Robert Highmore and James Davies consider whether a purchaser of a flat, who has recently moved in, can take direct action against a venue to stop it playing loud music
Question
I recently bought a flat in a new-build development situated on a brownfield site in an area which is predominantly industrial. A short distance from my flat is a venue that is frequented by local workers and, at least one night per week, plays very loud live music. I have contacted the local authority, which is reluctant to take any action against the venue as it has been there for at least 20 years and is famed for its live music. Can I take action directly against the venue to stop it from causing such noise?
Answer
The music played by the venue may amount to a nuisance. Whether it does will depend, in part, on the established pattern of uses of the area in which the venue is situated. The fact that you have recently purchased your flat and therefore have “come to the nuisance” after it commenced, will not provide a defence to your claim. However, in principle, it is possible for the venue to have acquired a right to cause noise, which would otherwise amount to a nuisance, by prescription. Even if the claim in nuisance is made out, the court may exercise its discretion to grant you damages in place of an injunction.
Explanation
If the noise emitted from the venue unduly interferes with your enjoyment of the flat, it may constitute a nuisance. If so, you could make a claim for an injunction to prevent the venue from playing loud music, or, at the very least, an injunction limiting the volume or the times when the venue is able to play such music.
Whether the music amounts to a nuisance will depend, in part, on the nature of the locality in which your flat is situated. In this respect, the court must assess the level of noise, which, objectively, a normal person would find it reasonable to put up with given the established pattern of uses of the area. This will be an issue of fact and judgment for the judge hearing the claim.
In the present case, given that the venue is situated in a predominantly industrial area, it may be less objectionable for the venue to host live music than if the venue were located in a quiet suburban area.
In the recent case of Lawrence and another v Coventry (t/a RDC Promotions) and others [2014] UKSC 13; [2014] 1 EGLR 147, the Supreme Court confirmed that, in assessing the character of the neighbourhood, it is permissible to take into account the use to which the alleged wrongdoer puts its land, at least in so far as those activities amount to a lawful part of the established pattern of uses of the area. To the extent that the alleged wrongdoer’s activities cause a nuisance, they will not amount to a lawful use of his land and cannot therefore be taken into account for the purposes of assessing the established pattern of uses of the area. Accordingly, the venue may rely on its own activities and, in particular, the noise that it creates, save to the extent that that noise constitutes a nuisance.
The Supreme Court in Lawrence confirmed that it is no defence to a claim in nuisance that the claimant has “come to the nuisance”. In other words, if the music does amount to a nuisance, the fact that you have only started to occupy your flat after the nuisance started will not necessarily preclude your claim.
However, there may be scope for the venue to argue that your claim should fail if: (1) there was an alteration in the use of the land on which your flat is situated after the venue commenced hosting live music (ie a change to residential use); and (2) the live music would not have amounted to a nuisance before that alteration. This is because it is arguable that, in so far as it was lawful, any pre-existing activity on the part of the venue formed part of the established pattern of uses of the area.
Alternatively, if the venue has been hosting live music for over 20 years and the volume of the music amounted to a nuisance, the venue may have acquired a right to play such music, which cannot now be challenged as a nuisance. In Lawrence, the court confirmed, in principle, that it is possible for an alleged wrongdoer to obtain by prescription a right to commit what would otherwise be a nuisance by noise, or, put another way, a right to transmit sound waves over neighbouring land.
Even if the court does decide that the live music hosted by the venue amounts to a nuisance, although the starting point is that an injunction should be granted to restrain the nuisance, the court may exercise its discretion to award you damages as opposed to an injunction. The normal measure of damages is the reduction in value of the property as a result of the nuisance. It is possible that the price that you paid for the flat already took account of the activities of the venue (whether in part, or in whole). This may severely reduce the amount of damages that you receive.
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Robert Highmore is a partner and head of the property litigation team at Charles Russell Speechlys LLP and James Davies is a barrister at Enterprise Chambers
Questions on any topic can be e-mailed to egq&a@enterprisechambers.com and egq&a@crsblaw.com
