The recent case of Diana Effie Elliott Ray v Windrush Riverside Properties Limited [2022] EWHC 2210 (TCC) considered the law of private nuisance in the context of noise and smells emanating from a fish and chip shop. While the facts of the case are important the decision will be of interest to anyone operating (or living next to) a fast food establishment.
The brief facts of the case are that the claimant (“Mrs Ray”) was the owner of a four-bedroomed house on the High Street in Bourton-on-the-Water, Gloucestershire. Mrs Ray did not live in the property at any material time but used it for the purposes of a “sustainable lifestyle demonstration” centre until 2015 and thereafter adapted it as holiday lettings which were accessible to disabled persons. After being unable to let the property for such uses Mrs Ray let it to a family member on an assured shorthold tenancy at a below-market rent.
The defendant (“Windrush”) acquired the adjoining property in 2006 and it was already in part being used as a fish and chip shop at that time. From 2016, Windrush obtained planning and listed buildings consent for the expansion of the existing chip shop use and the installation of air conditioning and extraction units on the exterior of its property. Mrs Day subsequently alleged that the noise and smell emanating from the newly installed air conditioning and extraction units was making it impossible for her to let her property as a holiday let. She therefore claimed injunctive and declarative relief, damages and costs.
In its defence, Windrush accepted that some noise and odour emanated from the fish and chip shop but denied that this caused any undue interference with the activities of others in the vicinity of the premises or unreasonably interfered with Mrs Ray’s enjoyment of her property.
HHJ Russen QC, sitting as a Judge of the High Court, stated that the following issues fell to be addressed:
- The character of the locality;
- The level of noise and/or odour omissions caused by the air conditioning and extraction units during the nuisance period;
- Whether and to what extent the noise and/or odour interfered with Mrs Ray’s reasonable enjoyment of her property during the nuisance period
- If there was an interference amounting to a nuisance as alleged, whether such interference caused the losses pleaded and whether Mrs Ray should be granted the injunctive relief sought.
In respect of the locality, Mrs Ray sought to characterise the area as one of tranquility, whereas Windrush (with whom the judge agreed) argued that the area was a popular and busy tourist destination. Anyone who has been to Bourton-on-the-Water might be inclined to agree with the judge also. The level of noise or odour emissions was a point determined on the basis of the evidence (including expert reports) and it was accepted that odours could linger in the garden and (on days when the windows were open) inside Mrs Ray’s property also.
In respect of interference with Mrs Ray’s use, the court noted that Mrs Ray was the only claimant and was not resident in her property. The use alleged to have been disturbed was therefore the holiday letting use. The judge said that the question to be answered was whether Windrush had unduly interfered with Mrs Ray’s enjoyment of her property when she was able to let the property as a holiday home to tenants who were prepared to tolerate a degree of discomfort and inconvenience even though the noise and smells would have been incompatible with the special purposes she had been seeking to let it for. The judge noted that the case law included such concepts as “give and take”, “live and let live” and “reasonableness between neighbours” and on balance held that on the facts there was no undue interference with Mrs Ray’s use. Mrs Ray had advanced a case that was based on her own special use of the property which was more sensitive to the alleged nuisance and in the round the judge considered that Windrush’s activities did not amount to unreasonable conduct sufficient to give rise to a legal remedy. The judge did not therefore need to consider point (d) above.
The case turned on its facts and the judgment may have gone very differently if the properties were in a quiet idyllic location with Mrs Ray occupying her property. The expert evidence discussed in the judgment also highlighted certain engineering features that should be borne in mind when installing plant to the exterior of a property in order to mitigate any effect on adjoining properties.