This is a nuisance case and that the balance of convenience is in favour of Mr Douglas with regard to the application for an interim injunction.
The D’s allegation of trespass
Mr Douglas is not publicly funded
D’s agreed that counsel for both sides will meet on 29th April 2004 prior to the application for the interim injunction in order to attempt to settle this matter.
1.Mr Douglas is the owner and occupier of the house and land at 12 Kellyfield Drive, Hogarth, Poole and lived there with his son. The Dingle & Co Limited are the owners and occupiers of premises at 30 Morrison Road, Hogarth, Poole where they carry on the business of builders and builders’ merchants.
2.The C moved into the house on 20th Feb 2004. Since that date the Ds in the course of their business have wrongfully caused or permitted excessive noise and /or dust deposits to come into and about the C’s house, which constitutes a nuisance to the C.
A) Excessive noise:
(1) Every day, Monday to Saturday inclusive, from 8.00am to 7.30 pm the Ds carry on business from the premises-the excessive hours during which the Ds premises are operated-in a residential area.
(2) the cement mixer, the Ds’ employees are always banging with hammers, sawing wood and also shout very loudly that he could hear every word they are saying , often loud swearing. He is afraid this may influence Oscar who is 14 years old.
(3) Very large lorries constantly deliver raw materials, again causing dust but also additional noise by reason of their driving into, dropping large of gravel and then reversing out of a small area at excessive speed. There seems to be a lorry arriving about every 2 hours or so.
(4) A cement mixer operates throughout this period, continually churning and making a very loud, continuous noise.
Mr Douglas thought it was a building project and would last only a short time and then end.
Mr Douglas wants through an injunction forbidding the Ds whether by their servants, agents, officers or otherwise to
(a) Carry on in the premises at 30 Morrison Road, the trade or business of builder and /or builder’s merchant.
(i) except between the hours of 9.00 am and 5.00pm Monday to Friday inclusive, and
(b) Use or permit to be used upon the premises at 30 Morrison Road, a mechanical concrete mixer
(i) except between the hours of 9.00 am and 12.00 pm Monday to Friday inclusive, and
The C has on 3 occasions (once orally, twice by letter) requested the Ds to abate the nuisance complained of, but the Ds have failed to do so and threaten to continue to do so unless forbidden by injunction of this Court.
B. Excessive Cement and Dust
(5) Cement and dust particles from the cement mixer and the Ds’ employees mixing cement and other materials come over the C’s fence and are deposited over the garden, house and washing belonging to the C.
(i) it is ruining the C’s bonsai trees which are kept in the garden and are sensitive to dust-since he was very young he has grown bonsai trees-to grow the trees kept outdoors- total 5 bonsai trees-3 trees died in total-caused him great distress as these trees for 30 years-difficult to place a monetary figure on their cost-can’t take the remaining trees inside as they are outdoor trees-best been able to do is to build a little shelter around each tree but this does not stop all the dust and is likely to hinder the trees growth in the long run-the local bonsai shop specialist said it was worth about $900 but to him it was worth much more as he had cared for it for over 25 years.
(ii) it means the C has to dry all washing indoors, alternatively to take it to the local launderette to dry. The washing he had hung in the garden to dry was covered with dust. Two shirts and a pair of jeans costing in total about $100 were ruined. Since then I have forced to dry all the washing indoors which is inconvenient-laundrette which costs $2.40 to dry a week’s worth of washing.
(iii) the windows and paintwork of the house have to be cleaned every three days and the back of the house paintwork is being damaged.
On the Sat 3rd April 2004, he discovered that a second of his bonsai trees had died-he went to the Ds’ premises and switched the cement mixer off-no one was there.
Particulars of Special Damage
(i) Damage to bonsai trees growing in C’s garden $1,030.00+900
(ii) Damage to clothing put out to dry $ 100.00
(iii) Damage to paintwork of house $ 300.00
The costs, to date, excluding Counsel’s fee, are $400.