Nuisance – Private nuisance – Noise – Claimant seeking damages from defendant owner of adjoining business premises alleging noise nuisance – Whether emissions of noise and odours from mechanical plant in defendant’s property unreasonably interfering with use and enjoyment of claimant’s property – Claim dismissed
The claimant owned a property in High Street, Bourton-on-the-Water, Gloucestershire, and the defendant owned an adjoining property. The boundaries of the two properties adjoined at the back but were separated by an estate agency on their High Street frontage. The claimant acquired the property in January 1996 as part of a portfolio of property-based businesses.
The property had been used as “The Living Green Centre” to demonstrate a sustainable lifestyle. However, in 2015 the claimant obtained planning permission for a change of use so that the property could be let as holiday premises suitable for disabled persons. The house was adapted to provide four bedrooms.
The defendant acquired the adjoining property in October 2006 when there was a tea room, café and fish and chip takeaway in the main building and a newsagent in smaller adjacent premises.
In 2016, the defendant was granted planning permission to expand the restaurant and food business. Works were carried out to install air intake and extraction fans and flues, air conditioning units and a detached refrigeration unit (the mechanical plant). The business commenced in March 2018 but closed in April 2020 as a result of the coronavirus pandemic and never reopened.
The claimant brought a claim for damages based on private nuisance, alleging that between March 2018 and April 2020 the emissions of noise and odours from the mechanical plant were such as to interfere unreasonably with the use and enjoyment of her property. Consequently, she had been unable to market the property as a holiday let. In November 2018, she let the property to her godson under an assured shorthold tenancy.
Held: The claim was dismissed.
(1) A nuisance was an action (or sometimes a failure to act) on the part of a defendant, which was not otherwise authorised, and which caused an interference with the claimant’s reasonable enjoyment of his land. It was to be assessed on an objective basis: Lawrence and another v Coventry (t/a RDC Promotions) and others [2014] UKSC 13; [2014] 1 EGLR 147; [2014] EGILR 57 applied.
The concept of reasonable user extended beyond consideration of the user’s activities isolated in the enjoyment of his own property. It was also about what the neighbour might reasonably be expected to put up with. The broad unifying principle was reasonableness between neighbours. The necessity of the defendant’s acts, which provided him with a defence despite the loss of amenity of the claimant’s land, did not mean that the land would be incapable of occupation without the acts being done at all. Instead, necessity in that context drew its meaning from the common and ordinary use and occupation of land. An assessment of the locality was all important. The court would approach the question of what the neighbour might reasonably be expected to put up with by applying the standards of the average person: Fearn and others v Board of Trustees of Tate Gallery [2020] EWCA Civ 104 [2020] EGLR 14 applied.
(2) Assessment of the locality, as a necessary first step in approaching the question of liability, was not to be approached in the abstract but by reference to an assessment of the locality which informed the court’s decision as to the degree of protection to be given to the claimant’s use and enjoyment of her property applying the principle of neighbourly give and take.
On the evidence, sitting within the Cotswolds area of natural beauty, the location of the property might be described as a tourist trap, receiving up to 10,000 visitors each day, with all the noise and activity that that brought, rather than an area of tranquillity as described by the claimant.
The level of noise generated by the mechanical plant was informed by the expert evidence whereas the level of smells created by it was purely an issue of fact. On the court’s assessment of the factual and expert evidence, the defendant’s evidence in relation to noise levels was more reliable and was to be preferred.
The expert evidence on the issue of noise was useful in gauging whether or not the claimant’s complaints were justified, but it was the evidence of the witnesses of fact which ultimately determined whether the claim was sound.
(3) In deciding whether or not the noise and smell amounted to a nuisance, it was important to note that the claim was brought only by the claimant as a non-occupying owner. It followed that, where the claimant was not living at the property in 2018 and had no intention of enjoying personally the amenities it offered as a nuisance-free residence, the court’s focus had to be upon the alleged interference with her use of the property as a holiday let and her enjoyment of the rental income from such letting.
The question was whether the defendant could be said to have unduly interfered with the claimant’s enjoyment of her property when she was able to let the property as a holiday home to tenants who were prepared to tolerate a degree of discomfort and inconvenience, even though the noise and smells would have been incompatible with her marketing it as an eco-friendly holiday let offering the particular amenity of a tranquil, fresh-air garden.
(4) The degree of elasticity introduced by notions of “give and take”, “live and let live” and “reasonableness between neighbours” meant that there would inevitably be some element of doubt in any decision as to what a neighbour should have to put up with. However, that decision did not turn on some overriding and free-ranging assessment by the court of the respective reasonableness of each party in the light of all the facts and circumstances, but instead represented in the round the law’s assessment of what was and was not unreasonable conduct sufficient to give rise to a legal remedy. The claimant had failed to establish the nuisance alleged against the defendant: Southwark London Borough Council v Mills [1999] 3 EGLR 35 considered.
In the light of the character of the locality and the claimant’s ability to let her property under the assured shorthold tenancy, the defendant did not during the nuisance period violate the claimant’s ownership rights in a way that supported her claim.
Gordon Wignall (instructed by Hodge Jones & Allen LLP) appeared for the claimant; Sara Jabbari (instructed by Christopher Davidson Solicitors LLP of Cheltenham) appeared for the defendant.
Eileen O’Grady, barrister
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