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Conveyancers will note the court’s comment that the claimant’s predicament was a consequence of their decision to buy a house in an area where motor sports had become an established activity. Some may even wish to review the way in which they report to clients in the light of the court’s comment that this was, or should have been, apparent to the claimant and their professional advisors.
Interestingly, the court also dealt briefly with the issue of whether it is possible to acquire a prescriptive right to make a noise between certain times of the day or on a limited number of occasions in the year. It did not actually decide the point, but its views will interest practitioners.
Lewison LJ cited Collins v Slade (1874) 23 WR 199 as an example of a right of way exercisable in daylight hours. Consequently, he had no doubt that the law does recognise easements that are exercisable between certain times of day. In addition, it has long been possible to establish a customary right to do something on land at certain times in the year; for example, to dance round a maypole or to play cricket on Sundays. Therefore, it must also be possible to create easements that are exercisable only at certain times of the year.
However, the court did not decide whether a right to make a noise can constitute a legal easement. It noted that there are no reported cases in which an easement to transmit sound waves has been acquired by prescription, but that the courts have heard cases in which the point has arisen.
In Dennis v Ministry of Defence [2003] EWHC 793 (QB), the MoD’s claim to a prescriptive right to fly noisy fighter jets was unsuccessful partly because the noise patterns and levels had been too inconsistent to establish a prescriptive easement.
By contrast, in Re the State Electricity Commission of Victoria & Joshua’s Contract [1939] VR 121 an Australian court upheld a claim to amend a document to include an easement to transmit noise arising from the proper use and operation of a sub-station.
The authorities prompted Lewison LJ to agree that it might be possible to draft provisions that would enable one of the parties to a document to transmit noise. However, he also suggested that it might be more difficult to establish a prescriptive right to make a noise simply because the history of the noise made in the past will define the permissible noise levels in the future – and this may be difficult to establish.
This means that the status of a right to make a noise remains uncertain. However, the court did not strike it from the list of rights that could potentially constitute easements. Consequently, the issue is liable to be raised again.
Allyson Colby is a property law consultant