Neighbourly matters: noise nuisance
And so, we wait
4 December 2015
Vivien King considers a recent noise nuisance case
When looking at neighbourly matters e.g. rights to light, party walls and the widest of legal topics, nuisance and trespass, while these topics are newsworthy, many appear parked in legal sidelines.
On rights to light, we await the outcome of the Law Commission's final report and draft Bill published on 4 December 2014. Developers have for years looked for a change in the law such as the commissioners propose, but it seems unlikely that Parliamentary time will be found to discuss the Bill.
The dramatic rise in the number of developments, particularly in London, may not be indicative to MPs of a noteworthy problem, but we wait to see.
A court can be asked to stop or prevent a nuisance by granting an injunction
Subterranean development also continues to give rise to complaints but attempts to introduce the Permitted Development (Basements) Bill 2013-14 were thwarted and it failed to complete passage through Parliament. Several London councils expressed concerns over the excavation of large basements falling within the rules surrounding permitted development. This led to the London Assembly calling on Mayor Boris Johnson to include restraints on 'excessive subterranean development' within the 2015 London Plan (published March 2015), although it seems to no effect.
The Party Wall etc. Act 1996 works well in England and Wales but does not apply in Scotland or Northern Ireland. Proposed changes to Scottish property law might change this, but no mention appears in the Land Reform (Scotland) Bill 2015.
A recent decision from the Supreme Court (which at present is the ultimate appeal court for all civil cases across the UK) has effectively changed the law governing whether or not judges will order payment of damages in lieu of granting an injunction in nuisance actions.
Coventry & Others v Lawrence and Another  UKSC 13 concerns nuisance by noise caused to owners of a bungalow by the owners of a neighbouring speedway and motor racing circuit.
Interestingly, the case hit the headlines within the rights to light debate. It is, however, of more general interest and applicable to all nuisances.
A court can be asked to stop or prevent a nuisance by granting an injunction. However, since the passing of Lord Cairns' Act in 1858, the courts have had the power to award damages instead. AL Smith LJ, in his Court of Appeal judgment in Shelfer v City of London Electric Lighting Co  1 Ch 287, expressed concerns about a court effectively sanctioning a party committing a wrongful act by purchasing their neighbour's legal rights (through payment of a sum in damages) against the neighbour's wishes.
He stated a successful claimant should, prima facie, be entitled to an injunction. If that rule should be relaxed, it should be so only if:
- the injury to the plaintiff's legal rights is small
- it is capable of being estimated in money
- it can be adequately compensated by a small money payment
- the case is one which it would be oppressive to the defendant to grant an injunction.
This Shelfer rule was widely applied – even followed "slavishly", according to Lord Sumption in Coventry v Lawrence. Lord Neuberger, in the same case, removed the Shelfer shackles and said the outcome of a case should depend on all the relevant evidence and arguments.
However, Lord Neuberger continued:
"We are at risk of introducing a degree of uncertainty into the law. The nature of the issue, whether to award damages in lieu of an injunction, is such that a degree of uncertainty is inevitable, but that does not alter the fact that it should be kept to a reasonable minimum.
Given that we are changing the practice of the courts, it is inevitable that, in so far as there can be clearer or more precise principles, they will have to be worked out in the way familiar to the common law, namely on a case-by-case basis."
So, guess what? We wait for those cases to be heard.
Vivien King is a consultant to Malcolm Hollis
Related competencies include: Legal
This feature is taken from the RICS Building Surveying Journal (October/November 2015)