During the summer break some were faced with the question of what to order with their fish and chips. The High Court in Bristol had to consider whether fish and chips were being served with a side order of private nuisance in the Cotswolds. The case of Diana Effie Elliott Ray v Windrush Riverside Properties Limited  EWHC 2210 (TCC) is an interesting case study of the law concerning private nuisance.
The Claimant, Mrs Ray, was the owner of a property in Bourton-on-the Water referred to in the judgment as “Kevinscot”. The Defendant, “Windrush”, was the owner of an adjoining property, “St Kevins”.
Mrs Ray did not live at Kevinscot at any times material to the proceedings. From the early 2000s until 2015 Kevinscot had been used as The Living Green Centre, a sustainable lifestyle demonstration open to day visitors. In 2015 Mrs Ray obtained planning permission for a change of use at Kevinscot so that it could be let as holiday premises which would be suitable for occupation by disabled people. The house was adapted to provide four bedrooms.
Windrush acquired ownership of St Kevins in October 2006. At that time the property was occupied by two tenants. One of them operated a tea room and café as well as a fish and chip shop tale away from the main building and the other ran a newsagent from the smaller adjacent premises.
In 2016, Windrush’s associated company, De La Haye Restaurants Limited (“DLHR”) took over the food outlet business known as the ‘Windrush Restaurant’. In July 2017, following the departure of the second tenant and the closure of the newsagents, Windrush obtained on appeal permission for a change of use for a hot food takeaway in place of the newsagent.
Building works at St Kevins were then undertaken to enable the part previously run as a newsagent to operate as a dedicated fish and chip takeaway with the rest of the premises being run as the enlarged Windrush Restaurant. The works extended to the installation of air intake and extraction fans and flues, air conditioning units and a detached refrigeration unit at St Kevins (“the Mechanical Plant”).
Both the restaurant and takeaway closed for business in late March 2020 as a result of the coronavirus pandemic and did not reopen. In October 2019, Windrush agreed to sell St Kevins to the pub chain Fuller, Smith & Turner PLC (“Fullers”).
The pleaded positions
Mrs Ray alleged that during the period of operation of the expanded food business, between March 2018 and April 2020 exclusive, the emissions of noise and odours from the Mechanical Plant were such as to interfere unreasonably with the use and enjoyment of Kevinscot. She argued that, as a consequence, she was unable to market Kevinscot as a holiday let and therefore removed it from the letting market. However, in November 2018, Mrs Ray was able to let Kevinscot to a member of her family and her godson under an assured shorthold tenancy at a below market rent.
Mrs Ray sought:
- A prohibitive injunction to restrain Windrush, for so long as it remained the owner of the property, from using St Kevins in such a way that caused any unreasonable interference with the use and occupation of Kevinscot;
- A mandatory order for the removal of the Mechanical Plant;
- A declaration allowing her to enter St Kevins to remove it;
- Damages for nuisance including damages in the sum of £41,144.14 and continuing on a monthly basis;
- Interest; and
Windrush accepted that some noise and odour emanated from the premises but denied that this caused any undue interference with the activities of others in the vicinity of the premises or unreasonably interfered with Mrs Ray’s enjoyment of Kevinscot.
Shortly before trial Windrush lodged a general form of undertaking to the Court promising (i) not to manage, use or let St Kevins in such a way that it caused an unreasonable interference with the use and occupation of the owners or tenants of Kevinscot and (ii) not to use or allow the use by any tenant or occupant of the Defendant, the Mechanical Plant. A third limb was later added promising that if the proposed sale did not complete then Windrush would remove the Mechanical Plant prior to any future sale to any other prospective purchaser.
The issues for the Court to decide
HHJ Russen QC, sitting as a Judge of the High Court, stated that the following issues fell to be addressed:
- The character of the locality of Kevinscot and St Kevins.
- The level of noise and/or odour omissions caused by the Mechanical Plant during the nuisance period.
- Whether and to what extent the noise and/or odour interfered with Mrs Ray’s reasonable enjoyment of Kevinscot during the nuisance period.
- If there was an interference amounting to a nuisance as alleged, whether such interference caused the losses pleaded and whether Mrs Ray should be granted the injunctive relief sought.
The character of the locality
In respect of the first issue Mrs Ray sought to portray the nature and character of the area as one of tranquillity. The Defendant denied such a characterisation and described the locality as a popular and bustling tourist destination. HHJ Russen QC preferred the Defendant’s characterisation and found that the place might be described pejoratively as a tourist trap.
The level of noise and/or odour omissions
In respect of noise levels, the second issue was resolved on the evidence. Mrs Ray relied on an expert report in respect of the acoustic and noise levels, “the Sharps Report”. Windrush relied on noise measurements recorded by acoustic experts during a sound survey and contained in a report referred to as the “NC Report”. The judge preferred the noise measurements in the NC Report. Section 11 of BS4142 provides that it is essential to place the sound being measured in its context but the Sharps Report was based on readings taken early in the morning and late at night when the Mechanical Plant was off. No request was made of DLHR to switch off the Mechanical Plant during working hours so that the daytime background sound level, including from other activities, could be measured. In contrast, the NC report complied with the reporting requirements of section 12 of BS4142.
In relation to the odours, the judge accepted the evidence of the tenant that the Mechanical Plant created strong odours of cooking which could linger in the garden and during the summer months sometimes enter the open doors and windows of the house.
Did the noise and/or odour constitute a nuisance?
HHJ Russen QC noted that it was important that the claim was brought only by Mrs Ray as a non-occupying owner. In such circumstances the Court’s focus was upon the alleged interference with her use of the property as a holiday let and her enjoyment of the rental income from such letting. Mrs Ray’s claim was presented in terms of the letting to the tenant being an act of mitigation of a loss resulting from her inability to market Kevinscot as a holiday let.
HHJ Russen QC posed the following question, arising from the case of Lawrence v Fen Tigers  UKSC 13;  AC 822, “can Windrush be said to have unduly interfered with Mrs Ray’s enjoyment of Kevinscot when she was able to let the property as a holiday home to tenants who were prepared to tolerate a degree of discomfort and inconvenience even though the noise and smells would have been incompatible with her marketing it as an eco-friendly holiday let offering the particular amenity of a tranquil, fresh-air garden?”
The judge stated that he had not found it easy to reach a decision as to whether Mrs Ray met the test for a private nuisance identified in Lawrence. He noted that phrases in the case law such as “give and take” and “reasonableness between neighbours” introduce a degree of elasticity that perhaps means that there will inevitably be some element of doubt in any decision as to what a neighbour should have to put up with.
HHJ Russen QC found that Mrs Ray had failed to establish the nuisance alleged and based that conclusion on two principal points.
The first point was that the judge accepted that it was unreasonable for Mrs Ray to expect that a tranquil eco-retreat could exist in that location free from any impact of DLHR’s commercial operations. The judge concluded that the standards Mrs Ray had created for her holiday let business meant that the nuisance had been presented from a position of “delicacy or fastidiousness”.
The second point was that Kevinscot was occupied for 16 of the 21 months in question as a second home by the tenant and his family. Such individuals were to be taken as average occupiers for the purposes of assessing whether or not there was a material interference with the standard of comfort ordinarily to be enjoyed by the occupier of the neighbouring property. The tenant’s evidence was that he and his family could live and work around the noise and smell which the judge felt encapsulated the concept of “live and let live”.
HHJ Russen QC went on to consider the relief sought for completeness. The judge’s analysis is helpful in indicating the approach to be taken by the Court to special damages in the circumstances.
The judgment demonstrates the acute attention to detail required when considering a claim in private nuisance. The judgment rested at every stage on the underlying facts – the nature of the locality, the extent of the noise and odours, the occupation by the tenant and the specific relief sought.
The case also demonstrates the difficulty that arises as a result of the case law using phrases such as “give and take”, “live and let live” and “reasonableness between neighbours”. HHJ Russen QC candidly noted that such phrases make it difficult to reach a decision as to whether a private nuisance has been made out.
In light of the above, the facts of the case must be considered objectively and in detail when contemplating whether a prospective claimant has reasonable prospects of making out a claim in private nuisance.
Article by Kort Egan – first published by Practical Law