Commercial or industrial use of land can often cause an impact on adjoining land as a result of issues such as noise, light and odours. Commercial use of land can be at odds with adjoining or nearby residential development. Commercial operators can be concerned about potential complaints of nuisance that may have a material impact on their ability to operate freely.

What is a nuisance?

Private Nuisance

A private nuisance is usually caused by a person (which could be an individual or company) doing something on their own land, which they may be lawfully entitled to do, but which becomes a nuisance when it damages their neighbour’s land or which unreasonably interferes with their use of it. A good example would be allowing tree roots to damage a neighbour’s property.

Statutory Nuisance

Although it is also possible to pursue a claim for public nuisance where the nuisance affects a neighbourhood, in practice public nuisance proceedings are rarely taken by private individuals because the statutory nuisance regime in the Environmental Protection Act 1990 imposes on Councils the duty to investigate a complaint of nuisance and take abatement action if a nuisance is found to exist. Section 79 of the EPA lists categories of matters that can amount to a statutory nuisance, and include;

  • Physical state of any premises (“premises” includes land and most vessels.)
  • Smoke from premises
  • Fumes or gases (from private dwellings).
  • Dust, steam, smell or other effluvia from industrial, trade or business premises
  • Any accumulation or deposit
  • Keeping of animals
  • Insects from industrial, trade and business premises
  • Artificial light from premises
  • Noise from premises (including vibration)
  • Noise from a vehicle, machinery or equipment in the street

In most cases, the statutory nuisance must be (or likely to be) either a nuisance or prejudicial to health.

The one common element between private and public nuisance is that there is a nuisance.

Can you obtain the right to cause a nuisance over a long period of time?

The Supreme Court considered whether it was possible to acquire a right to commit what would otherwise be a nuisance by noise over neighbouring land through long use in Lawrence v Fen Tigers [2014] UKSC 1. Briefly, the claimants’ house was in a rural location in Suffolk but within approximately half a mile from a stadium that regularly hosted motor racing. The claimants brought a claim in nuisance arguing, first, that the fact that they had planning permission prevented a successful nuisance claim and, second, that their long use of the track meant that they had the right to cause a noise.

The Supreme Court found that it was possible to have acquired the right to cause what would otherwise amount to a nuisance through long use over more than 20 years. The precise extent of the right will be highly fact-sensitive and will often depend not only on the amount and frequency of the noise emitted but also on other factors including the character of the neighbourhood and the principle of “give and take”. In this case, the claim failed on the evidence because the stadium owners could not demonstrates that that their activities had amounted throughout the 20-year period to a nuisance.

The Court also concluded that a planning permission for a particular use cannot be a defence to an allegation of nuisance.

What does this mean for commercial operators?

There can be a conflict between an existing commercial use of land and existing or proposed residential occupation of land. For example, a business that creates noise, such as an industrial plant or a live music venue, would have cause for concern if there was to be residential development close by. Where that business is long established, the decision now opens the possibility of a commercial operator being able to apply to register an easement to transmit noise (or sound waves as the Court described it) over the adjacent site so as to prevent future complaints. A residential purchaser would be subject to the right and would have to accept the noise.

Conclusion

The ability to continue creating noise as part of a business use despite neighbouring land being developed for residential use can be very useful. For developers and residential purchasers alike, it should not be assumed that an existing noisy or disruptive business can be controlled.

Richard Bagwell is a partner in our disputes resolution team who specialises in property. If you would like to discuss the issues raised in this article or any other property disputes matter please do get in touch by telephone 01392 210700 or email drx@stephens-scown.co.uk