Noise nuisance: general principles, establishment by prescription and remedies.

The case of Peires v Bickerton’s Aerodrome Ltd [2016]

The case of Peires v Bickerton’s Aerodrome Ltd [2016] EWHC 560 (CH) provides a useful reminder of the principles relating to nuisance: here it was a case of noise nuisance.

It involved a complaint by a Mrs Peires relating to helicopters carrying out a specific training manoeuvre at Denham Aerodrome, which was close to her property. While other aircraft including helicopters took off and landed from the Aerodrome, these more general activities produced an acceptable level of noise of which no complaint was made. However, the noise from the particular exercise in question was alleged to be excessive and unreasonable.

In reviewing the recent case law the court highlighted some general principles;
• A nuisance is generally an action (or sometimes a failure to act) which is not authorised and which causes interference with the claimant’s reasonable enjoyment of his land.
• Whether a particular activity causes a nuisance often depends on an assessment of the locality in which the activity is carried out.
• Liability for nuisance may be kept under control by the principle of reasonable user or “give and take”. Reasonableness must be assessed objectively.
• The character of any locality may not conform to a single homogenous identity, but rather may consist of a varied pattern of uses all of which need to coexist in a modern society. The common law of nuisance is there to provide a residual control (over and above planning and environmental controls) to ensure that new or intensified activities do not lead to conditions which, within that pattern, go beyond what a normal person should be expected to put up with.

Here, after hearing both lay and expert evidence, the court was satisfied that both the level of noise and its frequency were excessive and unreasonable.

Further, an argument from the defence that a right to make a noise nuisance can in certain circumstances be established by prescription also failed. The court accepted that it is possible to establish such a right but specific difficulties often arise in doing so: first, 20 year’s user can only begin when the noise amounts to a nuisance; second, there are difficulties in identifying the extent of the easement obtained by prescription even if the level of noise can be shown to amount to a nuisance of more than 20 years; and third, there could be a problem in deciding how much, if any, more noise could be emitted pursuant to the claimed right than had been emitted during those 20 years. Here, though, that argument failed as 20 year’s user could not be established. Complaints had been made throughout the period and so it could not be said that the user had been “without force”, one of the prerequisites for acquiring a prescriptive right.

It is worth highlighting what remedies the court considered and eventually ordered.

The court, in fact, took a very practical approach. It recognised that an injunction would only succeed if damages are an inadequate remedy. Payment of damages in this instance would have left Mrs Peires with the continued noise about which she had complained and so was not an attractive option. Equally, the court was not minded to order a total prohibition on the activity in question. This was because, in evidence, Mrs Peires had accepted that two periods of 15 minutes each week of the activity would be acceptable and that this was, in fact, a longer period than the Aerodrome had contended actually occured. The court therefore allowed the activity to continue for this fixed period each week within an agreed precise location of the Aerodrome. Finally, while damages were not awarded, the judge recognised that he should set a figure for what he would have awarded in damages had they been appropriate here (in case the injunction was discharged later on by an appeal court and damages awarded instead). He accepted that it was appropriate to consider the diminution in value of the property as a result of the activity not being curtailed: he held this to amount to £583,000.