BDB Pitmans secures important court decision on nuisance
Tim Clark Partner
This news was also featured in Property Week.
Law firm BDB Pitmans has secured a significant court decision that has once again put the principles of nuisance under the legal spotlight.
The decision – A A Dennis and another v Head Start Day Nursery and another [2024] EHC 1248 (admin) – is one of the first times the principles of nuisance have been tested in the courts since the historic 2023 Supreme Court ruling in Fearn v Tate Modern and others and provides further clarification for commercial occupiers.
The Supreme Court in Fearn held that there would be a nuisance where there was substantial interference with the ordinary use and enjoyment of the property. In that case, it was visual intrusion.
Substantial interference is to be judged objectively, by the standards of an ordinary or average person in the claimant’s position. Further, and importantly, even where the defendant’s activity substantially interferes with use and enjoyment, it will not give rise to liability if the activity of itself is no more than ordinary use of that the defendant’s land. The Supreme Court concluded that the Tate’s viewing gallery failed this test.
These principles were recently applied in this private prosecution under section 82 of the Environmental Protection Act 1990 in which the common law of private nuisance applies.
BDB Pitmans successfully represented Head Start Day Nursery. The team was led by dispute resolution partner Tim Clark, who said:
‘In this case, the nuisance was the noise from a nursery school in a semi-detached Victorian property which was allegedly disturbing the neighbours on the other side of the party wall. It was no defence that the nursery had been in operation before the neighbours bought the adjoining house. Nevertheless, the claim failed in the Magistrates Court where the District Judge found, after a six-day trial, that the level of noise emanating from the nursery fell short of passing the threshold level necessary to be capable of amounting to a nuisance.’
The Administrative Court rejected an appeal by the neighbours. One of the significant issues that was raised on the appeal was how the court should apply the tests of nuisance from Fearn. Should the court consider, first, as a threshold question, whether the noise was a substantial interference and only then go onto consider if the nursery’s use of the property was an ordinary use of its land? Or, should it consider whether the nursery’s use of the land as ordinary was an important question of the overall assessment as to whether there was a nuisance.
Tim Clark adds:
‘The Judge rejected the latter approach. The District Judge had clearly found that the threshold test of substantial interference had not been passed. There was, therefore, no need to go on to consider the question of the common and ordinary use of the defendant’s premises. The court had not therefore needed to determine whether using a property built as a Victorian house as a nursery would have been an ordinary use of the premises in a residential neighbourhood.
‘It is now clear that in advising on any allegation of nuisance, the first step is to consider whether there is a substantial interference with the enjoyment of the claimant’s property.
‘If there is no prima facie nuisance, there is no need for the defendant to justify or excuse what it has done. If there is, consideration will then have to be given to whether it is an ordinary use of the defendant’s land; if it is, the defendant will not be liable for nuisance.’
