B2/2001/0355
Neutral Citation Number: [2001] EWCA Civ 2101
IN THE SUPREME COURT OF JUDICATURE      
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(HIS HONOUR JUDGE NICHOLL)
								Royal Courts of Justice
								Strand
								London WC2

							Thursday, 20 December 2001
B e f o r e:

LORD JUSTICE PILL
LORD JUSTICE TUCKEY
LORD JUSTICE JONATHAN PARKER

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HARRY LAWRENCE GOODE
Claimant/Respondent

- v -

(1) JOHN ERNEST OWEN
(2) FOUR ASHES GOLF CENTRE LIMITED
Defendants/Appellants

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0207 404 1400
Official Shorthand Writers to the Court)
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MR M J MCGEE (Instructed by Eversheds, Birmingham, B3 3AL) appeared on behalf of the Appellants

MR S. DIN (Instructed by Bell Lax Litigation, Birmingham, B72 1QL) appeared on behalf of the Respondent

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J U D G M E N T
1.	LORD JUSTICE PILL: This is an appeal by defendants, John Earnest Owen and Four Ashes Golf Centre Limited, against a decision of His Honour Judge Nicholl given at the Birmingham Crown Court on 26 January 2001. 
2.	The claimant, Mr Harry Lawrence Goode, a cattle and sheep farmer, complained about activities at the neighbouring golf driving range owned by the first defendant, Mr Owen, and operated by the second defendant, the company. I am told that the trial lasted five days and Mr Goode appeared in person.
3.	A number of issues were resolved by the judge. The remaining one relevant to this appeal arises because golf balls used at the driving range were frequently found on parts of the claimant's adjoining land. The areas on which the balls alight, described by the judge as the contaminated areas (and I will adopt that expression), has been defined on plans prepared by chartered surveyors acting for the parties on the basis of the information given to them. 
4.	For the defendants, Mr McGee sensibly accepts that for present purposes the less favourable interpretation of the contaminated areas by way of area and size should be accepted. The differences do not appear to be considerable. The total areas amount to about two and a half acres. The largest of the areas is on the claimant's land to the south of the range and is about one and a half acres in size. The judge found that about 1,000 golf balls a year alighted on the contaminated areas and what constituted a nuisance in law had been established. To abate the nuisance, the judge intended to order the erection of a 40 foot high fence to prevent the egress of balls to the area which I have mentioned of about one and a half acres to the south of the range. The work would involve some re‑routing of electricity cables and the cost would be a figure approaching £60,000. 
5.	The order could not be made at the hearing because of the need for planing permission if a fence of that size were to be erected. Appropriate provision was made by the judge by way of a conditional order with liberty to apply. The judge also ordered the defendants to pay £15,106 by way of damages, plus interest. That sum was based on an assessment of the loss to the claimant by reason of loss of hay and silage from the contaminated land and from a much larger area of land surrounding it. 
6.	In assessing damages two periods of time were to be considered because in about 1995 the defendants had erected at the western end of the range a fence which protected the claimant's land from the balls which had previously strayed there. The judge's central finding of fact was: 
“...Mr Goode has suffered the loss of his hay crops from the whole 27 acres in the two earlier years [that is up to 1996] and from 16 acres only since 1996” 
		(16 acres was later corrected to 18 acres).
7.	In assessing damages regard was had to the fact that there was evidence that the claimant had sold hay to the proprietor of a livery stable and to other owners of horses. The defendants were ordered to pay two‑thirds of the costs of the action. On other points, not now in issue, the claim failed. 
8.	On behalf of the defendants Mr McGee submits that the judge should have found, first, that the escape of golf balls from the defendants' land did not substantially interfere with the use of that land for making hay or silage. Second, he submits the judge should have found that the defendants had taken reasonable and sufficient steps to prevent balls from escaping on to the claimant's land. I have referred to the fence which had been erected at the west end of the range. 
9.	It is also submitted that injunctive relief should not in any event have been granted. It was unreasonable for the defendants to be required to erect this substantial fence. Moreover, it is submitted even the erection of the fence would not have prevented the escape of some golf balls on to the area of about one and a half acres. The evidence was that the hay would not be saleable to the claimant's customers even if the number of balls was greatly reduced. The danger to horses was such that even the possibility of a small number of balls in the hay sold could not be accepted. 
10.	The judge made findings of fact based on agreed expert evidence. He found that sheep would not ingest whole golf balls in the fields and would be most unlikely to ingest part of a golf ball. He found that the risk of cattle in the fields ingesting a whole or part golf ball was also minimal. On the basis of those findings he went on to find that there was no reason why the fields in question should not be grazed by sheep and cattle. He was referring to the entirety of the 18 acres. 
11.	Mr Goode had accepted in the course of his evidence that: 
“... in the field, sheep are careful eaters; they nibble the grass; they don't swallow things, certainly not large objects.” 
12.	There is a secondary issue in this case as to whether hay cropped from the contaminated land could safely be used in troughs for winter feed as distinct from the contaminated land being grazed. I will return to that issue later in this judgment. 
13.	The judge went on to find, and this is the first and major issue between the parties, that the presence of golf balls on the contaminated land rendered the whole of the 16 acres unusable for the purpose of mowing and the sale of the hay. The claimant had not in fact mowed the contaminated land for many years. The judge found that the claimant “acted reasonably in doing so”. The claimant was entitled, he held, not to mow the fields but rather to claim damages from the defendants by reason of his inability reasonably to do so. The judge's reasoning appears at page 218 of the judgment. There is a reference to weeds which are not now in issue and I will not include that part. 
“It would not have been practicable either to fence off the main contaminated areas within 4432 or 6928 or, at the material time, 2850, [that is the land to the west] and to top them or leave them uncut while taking hay from the remainder ... In any event, on that point, I accept Mr Goode's evidence that although, of course, it is physically possible to mow into corners, it is very inconvenient and by no means normal to have to do so. Obviously, some fields have awkward corners because of history, but what is being suggested on behalf of Mr Owen and his company is that in order to mitigate his loss, Mr Goode ought to fence off a portion of land, the portions of land broadly coloured ... [on the plan which is now (page 446)] and to mow the rest. That is, in effect, saying he must treat those as useless and that his loss is limited to the value of those areas.” 
14.	The judge then held: 
“It follows from the facts as I find them that Mr Goode has suffered the loss of his hay crops from the whole 27 acres in the two earlier years and from 18 acres only since 1996.” 
15.	The defendants' case is that by selective mowing, that is selective between the contaminated and non‑contaminated areas, or by fencing the contaminated areas, the problem could be dealt with in such a way as to permit the profitable use of the rest of the fields constituting the 18 acres. It is also submitted that the work on the farm as a whole could have been organised in a way which overcame the problem which had arisen, but the appeal is not decided on that ground. 
16.	For the claimant, Mr Din submits that the judge was entitled on the evidence to reach the conclusion he did that the entire 18 acres was not capable of the profitable use contemplated for it. The judge was entitled to hold that the entire area was not mowable or profitable. This was a straightforward commonsense view, he submitted, based on the evidence. 
17.	Mr Din relied upon the evidence of Mr Goode at Day 3, page 34 when the point was put to him that the remaining parts of the field could be mowed. 
“No, I would not be confident and it would not be practicable if you went in there with a mowing machine. It is only a small field. If you have got a trailing mower and you are going to be turning corners all the time should I have to do that? Is it reasonable that I should have to do that?” 
		Page 35: 
“If you mow a field you want some good straight runs. You do your headland. What sort of headland? Would it be going all round those bends? You have got the bottom and then you go to the left, no sooner. You are trailing a machine remember. It is not easy to do and you have got to go round and back, up the top into a corner. How are you going to turn round in that corner? Every time you go you have got a shortcut back. It is not practicable really, and you go to bale or whatever you do afterwards, you have the same problem manoeuvring and getting it round. It is not commonsense to do it.” 
18.	Reliance is also placed upon a statement in the report of the claimant's chartered surveyor, Mr Ridgway (page 452): 
“I have accepted Mr Goode's point that he is unable to make hay on the land and that due to the variable positioning of the golf balls on the land it is a random pattern and due to the size of the fields it is not possible to make hay on part of the fields.” 
19.	The defendants' expert witness gave evidence to a contrary effect. 
“Q.Mr Goode suggested that it might impair one's ability to mow that land? Do you agree? 
A.I would disagree with that. It is not really a regular shape. Many fields have irregular boundaries and hedges that run in curves and sometimes along stream and river sides and they are as curved as that, but I do not think that there would be any inability to farm it because of that.” 
20.	Cross‑examined by Mr Goode: 
“A.Mr Goode, if that was a river bank or if that was a road that happened to have a curve and a bend like that, your tractor driver or you or I would do it perfectly satisfactorily.” 
21.	The judge put a question to him in relation to a corner. 
“A.In the corner that Mr McGee put to me yes, indeed, to a minor extent. The rest of it, your Honour, no, I do not agree at all.” 
22.	Mr Goode interposed: 
“It is all corners”. 
23.	A further question put by the judge: 
“If there are not golf balls there he can go straight up and down in straight rows, which is obviously desirable and makes the job easier. If you have a slice out of it, like a bit of cake or whatever, this is no more awkward for him than it would be if there were no.....” 
	‑‑ and the answer interrupted the question: 
“It is easier to drive in straight lines than curves, but not that much easier.” 
24.	Mr Goode put a further question: 
“There is so much cost and expense in turning round and messing about instead of getting straight on with the job. Do you accept that? 
A. I will accept that to a small degree, Mr Goode, yes. 
Q. You cannot eliminate it, can you? It has to be taken into account. It is a fact. 
A. It is a fact, Mr Goode.” 
25.	I do not doubt the genuineness of Mr Goode's approach to this question. However, having considered the evidence, the plans which have been placed before the court and the submissions of Mr Din I find the evidence of Mr Goode on this issue wholly unacceptable. The fields themselves are rectangular so that changes of direction, either of 90 degrees or back on yourself, are in any event inevitable. Frequent changes of direction will be necessary whether or not a part of the land is to be excluded from the mowing. The largest of the areas, about one and a half acres, is bow shaped with a straight line on the golf range and the bow extending into the claimant's land to the south. Construing the plans of the areas in the most favourable way I can to the claimant, I fail to understand how the presence of the contaminated areas, including that to which I have just referred, renders the entire area of 18 acres unmowable by machinery. Using his best efforts, Mr Din has been quite unable to explain to the court how, given the shape and areas of land concerned, Mr Goode's evidence is acceptable. 
26.	I accept that there comes a point where an intrusion into a field or series of fields becomes such that what remains of the field or series of fields may be unmowable in any practicable sense by machines. In my judgment, the present intrusions fall very considerably short of that. I accept that some method of marking will be necessary in order to provide sight lines. I am unable to accept the evidence that the balance of the 18 acres is unmowable by machinery. Of course I depart from the judge's finding of fact with reluctance. However, some explanation is required of the assertions which Mr Goode has made before they can be accepted. Mr Goode plainly did his best at the trial and the Court has full regard to the evidence which he gave, but I find his evidence on this question unacceptable. 
27.	I would uphold the judge's finding that a nuisance was present by reason of the escape of the golf balls. I would, however, hold that the nuisance was confined to the contaminated areas of land shown on the plans and amounting to about two and a half acres. The effect of the injunction would impact only upon one of those contaminated areas, though it is the largest one, amounting to about one and a half acres. The fence which the judge has required would protect only that limited area. In my judgment, injunctive relief cannot in those circumstances be justified. The possible and partial sterilisation of the area of one and a half acres cannot justify a requirement to erect and maintain a large and expensive fence. 
28.	Mr McGee also relies upon the point that even with the fence the problem would not be solved in that the possibility on the evidence of some golf balls going into the area, notwithstanding the fence, would render the produce from that area unsaleable. I do not accept the principle that, if it can be shown that a remedial measure does not wholly solve the problem, the remedial measure should not be taken. If the evidence justifies even more severe measures in order that the nuisance should be abated the Court will in appropriate circumstances order those measures. However, it is a factor to be borne in mind when attempting to strike the balance between adjoining land owners. The measure suggested does not solve the problem and it is a factor which weighs against injunctive relief of the kind contemplated by the judge. 
29.	In my judgment, the appropriate relief for the claimant having regard to the finding of nuisance is in damages. 
30.	As we indicated at the close of argument, we propose to remit that question to the County Court. The question now arises on a basis quite different from that considered by the judge and we do not think an appropriate course would be for this Court to attempt to resolve it upon the hearing of this appeal. 
31.	We shall be addressed at the conclusion of this judgment as to any agreement which may have been reached between the parties as to damages, either as to the principles to be applied or as to the figures. 
32.	I mentioned earlier in this judgment the secondary issue which is before the Court. Mr McGee contends it relates to damages. Mr McGee contends that the judge found, or should have found, that the two and a half acres, which on the evidence were usable for grazing purposes, could also be mowed and their produce used by the claimant by way of winter feed for his sheep. Even on the basis that the hay silage could not be sold, it could be used by the claimant for that purpose. Mr McGee relies upon a finding of the judge (page 215): 
“...I find that risk of physical injury to either cattle or sheep from ingestion of golf balls or from pieces of golf ball is minimal. It is not a substantial interference with Mr Goode's use of his land.” 
33.	The question is whether in making that finding the judge was referring only to the ingestion during grazing or whether he was also making a finding that the risk of ingestion on feeding from troughs was minimal. The finding follows a long passage in the judgment in which the judge considers several risks. I have referred to Mr Goode's evidence about sheep being careful eaters when in the field. Mr Goode also gave evidence upon which the judge made this finding: 
“It is common agreed evidence in this case that animals would only swallow a golf ball which, as everybody knows, rolls if they can trap it against something. So the risk to animals of eating golf balls really only arises if it is in a feeding trough, so that the animal can corner the golf ball and eat it in that way.” 
34.	The judge went on to consider the death of one of the claimant's sheep. That sheep had ingested from a trough hay which had been returned from a commercial client as being unsuitable for horses. The judge found that the evidence of the claimant's witness that the cause of death of the sheep was the ingestion of a golf ball was correct. 
35.	The finding of fact on which Mr McGee relies is immediately followed by a further paragraph dealing with the question of pasturing cattle or sheep. Moreover, the judge referred to agreed evidence about the “trap”. Indeed the defendants' expert, Dr Andrews, did accept that there was a risk from ingestion in that way. In my judgment, in that context, the finding of the judge on which Mr McGee relies was only in relation to the risk during pasturing. It was minimal only in that context. The agreed statement of experts and the gloss which Dr Andrews put on it, which the judge accepted, does not include any reference to the absence of risk at the trough. The references there are to absence of risk in the fields. Moreover, at the conclusion of the part of the judgment to which I have referred, the judge made his general statement that Mr Goode “acted reasonably” in ceasing to mow the fields as a whole. In my judgment, what the judge found, and what he was entitled to find, was that the minimal risk to which he referred applied only to pasturing. There was a risk of injury or death to sheep if they were eating in troughs hay which might contain golf balls. What is more, the evidence was that 1,000 golf balls a year were deposited in the contaminated areas. There was plainly a risk that golf balls would find their way into troughs if the hay was mowed and used for that purpose. I regard the finding, which I consider the judge made, that the claimant should not expect his sheep to eat at the trough hay silage from the contaminated two and a half acres, was a reasonable and sensible one in the circumstances. 
36.	For the reasons I have given, I would allow this appeal in part and hear further submissions from counsel as to the form the order should take. 
37.	LORD JUSTICE TUCKEY: I agree. Since we are reversing the judge's finding of fact that the contamination of about two‑and‑a‑half acres of Mr Goode's land justified his decision not to mow and make hay from the whole of this part of his farm (an area of 16 acres) from 1996 onwards, I should state shortly my reason for doing so. 
38.	The judge's reasons for making this finding are to be found at pages 218 and 219 of the appeal bundle and my Lord has already quoted the relevant passage. I confess I do not entirely follow the judge's reasons for his finding. He says that it was not practicable to fence off the contaminated areas. That may be so, but it does not provide an explanation as to why Mr Goode should not be able to mow the uncontaminated thirteen and a half acres of land. The judge appears to have accepted Mr Goode's evidence that it was not practicable to do this because of the difficulty of mowing into corners. One look at the plans showing the two fields concerned and the contaminated areas shows that such a view is untenable. No more corners as such are created by the encroachment of the contaminated areas into the fields. Thirteen and a half acres is a large area and there is no apparent or suggested topographical reason why the claimant's use of this land is restricted. I cannot see that the small encroachments into these fields had this effect either. 
39.	LORD JUSTICE JONATHAN PARKER: I also agree. The judge's judgment and the order which he made depended to a significant extent upon the conclusion which he reached at page 51 of the transcript of his judgment (page 217 in our bundle) in the following passage: 
“For the sake of his reputation and to avoid rejection of hay by purchasers, Mr Goode ceased to mow the contaminated fields for hay or silage. In my judgment, he acted reasonably in doing so.” 
40.	The reference to “the contaminated fields” is a reference to the four fields comprised in what was referred to at the trial as block A, extending to some 27 acres. That conclusion was qualified by the judge's further conclusion at page 52 of the transcript of his judgment (page 218 of our bundle) that following the erection in May 1995 or thereabouts of a fence at the western end of the driving range it would have been, as the judge put it: “perfectly practicable to shut up only fields 4432 and 6928 for hay or silage, even if it may have been inconvenient.” 
41.	Hence, following, the erection of the fence, the relevant area was reduced to some 16 acres. However, given the relatively small area directly affected by stray golf balls, some two and a half acres or thereabouts, I am, for my part, quite unable to discern any satisfactory basis for the judge's conclusion that it was not reasonable for Mr Goode to continue to take hay from the remainder of the fields in question. For my part, it seems entirely clear, for the reasons which my Lords have given, that the remainder of those fields, far from being rendered useless, was fully available for the taking of hay. Accordingly, I must respectfully differ from the judge's conclusion on this vital aspect of the dispute. That effectively undermines the judge's approach to the relief which he granted in terms both of injunctive relief and of damages. 
42.	As to the injunctive relief which the judge granted, I agree that such relief is rendered wholly disproportionate in the light of the relatively small area directly affected by the nuisance and that that part of the judge's order should be set aside. 
43.	As to damages, I agree that the case will have to be remitted for an assessment of damages to be made on the true basis. I accordingly agree with the order which my Lord, Pill LJ, has proposed. 
Order: Minute of order to be handed in by counsel.