Council right to seek injunction against vegetable processing plant: judge

It was reasonable for a council to apply for an interim injunction against a company over allegations of a bad odour from its vegetable processing plant, a High Court judge has ruled.

North West Leicestershire District Council (NWLDC) applied for an injunction against AB Produce on 9 September 2016.

This was after the authority had received ongoing complaints from local residents about bad odour from a processing plant near Measham.

NWLDC was seeking an order that the company should empty lagoons at the site or to cover them.

AB Produce emptied the lagoons before the injunction was granted, so NWLDC did not pursue the application.

In the Queen's Bench Division of the High Court Mr Justice Spencer was asked to rule on the costs of the proceedings. In North West Leicestershire District Council v AB Produce, the judge found that:

• It was inappropriate to approach the issue of costs on the usual basis of looking to see who had won. It was agreed that the real issue was the parties’ conduct.
• It had been reasonable for the council to issue the application for an interim injunction. “The volume of complaints received from members of the public between June and September left the claimant with no option but to take some further effective step to abate what it was now satisfied amounted to a statutory nuisance. The 7 day time limits which were repeatedly imposed in correspondence were admittedly very short. However, the reality is that the defendant had been given nearly two months to take the necessary practical steps to address the very real problem of odour from the lagoons, or at least indicate what steps it proposed to take.”
• It was “highly regrettable that it was not spelt out more clearly at the start (if there was then such an intention) that the necessary permits had been sought from the Environment Agency to enable the defendant to empty completely and remove from the site all the effluent stored in the eight lagoons”. There could have been clearer communication. It was also highly regrettable that the defendant did not say what it had in mind. Instead the correspondence “became bogged down in argument and counter argument”.
• Had there been a timely indication of the defendant’s intention to empty the lagoons completely and tanker away the effluent from the site, the council would not have needed to apply for an interim injunction. As soon as the claimant authority discovered that the remedial action had been taken, it took immediate steps to halt the proceedings.
• The judge accepted that it had been imperative to bring matters to a head as soon as possible. The decision to apply for an interim injunction had been vindicated by the remedial action that was subsequently taken. “For that reason I am entirely satisfied that it would not be right to award the defendant any part of its costs of these interim injunction proceedings.”
• The council’s initial stance that there should be no order as to costs was the correct and proper one. (That position had changed when the defendant rejected the proposal). “The claimant had acted properly and responsibly in making the application for an interim injunction, and equally properly and responsibly in not pursuing it to a hearing.”
• There were, however, aspects of the claimant’s conduct which could be properly criticised. The imposition of 7 day time limits was unrealistic. It was also regrettable that practical steps suggested by an expert had not been put forward much earlier. Had this solution been shared earlier, the judge suspected, matters could have proceeded more amicably and a practical solution found sooner. “That said, I remain unimpressed by the way in which the defendant withheld disclosure of the steps it proposed to take in emptying the lagoons and tankering away the effluent from the site.”
• He had therefore reached the conclusion that, equally, it would not be right to order the defendant to pay the claimant’s costs of the interim injunction application or any part of it. Each party should bear its own costs of the whole of the interim injunction application.

North West Leicesershire said it was now “focussing on a long term solution to avoid nearby residents suffering a nuisance from odour caused by AB Produce in the future”.

This will involve defending an appeal made by AB Produce against an abatement notice issued on 14 August 2015.

Cllr Alison Smith, Deputy Leader and Portfolio Holder for Community Services at NWLDC, said: “The council has been actively seeking a resolution to the ongoing odour issues caused by AB Produce and has sought to use its legal powers to remove any nuisance caused by the plant to nearby residents.

“We are pleased that the company has made steps towards reducing the problem without the court having to grant an injunction and we hope that the company will work with us in the future to come to a long term solution.”