Diana Effie Elliot Ray v Windrush Riverside Properties Limited

Private nuisance is determined objectively by reference to the character of the locality and the standard of comfort reasonably expected by an average occupier. A claimant cannot rely on an unusually sensitive use of land where that use is inconsistent with the surrounding neighbourhood. The absence of planning permission may inform the circumstances but is not determinative of nuisance liability. A claimant who does not occupy the property must establish interference with the use or profitable deployment of the property for which protection is sought. The court may refuse a future injunction where the evidence and undertakings show no appreciable risk of recurrence.

The claimant owned a property in Bourton-on-the-Water which she intended to operate as a holiday let. The defendant owned adjoining commercial premises from which restaurant and takeaway ventilation, refrigeration and extraction equipment emitted noise and cooking odours. The businesses operated between March 2018 and March 2020 and then closed.

The claimant alleged private nuisance and sought damages, removal of the mechanical plant, declarations and injunctive relief. The issues included the character of the locality, the level and effect of the emissions, liability in nuisance, loss and the necessity for future relief.

1. Liability. The claim was dismissed. Private nuisance requires an objective assessment of whether the defendant’s use caused an unreasonable interference with the claimant’s reasonable enjoyment of land. The assessment applies the principle of reasonable user and neighbourly give-and-take, having regard to the locality and the standards of the average person.
2. The locality was a busy tourist and commercial centre with restaurants, cafés, takeaways and substantial visitor activity. It was not objectively reasonable to expect a tranquil eco-retreat, free from any impact of neighbouring commercial operations, in that setting. The claimant’s unusually sensitive conception of the property’s intended use amounted to delicacy or fastidiousness for nuisance purposes.
3. The claimant did not occupy the property. The relevant question was whether the emissions materially interfered with her use of it as a holiday let and her enjoyment of rental income. For most of the nuisance period the property was occupied by tenants who knew of the noise and odours and were able to live and work around them. Their occupation provided evidence of the comfort reasonably to be expected by ordinary occupiers.
4. The absence of planning permission and the existence of planning enforcement notices were not determinative. Planning unlawfulness and the effect of a use upon a neighbour are distinct questions.
5. Had nuisance been established, the defendant could have relied on the common and ordinary use of the premises, but would probably have failed to show that the mechanical plant had been installed with proper consideration for neighbours. That alternative conclusion was unnecessary to the disposal.
6. The damages claim was also inadequately established. The alleged loss was a loss of profit, requiring deductions for ownership expenses and rent received. No recoverable loss could accrue during periods when holiday letting was legally impossible because of pandemic restrictions. The proposed mandatory injunction would not have been granted because the defendant’s undertakings and proposed sale arrangements did not show an appreciable risk of recurrence.
7. The claim was dismissed. Consequential matters and any application for permission to appeal were adjourned.