Thornhill & Ors v Nationwide Metal Recycling Ltd & Anor

Noise nuisance is assessed objectively by asking whether the interference materially affects the use and enjoyment of land. The court considers the circumstances as a whole, including background noise, the extent of the interference and remedial measures. An observation that closing a window would reduce noise does not impose a duty on the occupier.

Parties should exchange sufficient information before proceedings and make appropriate attempts to settle or consider ADR. Urgency modifies the extent of reasonable compliance but does not provide a general exemption. Non-compliance may justify costs sanctions. Further relief may be inappropriate where the pre-action failures have already been sanctioned and the dispute was not amenable to settlement while the nuisance continued.

Residents living beside a scrap-metal yard brought proceedings against Nationwide Metal Recycling Ltd and the freehold owners, Roundwood Restorations Ltd. Following a six-day trial, His Honour Judge Simpkiss, sitting as a High Court judge, found that the yard caused an actionable noise nuisance between 23 April 2009 and the erection of acoustic barriers in early March 2010. He awarded damages and accepted undertakings from Nationwide, but dismissed the claim against Roundwood.

The residents appealed against the finding that the nuisance ceased after the barriers were erected. Nationwide appealed on costs, arguing that the residents’ pre-action conduct and the conduct of their expert justified a more favourable costs order. The central issues were whether the nuisance finding involved an error of law and whether the costs order should be varied.

Sir Henry Brooke gave the leading judgment. Lord Justice Tomlinson and Lord Justice Ward agreed. Both appeals were dismissed.

1. Noise nuisance. The applicable test was objective. The question was whether the noise materially interfered with the claimants’ use and enjoyment of their land. The judge had directed himself correctly, consistently with the approach in Sedleigh-Denfield v O’Callaghan [1940] AC 880, Walter v Selfe [1851] 4 De G & Sm 315, Bolton v Stone [1949] 1 All ER 237 and Sturges v Bridgman [1879] 11 ChD 852.
2. The trial judge was entitled to assess the position after the barriers were erected in the round. He had considered the evidence, visited the site and found that the remaining noise did not constitute an actionable nuisance. The reference to closing the study window merely identified an obvious reduction in noise. It did not place an obligation on the claimants to abate an otherwise actionable nuisance. The reasoning was consistent with the principle that nuisance protects the utility of land, as explained in Hunter v Canary Wharf Ltd [1997] 1 AC 655. No error of law was shown, and the appellate court would not interfere with the evaluative conclusion.
3. Pre-action conduct. The claimants had failed to engage with discussions, disclose noise evidence promptly, comment on proposed noise-reduction measures, allow access to their properties by the defendants’ expert and provide the earlier judgment timeously. The Practice Direction (Pre-Action Conduct) required substantive compliance. The urgency of seeking an injunction did not excuse those failures, since compliance remained reasonably practicable.
4. The claimants had already been ordered to pay 80 per cent of the defendants’ costs of the interim injunction application. The proceedings were not amenable to settlement while the defendants continued conduct which the judge found to be an actionable nuisance. No further costs relief was therefore warranted on the pre-action ground.
5. The judge had considered whether the claimants’ costs should be apportioned and had addressed their exaggeration of the nuisance and criticisms of their expert. The defendants had not advanced a discrete argument concerning particular expert costs at trial, and the material did not justify appellate intervention. The costs of the appeals were to lie where they fell, and the stay on enforcement of the interim costs order was lifted.

• Court of Appeal (Civil Division) — [2011] EWCA Civ 919: dismissed the claimants’ appeal on continuing nuisance and Nationwide’s appeal on costs.
• Queen’s Bench Division — His Honour Judge Simpkiss, sitting as a High Court judge: found an actionable nuisance until the acoustic barriers were erected, awarded damages and accepted undertakings, but dismissed the claim against the freehold owners.