Posted: Wednesday, 4 May 2016 @ 14:52
Commercial landowners should always take care to avoid claims for noise nuisance where any activity on their premises is likely to cause nuisance to neighbours.
A recent case has highlighted the issues. In 2006 Mr and Mrs Peires bought a 6 bedroom mansion in Denham, Buckinghamshire. The property borders on Denham Aerodrome. Flying activity has been carried on there since the early 1900's, and the Defendant, Bickerton's Aerodromes Ltd, has been using the site since the 1930's.
Mr and Mrs Peires accepted the general use of the aerodrome. What caused the problem was that it was used for the training of helicopter pilots on a particular piece of land ideal for such training near to the boundary with their property. When this took place the noise was unbearable and it was not possible for Mr and Mrs Peires to use their garden. They had complained on a regular basis and matters came to a head when a proposed sale to Vernon Kay and Tess Daly fell through because of the helicopter noise.
The Defendant claimed that the aerodrome had been used for helicopter flight since the 1960's, but the Judge pointed out that helicopters today were much bigger and more powerful, and hence noisier.
Mr and Mrs Peires claimed that the use for helicopter training near their boundary was excessive and unreasonable and amounted to a private nuisance. The Defendant disagreed and claimed the use was similar to the other activities on the aerodrome.
The Judge found in favour of Mr and Mrs Peires and decided that compensation was not an adequate award in the circumstances, and granted them an injunction.
The Defendant's further argument that they had acquired a right by prescription also failed. To establish such a right they would have to bring evidence that they had carried out the activity and in doing so had caused a nuisance for 20 years, and that there had been no objections during that period. Unfortunately the Defendant had failed to present any clear evidence to the court to support it's case. Mrs Peires was able to give compelling evidence that she had protested, and also that there had been regular complaints since the 1970s.
In cases such as these where a nuisance had been proved, the Supreme Court stated in 2014 that courts should adopt a flexible approach when consuidering what remedy to impose, namely an injunction or alternatively compensation. It should consider the competing interests of neighbouring landowners where they were otherwise carrying out lawful activity. If an injunction was a remedy out of proportion to the injury suffered than compensation was the right option. But in this particular case the nuisance was so bad that the Judge awarded Mr and Mrs Peires an injunction.
It should also be noted that a claim would also be possible for any reduction in land or property value due to the nuisance.
So what should a landowner do if they are carrying out an activity on their land which is likely to cause nuisance to neighbours?
- Keep a log of all activity likely to cause nuisance, recording the nature, date, time and duration of each activity.
- Take regular noise readings along the boundary during the activities and record them.
- Log all complaints and engage with neighbours in response to those complaints. Keep records of all contact with the neighbours.
- Seek expert advice on limiting noise nuisance to neighbouring properties and carry out all reasonable and proportionate measures to reduce the nuisance.
This may not prevent a successful claim by neighbours, but it will put landowners in a stronger position to avoid an injunction preventing the activity altogether, or permitting it but with stringent conditions attached.
For free advice on this topic please call us on 0845 003 5639.
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