Noisy neighbours – a right to cause nuisance
26th April 2012
Disputes between adjacent property owners can arise over many issues, from the most trivial of irritations to those that would cause sleepless nights for all but the most heavy-eyed. One issue that is complained of probably as often as any other though is that of excessive noise.
If the level and/or frequency of noise emanating from a property is such that it interferes with a neighbour’s reasonable enjoyment of their property (and that is an objective test) then the adjoining owner will have an actionable claim in nuisance.
The recent High Court case of Lawrence v Fen Tigers raised a number of important issues in relation to such claims.
The case concerned Ms Lawrence and her partner, who purchased a property near to the Fen Tigers race track where speedway, stock car racing and motor cross events took place. It was Ms Lawrence’s argument that the noise from the stadium was such that it amounted to a legal nuisance.
Ms Lawrence claimed against both the landlords and the tenant of the stadium. However, the judge held that the landlords were not liable for the nuisance because the landlord had neither participated in nor authorised the nuisance. The later finding was based on the terms of the lease, which specifically prohibited the tenant from doing anything which would cause a nuisance.
Landlords should, however, note that claims against them in respect of nuisance caused by the tenant may succeed where the lease permits them to do the specific activity which amounts to the nuisance. Careful drafting of the lease is therefore key to avoiding liability for nuisance caused by the tenant.
Acquired Right to Cause Noise Nuisance?
As an alternative to their contention that the noise did not amount to a nuisance, the tenants argued that if the noise did amount to a nuisance, they had acquired a right to cause noise nuisance as a result of having done so for many years.
Considering the Defendants’ arguments, the Judge held that the noise did amount to a nuisance and that it was not possible to acquire a right to cause noise nuisance because a) the extent of such a right could not be adequately measured or determined, and b) although there were comments in other judgments that suggested such a right could be acquired, there was no reported decision in which it was held that one had been acquired.
This reasoning cannot support a finding that it is impossible to ever acquire a right to cause noise nuisance. It merely suggests that a party seeking to establish that it has acquired such a right will find it very difficult to do so.
The case has now been referred to the Court of Appeal and it will be interesting to see whether this decision is upheld. For now, however, it seems that those causing noise nuisance will not be able to rely on the argument that they should be allowed to continue to do so merely because they have done so for many years previously.
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Solicitor in Civil Litigation Team
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