Michelmores LLP
Posted on 15 Nov 2021
By Michelmores LLP

Private nuisance: A noisy affair

Nuisance in law can be subdivided into two categories: private nuisance and public nuisance. This article will highlight the private nuisance claim that was recently considered by the High Court in Jones v Ministry of Defence [2021]. The case concerned a claim by Mr and Mrs Jones ("claimants") for compensation arising out of an alleged increase of flight activity and noise by the nearby aircraft base, RAF Mona.

Legal basis of private nuisance

Private nuisance is defined as the lawful actions, carried out by a landowner on their own land, that subsequently extends to another's land, affecting the neighbouring landowner's personal use or enjoyment of their land.

There are three requirements for establishing a private nuisance: the act must be substantial or unreasonable; it can arise by a single incident, or a continuous state of affairs; and it can either be a result of inaction by the landowner or a positive act.

In Jones, the claimants made a claim for damages for nuisance for unlawful interference with the enjoyment of their property due to noise that came from the nearby airbase.

Unreasonable interference with property rights arises where the act by the neighbouring landowner causes loss of enjoyment of the claimant's property or proprietary interest. For example, loss of enjoyment of a property due to the noise nuisance caused by an adjoining dog kennels. The damages awarded are usually calculated on the basis of the decrease in value of the claimant's property as a result of the nuisance.  As the aim of the proceedings is to stop that nuisance continuing, the loss will be temporary and can prove difficult to quantify.

The case

Mr and Mrs Jones owned a plot of land on Anglesey, which they purchased in 2003 with the intention to develop a holiday and leisure park. The Royal Air Force (RAF) had occupied a nearby air base, RAF Mona, since circa 1951.

Throughout the years following the purchase, Mr and Mrs Jones rented out a number of the buildings on the land to commercial tenants; one commercial letting was for the purpose of a nursery. From 2007 onwards the number of commercial lettings declined and the claimants' business began to suffer.

In 2010, Mr and Mrs Jones made a complaint regarding the frequency and noise of overhead aircraft. They alleged it affected the children attending the nursery. On receipt of the complaint, RAF bases, RAF Mona and RAF Valley instructed their pilots to avoid flying over the nursery.

Despite the pilots' instructions to avoid flyovers, Mr and Mrs Jones complained persistently and eventually commenced proceedings. They alleged there had been an increase in the noise and flight activity surrounding RAF Mona, and on this basis, their land had been blighted since 2007. The claimants sought a declaration that defined where the aircraft out of RAF Mona could fly, or in the alternative, compensation.

Decision

Judge Sephton found in favour of the Ministry of Defence. He held that there was no increase in use of the RAF base or change in the flight path after 2007 and therefore there was no increase in activity over the claimant's land since their purchase in 2003. The pilots of RAF Mona generally avoided flyovers of the nursery, with around less than 5% of flights overflying the land.

The Judge held that RAF activity and aircraft noise had been part of the surrounding environment of the land for decades and was a reasonable and lawful use of the RAF base. There was a significant public interest in this use for the defence of the realm and training pilots from allied nations and that activity had been conducted long before the claimants purchased the land. Judge Sephton said at paragraph 62:

 

I am required to form a judgment whether the noise created by the defendant's activities constitutes a nuisance; that is an issue of fact and judgment or fact and degree. It would be artificial and unrealistic to exclude a feature of the locality that has been present for many years. I am fortified in my conclusion that extremely loud noise is capable of forming part of the locality by the decision to similar effect by Buckley J in Gillingham.

 

The Ministry of Defence had taken all reasonable steps to avoid disturbing the claimants and the noise was kept to the bare minimum.  On this basis the Judge found that the claimants had not established a private nuisance.

The Judge also concluded that the claimant's change in the use of the land had resulted in the land being susceptible to a nuisance by way of noise.

Conclusion

This case proves yet again that in establishing a private nuisance the surrounding environment is of critical importance. If the party creating the alleged nuisance can show that they have acted in this way for many years or where the act of nuisance is simply a characteristic of the environment, it is unlikely that a nuisance will be established.

The maxim in Sturges v Bridgman [1879] still applies today – "What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey."