Walwyn v Brookes et Al

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Hylton, J.
• Judgment Date: 03 March 1993
• Neutral Citation: KN 1993 HC 5
• Docket Number: No. 34 of 1992
• Date: 03 March 1993

High Court

Hylton, J.

No. 34 of 1992

Walwyn

and

Brookes et al

Appearances:

Dr. Browne for the plaintiff

Mr. Charles Wilkin and Miss Deborah Brookes of Kelsick, Wilkin & Ferdinand for defendants

Tort - Nuisance — Injunction — Injunction to restrain defendants from keeping animals or poultry pens and enclosures on premises adjoining the plaintiff's property in such a manner as to cause a nuisance or injury.

Hylton, J.

1 The plaintiff's claim in Writ filed 20 ^th May, 1992 against the defendant is for an Injunction to restrain them from carrying on or permitting to be carried on upon their premises adjoining the premises of the plaintiff (to the East and South-east thereof) the keeping of animals or poultry pens enclosures in such a manner as by the discharge of noxious or offensive vapours or smells or otherwise to cause a nuisance or injury to the property and business place occupied by the plaintiff or the guests, servants or agents of the plaintiff. The claim for damages was abandoned at the outset and it was agreed that certain correspondence between the parties be admitted into evidence by consent.

THE BACKGROUND AND THE EVIDENCE:

2 The plaintiff owns and operates within the Tourist Industry and as her part-time dwelling a set of flats and apartments a short distance from the Town of Charlestown in Nevis along the Pinneys Road. The defendants live on lands adjoining the plaintiff and on these said lands they raise poultry, sheep and goats and the complaint is that the smells and vapours resulting from the rearing of these poultry and animals is nuisance to the plaintiff in the enjoyment of her property.

3 The evidence of the plaintiff is that she operates three cottages and four apartments as a business — part of the tourist industry, and that she lives part time at these premises and part-time at Liburd and Neal Estate. The apartments and cottages are situate at New Cut, Pinneys Road and next door thereto Mr. & Mrs. Elton Brookes reside (in a desirable residence). In addition to the defendants residence there is on their land a pen in which they house a quantity of poultry sheep and goats. The evidence of the plaintiff is that about 28–30 sheep and goats are housed on the premises at nights and about 2 dozen or more chickens are kept on the premises. The animals the plaintiff alleges are penned at night. The plaintiff's business and part-time residence was established before the defendants built their house and commenced occupation in or about the year 1989 and they have been raising the poultry and animals since about September, 1991. The plaintiff testified that she is affected by the smells and the noise from the poultry and animals. The smell is offensive and the intensity thereof varies with the direction of the wind and the weather. The intensity of the smells so occurs in cycles — when the pens are cleared there is an abatement; the pens are cleaned with disinfectant one gets the smells of the disinfectant coupled with the smell of the manure. The distance, the plaintiff testified between the animal pen and her premises is about 100 feet (as pointed out and estimated). By their defence filed 10 ^th June, 1992 the defendants admit that they then kept 3 dozen fowls, 5 goats with 7 kids and 2 sheep on their land.)

4 The plaintiff testified that when the alleged nuisance manifested itself she spoke to Mrs. Brookes the second defendant told her she wished to discuss a delicate matter with her and informed her that the smell from the animals was upsetting her and the guests. The plaintiff alleges that Mrs. Brookes told her that her husband (First defendant) cleaned the pen but she promised to speak to him. When there was no improvement letters were sent to the defendants and these letters

5 L.W.1 — 4 admitted by consent are reproduced hereunder:–

“P. 0. Box 508

Charlestown

Nevis

14th September, 1991

Mr. & Mrs. Brookes (Elton)

Pinneys Road, New Cut,

Nevis.

Dear Mr. & Mrs. Brookes,

Mrs. Lucille Lcuisy-Walwyn of Pinneys Village Complex (a Tourist Rental Facility) situate at New Cut Road, Pinneys, Nevis, has for some time now requested me to draw to your attention the following facts, in a formal manner.

• (i) Pinneys Village Complex was built in 1980 as a housing project and is operated as a business providing accommodation for visitors and others. (Listed in the Tourist guide of the Federation.)

• (ii) She respects all your property rights and your good selves as neighbours.

• (iii) You have constructed and developed your property as a dwelling house and your residence adjoining hers, over the past three (3) years, and you keep animals as a hobby.

• (iv) During the course of this year, you have built up in your yard pens for your goats, sheep and fowls, and as a result the smell of animal manure and waste settling in your pens have been creating such NUISANCE to her, her family and guests, that she is obliged to repeat her verbal complaint to you.

The situation is so bad that the smell being complained of, is experienced in each of her three (3) bungalows and two (2) apartments and all over the grounds of her complex, which closely adjoins your property situate to the South East of hers.

This letter is to call on you to cease and desist from keeping such pens in or about your yard which adjoins hers, so as to abate the nuisance of which she and the occupiers of her premises complain.

It is true that you told Mrs. Walwyn that your husband cleans the pens regularly, but she finds that even so, that the situation remains the same and the foul smell is unbated. The next stage would be infestation of flies etc…

Her next step will be to complain formally to the Public Health Inspectors and if there is no relief, she will have to see her lawyers towards seeking an Injunction Order, against you, a procedure which she is hesitant to take and which I would not want her to pursue except as a last resort.

Please have the matter settled amicably by September 30 ^th, 1991, well before the start of the next tourist season, as she has been losing some summer rental occupancy, due to the nuisance complained of above.

Yours truly,

Sgd, Eugene Walwyn

Eugene Walwyn, (husband of Lucille Louisy-Walwyn).

EW/ew c.c. Messrs Phillips, Phillips & Archibald

Chambers

St. John's ANTIGUA”

6 L.W.2

“Pinneys Village Complex

Pinneys Road

New Cut

Nevis.

28th October, 1991.

Mr. & Mrs. Elton Brookes

Pinneys Road

New Cut

Nevis.

Dear Mr. & Mrs. Brookes,

On 18 ^th September, 1991, I wrote to you on behalf of Mrs. Lucille Louisy-Walwyn and the subject of NUISANCE to her adjoining premises being perpetrated by your animals. A copy of the letter is attached hereto.

The nuisance has not abated and up to this morning the smell of animal manure from your pens have permeated the two apartments on the South side of the premises, the Service Station, the shop and the area around the 3 cottages.

It does not appear as though you a re taking Mrs. Walwyn's complaint seriously and this letter is to inform you that a complaint is being formally made to the Public Health Department requesting the removal of your pens, which are causing the nuisance.

Yours faithfully,

Sgd. Eugene Walwyn

Eugene Walwyn (husband of Lucille Louisy-Walwyn).

EW/ew

Enc.”

7 L.W.3

EUGENE WALWYN, J.P. P. 0. Box 508 CHARLESTOWN, NEVIS

WEST INDIES

16th Jan. 92.

“Mr. & Mrs. Brookes

New Cut Road

Pinneys

Nevis.

Dear Mr. & Mrs. Brookes,

I am instructed by Mrs. Lucille Louisy-Walwyn of Pinneys Cottaops and Apartments to give you final notice that she will be applying to the court for an injunction against your keeping goats sheep and fowl in pens at your yard adjoining her premises — such being a nuisance to her and her guests, caused by the noxious smells from pen manure on your premises.

Mrs. Walwvn had hoped that the nuisance would have been abated since she complained to you last year, and her report to the Sanitary Officer of the Health Department and the visit to your premises; but you deem it best to ignore the complaints.

Yours faithfully,

Sgd. Eugene Walwyn

Eugene Walwyn,

Solicitor for Lucille Louisy-Walwyn.

EW:ew”

8 L.W.4

EUGENE WALWYN, J.P. P.0. BOX: 508 CHARLESTOWN, NEVIS

WEST INDIES

16/4/92

Mr. Elton Brookes &

Mrs. Mabel Brookes,

New Cut Road,

Pinneys,

Nevis,

Dear Mr. & Mrs. Brookes,

Further to complaints about the nuisance caused to the business premises of Mrs. Lucille Loufsy-Walwyn at Pinneys Road, New Cut Road, Nevis, I have been instructed to inform you that she and the occupiers of her premises still complain about the noxious smell of animals manure emanating from pens situate on your land to the South-East of her premises.

Earlier letters have called upon you to take steps to abate the nuisance, but it appears that all efforts in that direction have failed.

Mrs. Lucille Louisy-Walwyn is now requesting that you remove the pens which seem to be the source of the nuisance; and she is prepared to seek a Court Order and an Injunction...