Cruel Summer: When the sounds of summer lead to legal action

In the summer, as people hold various casual and organised gatherings on their properties, you’re much more likely to hear unwanted noise from your neighbours. Sometimes you just have to put up with this, but if the noise generated by a neighbouring landowner is continuing, and interferes with your enjoyment of your own property, you may be able to claim under the law of nuisance. This article examines the relevant law.

Imagine two neighbours: Mr Shepherd and Mrs Wedderburn.

Mr Shepherd owns a rural estate. During the summer months he hosts events and festivals. He also encourages responsible wild camping on his land. Bordering the estate is a residential property owned by Mrs Wedderburn. Over the course of the summer, Mr Shepherd hosts a number of late-night gatherings, with loud music and large numbers of guests. The noise frequently continues into the early hours of the morning, disrupting Mrs Wedderburn’s use and enjoyment of her home.

Does Mrs Wedderburn have a claim against Mr Shepherd?

The legal test for nuisance

The law of nuisance may provide a remedy where the owner or occupier of property is using their land in a way that interferes with a neighbouring proprietor’s enjoyment of their property.

In order to be actionable, the alleged nuisance must be continuing (i.e. not a one-off incident) and the complainer must have suffered more than they could reasonably be expected to tolerate (known as the plus quam tolerabile test). The interference must go beyond mere discomfort to Mrs Wedderburn.

In our hypothetical scenario, if there is a single noisy event, it is unlikely that there will be a claim in nuisance. However, if late-night noise occurs frequently, particularly during the summer months, and can be attributed to the way in which Mr Shepherd is using his land, then Mrs Wedderburn may have a claim in nuisance.

A number of facts and circumstances will be taken into account in determining whether conduct amounts to a nuisance and the plus quam tolerabile test is met:

The nature of the harm
The impact and extent of the noise
The character of the locality
The time the noise is said to take place
The frequency and duration of the disturbance
Any conventions that may mean the noise is tolerable
The importance of the activity said to cause the nuisance
Whether steps can be taken to reduce or prevent the noise
What measures could be taken by Mrs Wedderburn to mitigate the impact

For example, some level of activity and noise may be expected in a rural area during the summer months – after all, many people buy a rural property to enjoy all the outdoors has to offer. BBQs, summer fetes and social gatherings may be expected. However, persistent loud music late at night may well be considered to go beyond what neighbours could reasonably be expected to be tolerate, particularly where it interferes with sleep and the ordinary use of a home.

If Mr Shepherd is allowing third parties to run events and festivals on his land, complications may arise around who is causing the nuisance. But that point is beyond the scope of this article.

Did Mrs Wedderburn “come to” the loss?

Mr Shepherd is well known in the area for his noisy parties. Mrs Wedderburn previously lived nearby and had attended his parties in the past before she bought the property next door. Could it be argued that Mrs Wedderburn had moved into the property with full knowledge of Mr Shepherd’s reputation? Case law supports the position that, even if a party comes to the nuisance with full knowledge of it, that is not a valid defence. New residents are still entitled to quiet enjoyment of their property even if they knew the neighbour was noisy.

If the court is persuaded that the noise constitutes an actionable nuisance, then what remedies could Mrs Wedderburn seek?

Remedies

The most commonly sought remedy in cases of nuisance is interdict. An interdict is a court order to prevent a wrong that is in progress or one which is reasonably anticipated. It is similar to what is known in England as an injunction.

Liability for interdict in nuisance is strict. This means that it is not necessary to prove fault – only that there is an actionable nuisance.

However, if the nuisance causes loss (for example, where the disturbance affects the use or value of the property), a claim for damages will require proof of culpa.

Culpa may arise if Mr Shepherd’s conduct was:

(a) negligent (failing to take reasonable steps to manage or limit noise)
(b) malicious (carrying on in the knowledge that the activity will cause disturbance)
(c) reckless (disregarding the effects on neighbouring properties)
(d) carried out with knowledge that it would interfere with Mrs Wedderburn’s enjoyment of her property

Statutory nuisance

So far we have explored nuisance as a product of the common law. However, a statutory nuisance can occur when an activity falls within matters listed in Section 79 of the Environmental Protection Act 1990. This applies to noise emitted from premises so as to be prejudicial to health or a nuisance.

‘Prejudicial to health’ is defined in the 1990 Act as being injurious or likely to cause injury to health. It refers to a set of physical circumstances that are more than can be reasonably tolerated. It is not sufficient that there is a risk to personal injury or accident – there must be an underlying threat to health from disease.

Local authorities have a duty to inspect their area to detect any statutory nuisances, and to take steps to investigate complaints about statutory nuisances.

However, even if Mrs Wedderburn can prove a statutory nuisance has occurred, compensation for any financial loss cannot be awarded under the 1990 Act. What remedies may then be open to her?

Remedies – statutory nuisances

Where a local authority is satisfied that a statutory nuisance exists or is likely to occur or recur, it will serve an abatement notice. The abatement notice can impose a number of requirements: for example, requiring the abatement of the nuisance, or prohibiting or restricting its occurrence or recurrence and the works that may be necessary to achieve those purposes. There are 21 days to appeal an abatement notice.

It is an offence not to comply with an abatement notice and in that case, the local authority can serve a fixed penalty notice – if the nuisance relates to industrial, trade, or business premises, the fixed penalty is £400 and in any other case, £150. Paying the fixed penalty avoids the possibility of a conviction.

If no payment is made, the person committing the nuisance is liable to a fine not exceeding £5,000, together with a further fine equal to 1/10 of the fine for each day that the offence continues. If the offence is on industrial, trade, or business premises, the fine shall not exceed £40,000.

It is worth noting also that statutory nuisance is not always dealt with by abatement notices, because the aggrieved party does not have to go through their local authority. Under Section 82 of the 1990 Act, a person may apply to the Sheriff Court on the ground that they are aggrieved by the existence of a statutory nuisance, so this route may also be open to Mrs Wedderburn.

How can we help?

Cases such as these are highly fact-specific. In a rural setting, some level of seasonal activity may be expected, particularly during the summer. However, there is a point at which repeated or excessive noise may cross the line into actionable nuisance.

Disputes of this nature can escalate quickly, particularly where they involve ongoing use of land for events in a concentrated period of time. Early advice is often key to finding a practical resolution – and formal proceedings are not the only way to achieve this. Other methods, such as mediation, are often preferable.

Our Rural Disputes team is part of Shepherd and Wedderburn’s wider Rural Property and Business practice. We work closely with clients to resolve contentious issues as efficiently as possible, including through alternative dispute resolution where appropriate.

If you would like to discuss a potential nuisance issue, please contact a member of our Rural Disputes team.

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