The test for statutory nuisance under section 82 of the Environmental Protection Act 1990 is the same as for a private nuisance. Is there a material interference with the use of the claimant’s land, assessed objectively?
The Administrative Court has dismissed an appeal against a refusal to order a noise abatement notice in Dennis and another v Head Start Day Nursery Ltd [2024] EWHC 1248 (Admin); [2024] PLSCS 99.
The case concerned 54 Abingdon Grove, which had been used as a nursery for children aged three months to five years since the early 1990s. The prosecutors, Audie Dennis and Georgeta Andrei, were landlord and tenant respectively of the house next door, 52 Abingdon Grove. They argued before the magistrates court that the noise coming from the nursery amounted to a statutory nuisance under section 82 of the 1990 Act because it was prejudicial to health or a nuisance. If satisfied that the alleged nuisance exists, the court shall order the defendant to abate the nuisance and/or prohibit its recurrence and can impose a fine.
Following a six-day trial, the judge rejected the evidence of witnesses called by the prosecutors, concluding that the level of noise emanating from no 54 fell short of the threshold necessary to be capable of amounting to nuisance. The prosecutors appealed by way of case stated.
The central question for the judge was whether the noise from the nursery amounted to a private nuisance by an application of common law principles, as outlined in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4. There must be material interference with the use of the claimant’s land, assessed objectively, and even where the defendant’s activity interferes with the claimant’s ordinary use of its land there will be no liability where the defendant’s activity is no more than the ordinary use of its own land.
The Administrative Court was satisfied that the judge had correctly identified the test and properly applied it in concluding that the threshold had not been met. An environmental health officer gave evidence of noise recordings that were faint, low level and muffled. Noise experts agreed that the levels of transmissions were relatively low.
There was nothing about the physical structure of no 52 that meant that occupiers were more likely to be exposed to an actionable interference than would be usual. The judge was entitled to conclude that the prosecutors were not independent, that they had exaggerated their responses to fit their case and that their evidence was inconsistent with the objective data.
Louise Clark is a property law consultant and mediator
