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Nuisance and noise control:

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Businesses that operate noisy or controversial activities, together with developers, should be made aware of an important Supreme Court judgment on the principles of private nuisance. The case related to a noise nuisance caused by the Respondents' motocross and speedway stadium. The Supreme Court unanimously agreed with the Appellants (who lived near to the stadium) that the Respondents' use of their property was a nuisance.

What is a private nuisance?
A private nuisance is usually caused by a person doing something on their own land, which they are lawfully entitled to do, but which becomes a nuisance when the consequences of their behaviour extends to the land of a neighbour. Whether a particular activity causes a nuisance often depends on an assessment of the area in which the activity concerned is carried out. This will establish whether it is a reasonable use of the land.

Private nuisance is actionable in tort, and a claimant can take civil proceedings against a defendant for either, or both:

  • Damages to compensate for its loss.
  • Injunctive relief to require the defendant to stop a continuing nuisance and to prevent its recurrence.

Why is the Supreme Court judgment important?

The Supreme Court's decision has an important impact because it clarifies that:

  • A right to make a noise nuisance can be established by prescription. While it is relatively straightforward to establish a right to something constant, such as light, it has not been clear whether such a right could be established for something as potentially intermittent as noise. Therefore, this could also apply to (intermittent) vibration, odour and dust. As the Supreme Court acknowledged, there remain problems in establishing such a right, in particular, as to deciding:
  1. when time runs;
  2. what are the usual noise levels that are exceeded; and 
  3. the extent of the right obtained. 

Of course, the noise may not be intermittent, in which case this could prove to be a much more important defence.

  • In some circumstances, it may be a defence that it is only because the claimant has changed the use of, or built on, their land that the defendant's pre-existing activity has become a nuisance. This could prove to be an important defence.
  • The court's discretion is not limited to granting an injunction, rather than damages, except in exceptional circumstances. This may open some nuisance cases, particularly where the activity has planning permission, to being settled by compensation by damages.

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