The old adage that there are two sides to every story rings particularly true in the case of noise disputes. One man's party is another man's nightmare; one neighbour's new investment property is another's noise hell; one party's business is another party's lost sleep.
On the one hand, everyone has the right to full and peaceful use of their property. On the other hand, everyone is entitled to enjoy their property and to carry out such works or activities as they need to do. Consequently there will be times when making noise is unavoidable, particularly on redevelopment sites or where the nature of an occupier's business is, by its very nature, noisy. The following tips should assist both sides to understand their rights.
What legal rights exist to curtail excessive noise?
If you allow excessive noise to emanate from your land, you run the risk of being sued under the law of nuisance. Nuisance claims can be divided into three categories: private nuisance, public nuisance and statutory nuisance. In summary:
- Private nuisance arises where someone does something on their land that unlawfully interferes with someone else's enjoyment of their own land, or causes damage to their property. This covers a wide range of activities, from redevelopment and work related activities, to playing loud music and barking dogs. For example, in the recent case of Kartikeya Solutions Ltd (t/a Unique Children's Home) v Secretary of State for Communities and Local Government , the Court found that noise and other disturbances were sufficient to refuse planning permission for the continued use of a property as a children's home. Even Madonna was once the subject of a claim brought by a neighbour in Manhattan, complaining of "loud music and dancing" emanating from Madonna's property.
- Public and statutory nuisance can arise where someone does something on their land that unlawfully interferes with the public's rights at large. The Environmental Protection Act 1990 sets out various provisions in respect of this and criminal sanctions can apply. For example, a public or statutory nuisance may arise where a party operates a factory throughout the night in a residential area, causing noise and disturbance to local residents.
What noise is sufficiently excessive to cause a nuisance?
This is a subjective question and the levels of noise that are deemed to be excessive or harmful will vary. There is no absolute legal right to peace and quiet, but the following factors will be important when considering if a nuisance is being caused:
- The volume of the noise, as measured from the claimant's land.
- The hour of day when the noise is emitted. Noise emitted in working hours is less likely to constitute a nuisance than noise in the middle of the night.
- The location of the property, as noted in the case of Struges v Bridgman (1879), where the judge said, somewhat dismissively: "What would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey".
- Whether the defendant was being reasonable. The Court will recognise that some noise pollution is inevitable in urban environments, or in certain circumstances, for example where a defendant needed to effect repairs to its premises.
- Whether the defendant is making the noise deliberately, in order to annoy or irritate the claimant. Clearly if this is the case, it is more likely to be held to be a nuisance.
What to do?
The priority of most potential claimants will be to stop the noise being made as soon as possible. An injunction may be sought for this at Court, but Local Councils also have a duty to prevent excessive noise that amounts to a statutory nuisance. If a noisy neighbour does not respond to a polite request, the cheapest and most effective way to deal with the problem may be to call the Local Council to complain.
However, Councils will not always be willing to step in, so a good understanding of your private rights and remedies will be important from the outset. If the noise is not an isolated incident, start to keep a noise diary of all occurrences, as explained below.
Injunctions will only be granted at the Court's discretion, so it will be important to take early legal advice and, if appropriate, to ensure that an application is made at Court without delay. When deciding whether to grant an injunction, the Court will also consider all of the facts of the case, including whether the noise maker can be compensated in damages, if the noise maker later proves at a full trial that it acted lawfully. This may result in an applicant being obliged to give an undertaking to pay damages in these circumstances, as a precondition to obtaining an injunction. However, where an applicant proves that it is suffering a clear infringement to its legal rights, and that damages will not suffice to remedy this, an injunction may be ordered.
Noise abatement notices
If the noise is sufficiently serious to constitute a statutory nuisance, a local authority may serve an abatement notice on the perpetrator, to oblige him or her to stop making the noise within a specified period.
In practice, as noise can usually be stopped quickly, some notices will oblige the addressee to stop the noise immediately. Failure to comply with the notice may lead to criminal sanctions, but the recipient will have an opportunity to appeal after it has been served.
What damages can be recovered?
In cases of noise related nuisance, there is unlikely to be any physical damage to the afflicted property. Any damages awarded will therefore be based on the Court's calculation of the claimant's loss of enjoyment of their land, which can be difficult to quantify. One method that has been used was to review the diminution in the value of the land because of the noise. However, the Court will take all the facts into account when making its decision.
If you are considering taking action in respect of noise, we recommend that you start to keep a noise diary to evidence your claim.
Equally, if you are likely to face a claim, keeping a diary can be very helpful to evidence your "reasonableness". When completing diaries such as these, we would recommend that you include details of:
- how loud the noise is (using a noise meter if possible);
- the type of noise;
- the likely cause of the noise;
- how often it occurs and the time it lasts for; and
- the time of day when the noise is emitted.
Making noise for a temporary period
In circumstances where you cannot avoid making noise, you should take steps to ensure that you are acting reasonably at all times. For example, if you are redeveloping a site in an urban environment, it would be advisable to restrict noise making activities to ordinary working hours. You should also comply with any guidance/restrictions issued by the local authority, as part of the planning permission process. Working with affected parties should reduce the chances of a claim being made, so keeping them informed of timescales and progress can assist.
As noted above, there is no legal right to enjoy peace and quiet. However, there are circumstances where the law will consider noise to be excessive. Potential claimants and defendants should therefore review whether they consider noise being made to be lawful or unlawful, applying the factors set out above. A party that is seeking to carry out noisy works or a noisy activity from a property should seek advice before starting.
If the matter becomes contentious, we recommend seeking early advice to ensure that your position is protected.