Lorna Grace Peires v Bickerton’s Aerodromes Ltd  EWHC 560 (Ch)
Mrs Peires complained of noise nuisance due to helicopters performing landing and taking off training exercises at an Aerodrome close to her house and garden. The court had to determine whether the noise was excessive and unreasonable so as constitute a nuisance. The judge also had to decide whether the defendant had acquired a right by long use of 20 years or more (a process called prescription) to carry out the activities. The court then went onto to consider whether an injunction should be granted.
It was held that the defendant was making excessive and unreasonable noise and an injunction was granted in favour of Mrs Peires which limited the helicopter training in question to two fixed day operations of 15 minutes.
The evidence and the findings of a site view by the Judge made clear that when the helicopters were performing these specific exercises on a slope less than 60 metres away, it was almost impossible to use the garden. The Judge found the Aerodrome’s evidence that the frequency and length of the training drills were fewer and shorter than alleged as unreliable. The Claimant had good quality factual and witness evidence, including video evidence.
The Judge determined there were a number of reasons why this noise nuisance could not be permitted by virtue of long use. First, the party in question has to show 20 years continuous use from when the noise starts to be a nuisance and there was not clear evidence of that. Furthermore in this case the activity continued despite strong opposition since at least the 1970s. An easement by long use cannot be acquired if the use is “by force”. It was also difficult to establish the precise extent of the right to cause a noise nuisance. The Judge was keen to stress this decision was not a departure from Lord Neuberger’s ruling in Coventry v Lawrence  UKSC 13 when it was reaffirmed in principle that a right to cause a noise nuisance can be acquired by a prescription.
This case did of course turn on its own facts but was a useful reminder of the importance of reliable factual and expert evidence. In the heat of a dispute, what is reasonable becomes highly subjective to some of the witnesses involved but the courts take an objective and dispassionate approach.
If you are trying to establish a case of noise nuisance by prescription the evidence has to be collated carefully. Has the noise nuisance differed in nature during the time you are trying to establish the prescriptive period? Has there been any objection?
In this case Mrs Pieres could have also attempted to claim damages for loss of value of the property due to the nuisance. It is worth bearing this in mind if acting for a claimant in such a case although the actual evidence of a reduction in value can be difficult to establish.