RICS Property Journal – article on noise

6th November 2014

Jeremy Ferris

First published in September/October 2014. Answer provided by Jeremy Ferris, Furley Page Property Disputes Expert.

QUESTION
My client has run a business cleaning antique radiators by blasting them with lead shot. It is a messy and noisy business but he has operated from a remote farm building for many years without any complaints. A developer has, however, just bought a plot of land near the client's premises and has written to complain about the noise. What is the legal position?

ANSWER

It is a common misconception that a person who buys or moves to land and therefore ‘comes to’ a pre-existing nuisance is barred from bringing a claim against that nuisance.  A recent case involving a long-established speedway track dealt with just such an issue.

Dubbed the ‘Fen Tigers case’ (after the National League speedway team that operated from the track), it involved a circuit that had been located on farmland for more than 30 years before the complaint was brought. The original planning permission – for stock car and banger racing – was renewed on a permanent basis in 1985. A motocross track was constructed in 1992 with the benefit of a personal planning permission and in July 2002 the council issued a permanent permission for motocross events limited to certain days, prescribed hours and noise levels.

In 2006 the appellants moved into a bungalow (built in the 1950s) about 500m from the stadium. In that year they complained to the council and in 2008 they issued proceedings in the High Court for private nuisance against the track owners. The decision of the High Court was appealed to the Court of Appeal and again to the Supreme Court, where it was heard in early 2014.

The court considered the claim under three main headings:

Did the noise amount to a prescriptive right?

The court confirmed that the track owners could claim a prescriptive right in respect of noise nuisance if they could show that the use of the track had been a nuisance for 20 years or more. The evidence was, however, that the first complaints were no more than 16 years ago and therefore the owners could not show the requisite period.

Was it a defence to say that the complainant had come to the nuisance?

The court held that because the complainant was using the property for essentially the same purpose as their predecessors it was no defence for the track owners to say that the claimant had come to the nuisance.

How should the character of the locality be viewed in assessing the nuisance?

The court said the starting point was that the defendant’s activities (in using the track) should be taken into account when assessing the character of the locality. However, such activities could only be considered to the extent that they would not cause a nuisance to the claimant. In short, if the activities cannot be carried out without causing a nuisance they should be disregarded.

Further, it was held that the fact that the track had planning permission did not on its own mean that the activity was lawful because the issue of nuisance is reserved to the court not the planning authority.

Applying those principles, it was held that the claimant should succeed in its claim for nuisance against the speedway track. The only other issue for the court was whether that would mean that the activity at the track should cease altogether or whether the claimant could be adequately compensated by the award of damages. The traditional approach (following a case from 1895) was that damages should only be awarded in place of an injunction if the injury is small and it would be oppressive to grant an injunction.

Here, however, the court heralded a significant change of emphasis in the law. One of the trial judges went so far as to criticise the old law on the basis that it “was devised for a time in which England was much less crowded, when comparatively few people owned property, when conservation was only beginning to be a public issue”. The judges indicated a far greater flexibility and suggested that although an injunction might be the first port of call, awards of damages would likely become far more prevalent in similar cases. Where the use is of public benefit and has planning permission it will be even harder for the claimant to contend they are entitled to an injunction.

Applied to the current facts, there are two main strands of argument. The starting point is to find out how long the alleged nuisance has continued. If we can show that complaints were made 20 years or more ago then a prescriptive right may have accrued.

Second, we need to find out what the developer intends for the land. If (as we assume) a development is proposed then we would say that the developer has come to the nuisance because the intended use for the land to is different from that existing.

Depending on the strength of those two arguments, we may well robustly resist any claim of the developer. If, however, we have no prescriptive right and the developer is just redeveloping an existing plot then we might seek to negotiate rather than embarking on a lengthy legal battle. Assuming that our client has planning consent for the current use and if we are able to demonstrate that our work is of public benefit (for example in employment) it will be hard for the developer to contend it is entitled to an injunction.

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