A right to regular noise

It is possible to acquire a prescriptive right to make noise, the Supreme Court has confirmed 3-2 in a landmark judgment.

The noise arose from a series of motor races held at certain times of the year. A couple who lived in a bungalow 850 yards away brought an action for nuisance, in Coventry & Ors v Lawrence & Ors (No 2) [2014] UKSC 46.

Delivering judgment, Lord Neuberger said: “It seems to me that there is no inherent reason why a right to…make a noise which would otherwise be a nuisance, should not be established by prescription.”

The court upheld the decision of the Court of Appeal and High Court that the owner of the track, had no liability for the nuisance since they did not “participate directly” in the commission of it, but found the occupiers were liable.

Lucinda Brown, partner at Hewitsons, who acted for Terence Waters, the landlord of the track, says: “The case is the first to confirm that it is possible to acquire a prescriptive right to commit what would otherwise be a noise nuisance, providing that it can be shown that the noisy activity complained of has amounted to a nuisance for a period of 20 years or more.

“In addition, landlords of commercial premises who may not always be in position to monitor the activities of their tenants will be encouraged by the upholding of the established principle that they will not be liable for their tenants’ nuisance unless they either authorise or actively participate in the nuisance. Further, there has been a strong indication from the Supreme Court that mechanically applying existing principles to award injunctions in lieu of damages for infringements of property rights in the lower courts is a flawed approach, which is perhaps likely to widen the scope for damages to be awarded in lieu of an injunction and reduce the readiness of the courts to award injunctions.”

The court also considered whether the order for costs against the occupiers breached their Art 6 human rights. Lord Neuberger stayed this issue pending government intervention, but criticised the couple’s “exorbitant” £640,000 trial costs.