Noise from factory – Factory situated in area of mixed residential and industrial property – Plaintiffs complaining of sleep disturbance from noise levels – Whether common law nuisance established – Judge finding nuisance not established – Appeal dismissed
The plaintiffs, Mr and Mrs M, lived at the Orchard, Illminster, Somerset, a property conveyed to them in 1979. They moved in to the property in 1988. The plaintiffs also owned 2.7 acres of adjacent land in respect of which planning permission had been granted for the erection of six houses. The defendant’s factory, which had been in operation since the 1950s, was extended in 1987. Both the Orchard and the factory were situated in a mixed area of residential and industrial property not far from the A303 Illminster bypass. The plaintiffs brought a claim against the defendant for damages for noise nuisance over a period of approximately five to six years particularly relating to noise emanting from the factory throughout the day and night, seven days a week, which caused sleep disturbance.
The plaintiffs’ expert witness, O, used BS 4142 to assess the result of noise level readings and calculated that the level in the bedroom amounted to 35dB(A). The defendant disputed those calculations. Apart from a written statement from a neighbour, no other evidence was forthcoming from other residents in the vicinity. The judge had evidence in the form of the World Health Organisation report Environmental Health Criteria 12, Noise (1980), which stated that “studies have indicated that the disturbance of sleep becomes increasingly apparent as ambient noise levels exceeded about 35 dB(A)”.
Noise level readings were taken by the local authority’s environmental health officer, the EHO, between August 1987 and 1990, but in a letter dated January 1993 the EHO’s assessment was that no statutory nuisance existed. The judge dismissed the plaintiffs’ claim and the plaintiffs appealed contending, inter alia , that he had failed to take into account the effect of fluctuating noise levels which were more likely to cause sleep disturbance than steady noises at the same median level, and that he had been wrong to take into account both the lack of evidence from other residents and the letter from the EHO.
Held The appeal was dismissed.
1. The judge had concluded that the agreed measurement of the noise level was the same as or only marginally above the WHO recommended level and had not erred in finding, supported by the finding of the environmental health officer that a statutory nuisance did not exist at the Orchard, and that it was not sufficient on its own to establish that the noise from the factory was so obtrusive as to amount to a nuisance. The judge had not erred in taking into account the lack of support from neighbours nor had he failed to take into account fluctuations in noise levels.
2. Although the restorative value of sleep was of importance, it was not a proposition of law that there was necessarily a common law nuisance if sleep was disturbed in a house in an area such as that in which the plaintiffs’ house was situated.
Peter Wadsley (instructed by Stephens & Scown, of Exeter) appeared for the appellants; Roger Eastman (instructed by Penningtons) appeared for the respondent.
