Murdoch v Glacier Metal Company Ltd

Whether noise constitutes a private nuisance depends on the standards of the average person, having regard to the character of the neighbourhood and the overall circumstances. A substantial addition to existing noise may constitute a nuisance even in an industrial area and even where modern machinery is reasonably operated. Sleep disturbance is an important consideration, but it does not automatically establish nuisance. The court may consider evidence of statutory nuisance, the absence of complaints from neighbours, noise fluctuations, measured levels and the practical use of the property. The Court of Appeal should be slow to interfere with a trial judge’s assessment of factual evidence, particularly where the judge saw the witnesses and inspected the site.

Ann and Duncan Murdoch appealed against the dismissal of their claims in negligence and nuisance against Glacier Metal Company Ltd. The claims concerned noise and glare from the company’s factory near the appellants’ home and adjoining land. The appeal was confined to whether the factory noise constituted an actionable nuisance.

The properties were in a mixed residential and industrial area. The recorder considered expert noise evidence, World Health Organisation recommendations, the environmental health officer’s opinion and the lack of supporting complaints from neighbouring residents. The central issue was whether the recorder had applied the correct approach and adequately considered fluctuating night-time noise and its effect on sleep.

1. Appeal dismissed. The recorder had applied the correct nuisance test: whether the noise was sufficiently serious according to the standards of the average person, taking account of the character of the neighbourhood.
2. The principle in Rushmer v Polsue & Alfieri Ltd [1906] 1 Ch 234 that a substantial addition to existing noise may create a nuisance remained applicable. It was no answer that the neighbourhood was already noisy or that the defendant’s machinery was modern and properly operated.
3. Sleep disturbance was important but was not by itself conclusive. The court had to consider the overall situation, including the measured noise levels, fluctuations, whether windows were open or closed, the nature and effect of the noise, the mixed character of the area and competing background noise from the bypass.
4. The recorder was entitled to treat the environmental health officer’s view that there was no statutory nuisance as a pointer against common-law nuisance. He was also entitled to regard the paucity of complaints from neighbours as relevant, without requiring a comprehensive neighbourhood survey.
5. The recorder had sufficiently considered the fluctuating character of the noise. The evidence did not require the WHO recommended level to be treated as a rigid threshold, and the bedroom measurements, particularly with the windows closed, supported his conclusion.
6. The Court of Appeal should not interfere with factual conclusions reached by a trial judge who had heard the witnesses, visited the site and carefully assessed the evidence. The appeal was dismissed with costs, subject to the order concerning the Legal Aid Fund.

• Court of Appeal (Civil Division): appeal from the Yeovil County Court dismissed with costs.
• Yeovil County Court: Mr Recorder Trethowan dismissed the claims in negligence and nuisance on 27 September 1996.