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Keep the noise down—dealing with nuisance complaints 31/03/2016 Environment analysis: Michele Freyne, partner (non-member) and head of real estate litigation and Joe Walker, solicitor-advocate at Howard Kennedy LLP, present the pertinent facts stemming from the outcome of a noise control dispute between two landowners in Peires v Bickerton’s Aerodromes Ltd.
Original news Peires v Bickerton’s Aerodromes Ltd [2016] EWHC 560 (Ch), [2016] All ER (D) 160 (Mar) The Chancery Division allowed the claimant’s claim in nuisance, where helicopter training activities taking place on the defendant’s aerodrome had caused unreasonable and excessive noise at the claimant’s property. The appropriate remedy was an injunction that would sanction the activity but limit it to a reasonable level.
What are the facts of this case? The claimant owned a large detached house with substantial grounds in Uxbridge. The claimant’s property adjoined an aerodrome which was owned and operated by the defendant. A field separated the claimant’s property and the aerodrome. A dispute arose over a helicopter training operation which involved the taking off and landing of helicopters on a sloped piece of ground by the aerodrome boundary. The claimant claimed that the noise caused by the helicopter training was extremely loud, unpredictable, and continued over excessive periods. The claimant asserted that the noise was an actionable nuisance, being an undue interference with the claimant’s comfortable and convenient enjoyment of her property. The defendant denied that the noise was either unreasonable or excessive.
What are the key parts of the judgment? Judge Peter Smith J found that the noise caused by the helicopter operation was an actionable nuisance. During the judge’s site inspection, he found the helicopter noise when in the claimant’s garden was ‘excruciating’. He preferred the evidence of the claimant and her expert on the frequency of the helicopter training operation. The judge was critical of the defendant’s failure to take any steps to minimise the noise despite numerous complaints. He was not persuaded that the defendant could not relocate the helicopter training operation to another area within the aerodrome. The judge dismissed the claim that the defendant had acquired the right to make a noise nuisance by prescription. He held objections had been lodged to the helicopter training operation since the 1970s so no easement could be established, as it was established by force. The judge held there was no clear evidence identifying the level of noise that would fall within such an easement. The defendant did not carry out the helicopter training operation it was carried out by the defendant’s licensees. The judge found that the defendant could not escape liability as it had sanctioned the helicopter training operation for payment. The defendant’s claims to statutory defences under the Civil Aviation Act 1982 were also rejected.
What remedies were appropriate and why? The usual remedies for nuisance are either an injunction or damages. The judge held damages were not an adequate remedy as the claimant’s property would still be blighted by noise, the judge ordered an injunction but not a total prohibition of helicopter training, not least because the claimant had indicated a willingness to allow two periods of 15 minutes fixed per week. Interestingly, this was a greater frequency than the defendant complained of. The injunction limited the helicopter training in time and required the parties to mark out the location where the helicopter training was to take place.
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The judge held that had he awarded damages he would award £583,000, based upon the diminution in value of the claimant’s property.
How does this sit with previous judgments on noise nuisance? Until recently, a claimant would only be awarded damages in lieu of an injunction in limited circumstances as set out in Shelfer v City of London Electric Lighting [1895] 1 Ch 287, [1891-4] All ER Rep 838. This was considered again by the Supreme Court in Fen Tigers (Coventry v Lawrence [2014] UKSC 13, [2014] All ER (D) 245 (Feb)). The Supreme Court found that the Shelfer test should not fetter the exercise of the court’s discretion, but confirmed that the prima facie position is that an injunction should be granted for noise nuisance prevention. This decision continues the prima facie position in respect of remedies as set out in Fen Tigers. In Fen Tigers, the court held that a noise nuisance can arise by way of prescription—the judge emphasised the large evidential difficulties in establishing a prescription and held that had not been established in this case.
What can we take from this judgment? An overarching consideration in this case was the need for some ‘give and take’ between neighbouring occupiers of land and the right to use their respective properties as they wish unless the use interferes with adjoining occupiers use. The judge found it most unfortunate that the dispute had not been resolved before trial. Each party in a dispute over noise nuisance must carefully consider both their position and that of the other party at an early stage and attempt to reach a practical agreement. If the creator of the alleged nuisance is unwilling to stop the use, they must at the very least, give serious consideration to what steps would minimise the impact of the activity upon the other party’s use and enjoyment of their land. Similarly, those who consider they are suffering from nuisance need to ask themselves to what extent they are able to accommodate the activity in question, as a blanket prohibition may not be reasonable. Interviewed by Emily Jones. This article was first published on Lexis®PSL Environment on 31 March 2015. Click for a free trial of Lexis®PSL
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