buildings, these should be covered by
voisinage.”
26. In the case before us, there has been actual
damage to the Boat Hut caused by the landslip in 2012 and there is a serious threat
of future substantial damage as a consequence of the instability of the steep
bank.
27. In its answer, the defendant denied that the
law of voisinage had any applicability in respect of anything falling naturally
from higher ground to lower ground, relying upon the law relating to éboulements.
28. In Mesney v Marett [1931] 236 Ex 337,
ground and other debris fell from the upper lying property owned by the
defendants on to the lower lying property owned by the plaintiffs. The defendants pleaded that the landslide
had been an Act of God or an inevitable accident, that they had used their
property in a normal and lawful manner and that the damage caused by the
landslide had not been caused by their fault or negligence. Moreover, it was a principle of law that
the fonds inférieur was bound
to receive the éboulements of
every kind which fell from the fonds
supérieur without human intervention. The Court decided:-
“…
l’éboulement du 5 mars 1931 ne paraît pas avoir
été provoqué par aucun acte, omission ou négligence
de la part des défendeurs lesquels n’ont usé de leur
propriété « Beauvoir » que d’une manière
normale et légale ; mais paraît plutôt être dû
à des causes naturelles … »
[The fall of the 5th March 1931
does not appear to have been brought about by any act, omission or negligence
on the part of the defendants who only used their property Beauvoir in a normal
and lawful manner ; but appeared rather to be due to natural causes.]
29. Mesney v Marett
was considered by the Royal Court in Mitchell v Dido, in which it was
alleged that the owner of the upper lying land had placed a quantity of soil
that had encroached on to the lower lying land belonging to the plaintiff,
causing drainage problems against the wall of the plaintiff’s house. The action was pleaded in nuisance,
rather than voisinage, and the Court
followed the English law of nuisance, as enunciated in Goldman v Hargrave
[1967] 1 A.C. 645 and Leakey v National Trust [1980] QB 485 and as
summarised in this extract from Halsbury’s Laws of England 4th edition
at paragraph 365:-
“365 …. An occupier of
land is liable for a nuisance, even though he has not created it, if he has
continued it while he is in occupation.
Further, the occupier will be liable for a nuisance created after he
became the occupier if he had knowledge, actual or constructive, of its
existence. An occupier of land
continues a nuisance if, with knowledge (actual or constructive) of its
existence, he fails to take reasonable steps to bring it to an
end….”
30. It was argued by the defendant that on the
authority of Mesney v Marett, the last sentence of this citation from Halsbury’s,
based on the English cases of Goldman v Hargrave and Leakey v
National Trust, did not form part of the law of Jersey. Tomes, Deputy Bailiff, said this at page
306: -
“It is not difficult to
distinguish Goldman v Hargrave from Mesny v Marett and the court
has no doubt that in a proper case the court would apply Goldman v Hargrave. It was a case where an occupier, faced
with a hazard accidentally arising on his land, failed to act with reasonable
prudence so as to remove the hazard.
Their Lordships found the existence of a general duty on occupiers in
relation to hazards occurring on their land, whether natural or man-made. The existence of the duty must be based
on knowledge of the hazard, ability to foresee the consequences of not checking
or removing it and the ability to abate it. We respectfully agree. Leakey v National Trust &c.
was concerned specifically with landslide.
For many years there had from time to time been slides of soil, rocks,
tree-roots and other debris caused by the effect of natural weathering. Later, a large crack had opened up in
the bank and it was pointed out to the defendants that there was a grave danger
of a major collapse on to the house below.
Some weeks later there was a large fall of the bank on to the land of
the plaintiff. The defendants were
found to be liable in nuisance and their appeal was dismissed.
The Court of Appeal held that under
English law there was both in principle and on authority a general duty imposed
on occupiers in relation to hazards occurring on their land, whether the
hazards were natural or man-made. A
person on whose land a hazard naturally occurred, whether in the soil itself or
in something on or growing on the land, and which encroached or threatened to
encroach onto another’s land thereby causing or threatening to cause
damage, was under a duty, if he knew or ought to have known of the risk of
encroachment, to do what was reasonable in all the circumstances to prevent or
minimise the risk of the known or foreseeable damage or injury to the other
person or his property, and was liable in nuisance if he did not.”
31. He continued at page 307:-
“The instant case is not one
concerning landslide or éboulement.
The law of Jersey on landslide or éboulement was not argued
before us and we are not prepared to say, therefore, whether Mesny v Marett
should be overruled on the basis of Leakey v National Trust &c.
Moreover, in Leakey v National Trust &c. the defendants were aware
of the danger and of the possible consequences; there was knowledge that a
potential nuisance of a significant nature existed and the defendants failed to
take steps to prevent damage occurring.
There is nothing in the report of Mesny v Marett to show that the
defendants knew or ought to have known of the risk of encroachment. Nor are we prepared to decide, without
full argument, whether Leakey v National Trust &c. should overrule
the principle of Jersey common law that the fonds inférieur is bound to
receive the éboulements which, without human intervention, descend upon
it from the fonds supérieur.”
32. We endorse the commentary contained in the Law
of Immovable Property Study Guide on voisinage
at paragraph 11.18:-
“11.18 There does not appear to be any inconsistency between the law of
England as propounded in Goldman v Hargrave and Leakey v National
Trust etc on the one hand and the law of Jersey as propounded in Mesney
v Marett on the other. The
Royal Court in Mesney v Marett based its decision, inter alia, on the
fact that the fall had not been caused by any negligent act or omission on the
part of the defendants. If there is
a hazard on the upper lying land of which the owner is or ought to be aware,
and he does nothing to remove the hazard, that failure to remove the hazard may
amount to negligence within the meaning of Mesney v Marett. The owner of the upper lying land will
be responsible if damage is subsequently occasioned to the lower lying land by
the hazard he has omitted to address.”
33. As McNeill J commented in Rockhampton v Gale
at paragraph 26:-
“So, whilst the Royal Court
decided the matter on principles of the law of nuisance cited from Halsbury,
the Court found the decision in Searley v Dawson and the writings of
Pothier equally of assistance in identifying the same overriding principle,
namely, that neighbouring properties had an obligation of support one to
another.”
34. In the Royal Court decision of Gale v
Rockhampton [2007] JLR 27, Bailhache, Bailiff said this in respect of the
use of the English law of nuisance in Mitchell v Dido:-
“30 …I would respectfully differ from
Tomes, Deputy Bailiff, in thinking it appropriate to apply principles relating
to the England law of nuisance when the cause of action actually lies in
voisinage. For my part, even if the
principles are similar, I would hold that the court should insist that the
correct nomenclature is applied and that the court should apply those common principles
in developing and explaining the law of voisinage.
31 In
my view causes of action arising in the law of land or quasi-contract should be
pleaded accordingly. It is not
appropriate to plead trespass or nuisance for the reason presciently given by
Le Quesne, Lieut. Bailiff in the Guernsey Insurance Authority case. If England technical terms are used to
describe a cause of action in Jersey law, they are apt to mislead, and to give
the false impression that the relevant body of English law has been incorporated
into Jersey law.”
The Court of Appeal agreed, quoting from
paragraph 141 of the judgment of McNeill JA:-
“It is therefore my opinion,
in line with the views expressed by the learned Bailiff below, that there is no
persuasive evidence that the English law of nuisance had, either at the time
the decision in Searley v Dawson or by the present time, been
assimilated into the law of Jersey.”
35. Mesney v Marett
should now be taken as part of the law of voisinage, as Bailache, Bailiff, said
at paragraph 23 of the Royal Court decision in Gale v Rockhampton:-
“In my judgment, Searley v
Dawson was not “plainly contrary to earlier authority”, nor
indeed wrong. It seems to me that
the judgment of Le Masurier, Bailiff, was plainly right and that it set in
their proper jurisprudential context a number of other provisions of the law
relating to immovable property with which practitioners would be familiar. One instance is the law relating to
éboulements [falls], that is the rule which requires the owner of lower
land to accept anything falling or descending naturally from higher
ground. Another instance is the law
relating to water … Other instances are the law relating to banks …
and the law relating to trees … None of these obligations is founded in
contract. All of them could perhaps
be characterised as natural servitudes (servitudes naturelles) but can equally
well be analysed as obligations, arising in quasi-contract, to be a good
neighbour and not to use one’s land in such a manner as to injure that of
the adjoining owner – obligations arising from the law of
voisinage.”
36. For the purposes of this case, we draw the
following principle from the authorities, namely that, whist the owner/occupier
of lower lying land is required to accept anything falling or descending
naturally from higher lying land,
if there is a hazard on the higher lying land, whether natural or
man-made, of which the owner/occupier is or ought to be aware, and he does not
take all reasonable steps to prevent or minimise the risk, that failure will
constitute a breach of his duties under the law of voisinage to the owner/occupier of the lower lying land; rendering
him responsible if damage is subsequently occasioned to the lower lying land by
the hazard he has failed or omitted to so address.
Decision
37. Applying the law of voisinage to the facts of this case, we find that:-
(i)
The steep
bank adjoining the Boat House (and the other huts) constitutes a hazard in that
it is unstable. It has given rise
to landslip in the past and the risk of sudden collapse in the future is
severe.
(ii) A landslip could cause substantial damage to
all of the huts, if not their entire destruction, and could extend to the
public road. The landslip in
December 2012 lifted the Blue Hut bodily into the middle of the public road. A deep circular failure involving the whole
slope, as illustrated in Fig. 5 under “C”, might, we venture to
suggest, give rise to very serious consequences both in relation to the huts
themselves but more importantly, to any occupiers of the huts and members of
the passing public. In view of the
evidence of Dr Sharp that the risk of sudden collapse is severe, those
responsible for the public road and the safety of those who use it might want
to give consideration to whether it should remain open to the public.
(iii) The defendant is fully aware of the serious
hazard the steep bank presents and has done nothing to address it.
38. We conclude, therefore, that the defendant is
in breach of its duty to the plaintiff under the law of voisinage.
39. Where a hazard has been identified and the
owner/occupier will not or cannot take all reasonable steps to prevent or
minimise the risk, then rather than wait for damage or even injury to occur, it
follows that the Court must have the power to permit the owner/occupier of the
lower lying land to do so, prime face
at the cost of the owner/occupier of the higher lying land.
40. The first stage is to carry out the site
investigation so as to ascertain what remedial works are required. Given the fact that the defendant has
not appeared at the hearing and according to the message received from its
director Mr Leech, has no means of meeting any judgment, we see no point in
first allowing the defendant itself time to carry out the site investigation;
particularly where the risk of sudden collapse is severe. It is clear that it will not, or cannot
do so. In that case, the plaintiff
must be permitted to do so.
41. We do, therefore, order that the plaintiff and
her duly appointed engineers, shall have access onto the defendant’s
property in order to carry out the topographical survey and geo-technical
investigation and the defendant will not obstruct that access.
42. The plaintiff shall not be liable to the
defendant for any change or damage whatsoever caused to the defendant’s
property in carrying out this investigatory work, save to the extent that such
change or damage is caused by her negligence or that of her agents. As the plaintiff is inevitably
investigating the entirety of the steep bank, which is in the interests of all
of the hut/site owners, it seems to us only reasonable that they should give
the plaintiff a release from and indemnity against any claims that might be
brought against her as a consequence of her carrying out this investigatory
work. It is clear from our discussion
with Advocate Hall that this is already contemplated.
43. As this is work which the defendant is under an
obligation to undertake and the cost involved is relatively modest, we are
prepared to order the defendant (which does own the steep bank) to reimburse
the plaintiff the reasonable costs that she incurs in carrying out the
necessary investigations.
44. Following that investigatory work, the
engineers will be in a position to advise on the remedial work necessary to
stabilize the steep bank, and the plaintiff will have to apply back to the
Court for further injunctive relief permitting her to carry out that remedial
work, assuming the defendant fails or is unable to do so. Realistically, that remedial work cannot
be limited to that part of the steep bank immediately behind the Boat Hut and
so all the hut/site owners will have to consider, together with the appropriate
authority responsible for the public road, how that work will be funded in the
first instance, bearing in mind that the defendant is not apparently in a
position to discharge any order that the Court might make that it should
reimburse the cost of such remedial work, its only asset apparently being the
steep bank itself.
45. We have referred to the appropriate public
authority because it seems to us that this is not a matter which just concerns
the private rights of the hut/site owners; there is a real risk here to members
of the public that use the public road.
Statutory nuisance
46. Advocate Hall also drew our attention to the Statutory
Nuisances (Jersey) Law 1999.
Under Articles 4 and 5 of that law, the Minister for Health and Social
Services has the power to investigate a complaint of statutory nuisance and if
satisfied that one exists, serve a notice upon the person responsible to
undertake any necessary works.
Failure to comply with such a notice without reasonable excuse is a
criminal offence.
47. The matters that constitute a statutory notice
are defined in Article 2(1) of the law and Advocate Hall suggested that the
facts of this case came within Article 2(1)(a) which is in these terms:-
“Any premises in such a state
as to be prejudicial to health”;
Certainly none of the other matters listed
could have any possible application.
48. Advocate Hall informed us that one of the other
hut owners had made a formal complaint to the Minister under this law but he
was not satisfied that a statutory nuisance existed. We were not shown any of the relevant
correspondence and no such complaint has been made by the plaintiff.
49. Advocate Hall said she was hoping that the
Court might feel able to suggest, obiter,
that there was a statutory nuisance here which the Minister should act upon,
although what good service of such a notice by the Minister on the defendant
would do is open to question, bearing in mind it has no means with which to
comply. In any event, it would be
quite inappropriate for us to do so in the absence of the Minister and when
under the law it is the Minister, not the Court that decides whether a
statutory nuisance exists.
Authorities
Abbott
Industries Incorporated v Warner & Ors
[1985-6] JLR 375.
Mitchell
v Dido Investments Limited [1987/88] JLR 293.
Rockhampton
Apartments Limited & Anor v Gale and Clarke [2007] JLR 332.
Searley v Dawson [1971] JJ 1687.
Reg’s Skips Limited v Yates [2008] JLR 191.
Mesney v Marett [1931] 236 Ex 337.
Goldman v Hargrave
[1967] 1 A.C. 645.
Leakey v National
Trust [1980] QB 485.
Halsbury’s Laws of England 4th
edition.
Gale
v Rockhampton [2007] JLR 27.
Statutory Nuisances (Jersey) Law 1999.