Nature v Nuisance – The importance of proving your case.

For the attention of litigators – Ray v Windrush Properties Ltd [2022] EWHC 2210 (TCC), an alleged private nuisance case, is a useful reminder of issues relating to proving a claim in nuisance, and in realistically valuing damages.

The Claimant is an owner of a property in rural village and tourist hotspot of Bourton-on-the-Water and the Defendant is the owner of an adjoining property. Having previously used her property as a ‘sustainable lifestyle demonstration’ visitor centre, the Claimant adapted her property to a 4-bedroom home with the intention of letting it as a relaxing holiday premises. She incurred expenses in marketing the property, including commissioning a website design for the holiday let.

In 2016, the Defendant’s company took over the running of the food outlet neighbouring the Claimant’s property, after obtaining on appeal permission for a change of use for a hot food takeaway. Building works at the Defendant’s property were then undertaken including the installation of air intake and extraction fans and flues, air conditioning units and a detached refrigeration unit (“The Mechanical Plant”) at the Defendant’s property. Both the restaurant and the takeaway closed for business in late March 2020 as a consequence of the coronavirus pandemic. The Defendant then took the decision to sell the property.

The Claimant’s complaint is that during the period of operation of the expanded food business, between March 2018 and April 2020, exclusive, the emissions of noise and odours from the Defendant’s property were such as to interfere unreasonably with the use and enjoyment of her own property. She says that, as a consequence, she was unable to market her property as a holiday let and therefore removed it from the letting market at financial loss to herself.

The Claimant sought a mandatory order for the removal of the Mechanical Plant; a declaration allowing her to enter the Defendant’s property to remove it; damages for nuisance including special damages in the sum of £41,144.14; interest; and costs.

The following issues fell to be addressed at the trial: 1) The character of the locality of the Claimant and Defendant’s properties; 2)   The level of noise and/or odour emissions caused the Mechanical Plant during the nuisance period; 3) Whether and to what extent the noise and/or odour interfered with the Claimant’s reasonable enjoyment of her property during the nuisance period; 4) If there was such interference amounting to a nuisance, as alleged: a) whether such interference caused the losses pleaded by the Claimant in the Particulars of Special Damages; and b) whether the Defendant threatens to cause further interference and/or in the circumstances generally the Claimant should be granted the injunctive relief sought.

Determination of issue one was seen as a necessary first step in approaching the question of liability raised by issue three. Assessment of the locality was to inform the Court’s decision as to the degree of protection to be given to the Claimant’s use and enjoyment of her property applying the principle of neighbourly give and take. Comparing the case to Vanderpant v Mayfair Hotel [1930] 1 Ch 138, the Judge concluded that the Claimant’s property is located in, what for many years, was a busy tourist spot. As the owner of a visitor centre prior to the conversion of her property to a holiday let, she had built her business on the substantial footfall of tourists who clearly require food outlets.

On issue two of the level of noise and/or odour emissions caused the Mechanical Plant during the nuisance period, the Judge found the expert evidence to be vulnerable to the Defendant’s criticisms. It was concluded that the level of noise was not just a matter of expert evidence as the witnesses of fact spoke to it and given the subjectivity in the views of the witnesses, the Judge addressed this point in his judgment on issue three. In regard to the level of odours, the Judge accepted the Claimant’s witness’s evidence concluding that the presence of the odours did materially detract from the enjoyment of the rear garden at the Claimant’s property.

On issue three, it followed that the Claimant had failed to establish liability for nuisance. The expert evidence was found not to determine the merits of the claim in nuisance. The Judge’s decision that the cause of action in private nuisance has not been made out rested upon two related points.  The first was his decision on the first issue, as to the character of the locality, and the second is based upon the Claimant’s ability to let her property under the assured shorthold tenancy.  Together, these point to the conclusion that the Defendant did not during the nuisance period violate the Claimant’s ownership rights in a way that supports her claim.

On issue four, the Judge said it was not strictly necessary to address the relief sought in the Particulars of Claim given his conclusion that the Claimant had not established her claim in nuisance, but he did so anyway in the interests of completeness. In summary, on the Judge’s assessment of the evidence, including the popularity of Bourton-on-the-Water with visitors, he would have accepted that during the alleged nuisance period the Claimant could have secured a gross rental income of, say, £45,000.  On the basis of the pleaded Particulars, approximately £16,000 would fall to be deducted as expenses incurred to generate the £45,000.  Then, for 18 months of the nuisance period, the value of the rent received under the AST would fall to be deducted: £18,000.  Deductions of £16,000 and £18,000 against a notional income of £45,000 indicate that the true measure of loss suffered by the Claimant as a result of the (presumed) nuisance was the region of £11,000.  As the Claimant was not in personal occupation of her property, the Judge would not have been persuaded to award general damages for the less tangible loss of amenity reflected in the annoyance and discomfort caused by the nuisance.

It followed that the Claim was dismissed demonstrating the importance of proving a claim with sound expert advice, and the significance in taking a realistic approach to valuing losses.

How can PIC help?

The judgement demonstrates the importance of proving a claim and taking a realistic approach to valuing losses. Always be aware that the cost consequences of bringing speculative and weak claims are high. You have a duty to bring this risk to your clients’ attention. PIC’s Costs professionals are often co-opted into litigation teams to offer advice throughout the case on cost consequences of budgets, conduct and P36 offers. We assist with the complete costs management process, working in partnership with you to secure the best result. We listen, adapt and advise which means we provide a service to suit your requirements.

Alicia Onza, Trainee Law Costs Draftsperson

06.04.2023

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