Audie Alexander Dennis & Anor v Head Start Day Nursery Ltd & Anor

In a statutory nuisance case involving noise, the court must first decide whether the interference exceeds the objective threshold of substantiality. The question is judged by the standards of an ordinary person in the position of the claimant, having regard to the utility and amenity of the actual land. Individual sensitivity is irrelevant.

If the threshold is not met, there is no need to consider whether the defendant’s activity constituted a common and ordinary use of its land. The character of the locality is relevant to ordinary use, not to the threshold assessment. A trial judge may reject witness evidence on credibility grounds not put expressly to the witness where the grounds were adequately explored or, in appropriate cases, despite that omission.

The appellants prosecuted the respondents for statutory nuisance arising from noise emitted by a children’s nursery next door. After a six-day trial, District Judge Mehta found the respondents not guilty, holding that the noise was below the threshold required to constitute a nuisance.

The appeal was brought by way of case stated. The questions concerned whether the District Judge had applied the substantial-interference test, whether he had wrongly treated the appellants’ home as unusually acoustically sensitive, and whether he was entitled to reject supporting witnesses as lacking independence or credibility without putting every concern directly to them.

1. Appeal dismissed. The three questions stated for the opinion of the High Court were answered in the affirmative.
2. Under section 82 of the Environmental Protection Act 1990, the statutory nuisance alleged was noise constituting a private nuisance. The common-law principles of private nuisance therefore governed the central issue.
3. The substantial-interference threshold is objective. It is assessed by reference to the standards of an ordinary or average person in the claimant’s position and to the utility and amenity of the actual land, rather than the particular sensitivities of its occupiers. The District Judge was entitled to find, on the acoustic evidence, that the noise was faint, low-level and muffled and did not substantially interfere with ordinary use and enjoyment.
4. Once the threshold is found not to have been crossed, the court need not consider whether the defendant’s activity was a common and ordinary use of its land. The character of the locality is relevant to that latter assessment, not to the threshold question.
5. The alleged unusual acoustic sensitivity of the appellants’ property was a red herring. Its low background noise resulted from its quiet location, while soundproofing made the dividing wall more resilient. The appellants’ conduct and reactions were relevant to the objective assessment but did not establish an actionable interference.
6. The District Judge was entitled to reject the lay witnesses’ evidence. Their lack of independence, conflict with objective noise data, discussions with the appellants and continued visits to the property had been adequately explored in cross-examination. In any event, Chen v Ng recognised that putting every possible reason for disbelief to a witness is not an absolute requirement in every case.

1. Magistrates’ Court: District Judge Mehta found the respondents not guilty of statutory nuisance on 23 May 2023.
2. High Court (Administrative Court): The appeal by way of case stated was dismissed. Each question was answered in the affirmative.