The determination of whether noise constitutes a nuisance or a statutory nuisance allows too many discretionary factors to be taken into account

Environmental Law w12003024
Page 1 of 13
The determination of whether noise constitutes a
nuisance or a statutory nuisance allows too many
discretionaryfactors to be taken into account, not least
the locality of the area.
Critically evaluate the argument that the question of
whether noise constitutes a nuisance should be now be
determined by reference to fixed noise levels.

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Introduction
In a World Health Organisation publication, it was concluded that more that 30% of the population
of Europe is exposed to levels exceeding 55 dB (A) at night a year. It was also noted that at this
level of noise there was an ever increasing danger to public health and that there is evidence that
the risk of cardiovascular disease increases proportionately with increased noise1. We can see from
this that there is a clear problem, with regards to noise, that needs to be addressed in the UK and all
across Europe. The primary method the UK uses in attempts to deal with issues of noise is through
the action of nuisance.
The tort of nuisance is the one most connected with environmental protection2. An action for
nuisance can lie with many different things that affect nearby land or the comfort of the owners of
nearby land. Examples of such things include land activity and use, smells produced, and noise
emitted. This piece will seek to evaluate the current laws on nuisance, mostly in reference to the
latter, and go on to discuss whether they are adequate to deal with the addressed problems.
1 World Health Organisation,NightNoise Guidelines for Europe (WHO Regional Officefor Europe, 2009) pt IX-XVIII
2 Chris Turner and Sue Hodge, Unlocking Torts (3rd edn, Hodder Education 2010) 199

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Nuisance in the UK
In the UK, there are two ways of appeasing a nuisance, through common law and through statute.
The common law of nuisance can be broken down into two types, private and public nuisance.
Private nuisance protects the individual’s right to use and enjoy their property without the indirect
interference from others. Essentially, private nuisance protects neighbour from neighbour. It
protects interests in and the enjoyment of land. It is concerned with competing rights. What may be
reasonable to one person may be received as unreasonable by another. What is unreasonable is
what ordinary, decent people would consider unreasonable3. Baron Bramwell said that there was a
rule in nuisance and land ownership ‘of give and take, live and let live’4. The courts try to balance
these rights by applying external discretionary factors on a case by case basis. Such factors include,
but are not limited to, the location, time, duration and frequency of the alleged nuisance. The courts
will give all the relevant factors effect when deciding whether an activity is unreasonable towards
the ordinary person. The main purpose the claimant has when pursuing a private nuisance claim is
to obtain an injunction to end the nuisance5, and damages for the past nuisance which may have
diminished the value of the land or incurred physical damage to the land6.
Public nuisance is behaviour that ‘materially affects the reasonable comfort and convenience of a
class of her Majesty’s subjects’7. For a public nuisance to be actionable there must be an activity
that reasonable affects the comfort or convenience of someone, and that someone must be a class
of people, a community or a neighbourhood. Effectively, this protects behaviour that affects a
neighbourhood or community, instead of an individual neighbour. When deciding whether an
activity or use of land is unreasonable to a class of people, a judge will again apply discretionary
factors. Public nuisance can be either a crime or a tort, and the action will come from either the
Attorney-General or the local authority8 on behalf of those affected. Noise can constitute both
public and private nuisance9.
3 Robert McCracken, Gregory Jones and James Pereira, Statutory Nuisance (3rd edn, Bloomsbury Professional Ltd
2012) para 1.06
4 Bamford v Turnley (1860) 122 ER 25
5 Shelfer v City of London Electric Lighting Co (No.1) [1895] 1 Ch 287 (CA)
6 Hunter v Canary Wharf Ltd [1997] AC 655 (HL)
7 Attorney General v PYA Quarries Ltd (No.1) [1957] 2 QB 169 (CA) 184 (Romer LJ)
8 Local Government Act 1972, s 222
9 Halsey v Esso Petroleum Co. Ltd [1961] 1 WLR 683 (QB)

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Statutory nuisance is given effect under Section 79 of the Environmental Protection Act 1990
(hereinafter EPA), as amended, which establishes nine categories of statutory nuisance10. These
categories include noise from premises, and noise from vehicles or equipment in a street11. To
establish a statutory nuisance with regards to any of the categories, there are two limbs that need to
be satisfied. As to the wording of the Act, a statutory nuisance will be satisfied when the alleged
nuisance is either prejudicial to health or a nuisance12. The wording of the act is intentionally
specific; the requirement is for one or the other. Prejudicial to health is a straightforward term as it
is defined as injurious or likely to cause injury to health13. Guidance contributing towards a
judgement on this will be given by relevant professionals, organizations and common sense 14 .
The second limb, nuisance, is the unacceptable interference with the personal comfort or amenity
of neighbours or the nearby community. From this, we can see that nuisance is given its ordinary
common law meaning15.
Statutory nuisances were imposed to improve the law and the summary procedures dealing with
them16. Rose LJ, former Vice President of the Court of Appeal, Criminal Division, once said, ‘the
hallmarks of the statutory remedy can be summarised in two words “simple” and speedy”’17.
Unfortunately, as seen in case law and the external discretionary factors that come with nuisance,
and although this was the intention of statutory nuisance, it has not become the reality.
10 Environmental Protection Act 1990, s 79(1)
11 Ibid s 79(1)(g) and (ga)
12 Ibid s 79(1)(a)
13 Ibid s 79(7)
14 Murdoch v Glacier Metal Co Ltd [1998] Env LR 732 (CA)
15 R v Carrick District Council [1996] Env LR 273 (QB) 278
16 Environmental Protection Act 1990, Introductory text
2012) para 1.01

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Discretionary factors applicable to nuisance
When making a judgement on a nuisance case, be it private, public or statutory, a judge will make
reference to certain relevant discretionary factors which will give an indication as to whether an
interference will be unreasonable or not. It is these discretionary factors that will give way for the
judge to make a judgement. There is by no means an exhaustive list of these factors, but just key
considerations a judge must apply before judgement. This piece will seek to evaluate a select few
of these factors.
One of the most important factors for consideration is the locality of the nuisance. As Thesiger LJ
famously once said, ‘what would be a nuisance in Belgrave Square would not necessarily be so in
Bermondsey’18. For example, the same activity that might not be considered to be a nuisance in a
rural area, such as the countryside, might be considered to be one in an urban area, such as a city. If
the activity has been happening for a substantial period of time in a particular area, it might well
give rise to be a part of the character of that area, so long as it does not constitute a nuisance19. This
would give support for the activity being reasonable. As well as happening for a substantial period
of time in a particular area, planning permission from the local authority may also define the
locality and what activities are acceptable20. Although it is accepted that planning permission does
not in effect grant a nuisance to occur, it can change the character of the locality so that an activity
is more likely not to be a nuisance21. However, this is a question of fact and degree that will be
looked at on a case by case basis, and is not guaranteed to deem an activity reasonable22. If fixed
noise levels were to be implemented, we would see rural areas and society becoming much more
difficult to develop. Without discretionary factors and the ability of planning permission to change
the character of a neighbourhood, a nuisance would be much easier established with activities such
as construction. Buckley J highlights in his decision in the Medway (Chatham Docks) case the
importance of this discretionary factor. He said that economic and job benefits from societal
development were an acceptable price to pay for the adverse effects of activities23. Fixed noise
levels would not allow for this scope of development and can be viewed negatively in this light.
18 Sturges v Bridgman (1879) 11 Ch D 852 (Ch) 865
19 Coventry v Lawrence [2014] UKSC 13, [2014] AC 822
20 Gillingham BC v Medway (Chatham Docks) Co Ltd [1993] QB 343 (QB)
21 Ibid
22 Watson v Croft Promo-Sport Ltd [2009] EWCA Civ 15, [2009] 3 All ER 249
23 GillinghamBC v Medway (Chatham Docks) Co Ltd [1993] QB 343 (QB) 358

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The time the nuisance occurs is also relevant. As established in Halsey v Esso Petroleum Co. Ltd,
the ordinary man or woman takes his or her rest at night and is entitled to sleep undisturbed by
continual noise24. By this convention, if an alleged noise nuisance occurs in the middle of the night,
it is more likely, but not definitive, to be regarded as an actionable nuisance than if the exact same
noise occurred in the middle of the day. Planning permission can impose certain restrictions on the
time noisy activities can occur, which can help to control noise in a neighbourhood, and avoid
nuisance complaints25. A judge again would give this weight when considering whether or not a
nuisance had occurred. He would see whether the noise was inside the prerequisites given in the
planning permission and give that weight in making his judgement. If we apply the principals of
the time a noise nuisance can occur as a discretionary factor to the implementation of fixed noise
levels, we can see that a nuisance would be much more easily established. Fixed noise levels would
easily find noise during the night to be a nuisance, as whatever noise was over the fixed level
would constitute it. This provides certainty in the law whereas a judge’s discretion on a case by
case basis does not. However, there are already provisions in place to control noise at night. In the
UK we have the Noise Act which controls noise emitted from private dwellings at night26. We also
have the Control of Pollution Act which controls the amount of noise that can be produced from
construction sites of a night time27. From this we can see that fixed noise levels at night time may
establish certainty in the law, but at the same time, may be unnecessary.
Similar and often dealt along with time, the duration of the nuisance will be relevant. Most
nuisances consist of an activity occurring over a long period of time, which causes annoyance to
the neighbour or community. It is in most instances a claimant will bring a claim to stop the
constant continuance of the act, not the entire act itself. As a general rule, the longer the alleged
interference lasts, the more likely it is to constitute a nuisance. As a land owner, there is a certain
amount of interference that you are expected to put up with, such as temporary interferences28.
However, single, isolated events, or ‘one-offs’, can constitute a nuisance29. Nevertheless, for a one-
off incident to constitute a nuisance, something much more significant like the damage of private
property is seen to be required30. This shows that the law on nuisance can be unpredictable and
uncertain, and that however much one thinks that an activity will not constitute a nuisance, there is
24 Halsey v Esso Petroleum Co. Ltd [1961] 1 WLR 683 (QB) 698 (Veale J)
25 Watson v Croft Promo-Sport Ltd [2009] EWCA Civ 15, [2009] 3 All ER 249
26 Noise Act 1996, Introductory text
27 Control of Pollution Act1974,s 60-61
28 Harrison v Southwark and Vauxhall Water Company [1891] 2 Ch. 409 (Ch) 413
29 Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] CLC 1214 (Com Ct)
30 Ibid

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too much discretion given to a judge to decide whether it will or not. It is arguable that a judge
being able to find an isolated event to be a nuisance is unfair. Fixed noise levels would also pose a
similar problem, but to a worse degree. Generally speaking, nuisances are ongoing activities that
need to be controlled or banned. If fixed noise levels were in place, one-off incidents will always
constitute and be caught by nuisance. This would make the law too wide as unintentional and
unavoidable noises will be caught. Examples would include things such as a car or burglar alarm
going off. Activities much more substantial, like damage to private property, would not even be
required. These are the kind of examples that fixed noise levels as the law would catch, but a
judge’s discretionary judgement as the law would not. This is not desirable.
Another discretionary factory to be considered is the importance and value the activity has to the
immediate community. If the activity occurring has a specific use or value towards the community,
then it is more likely than not that their actions will be viewed as reasonable over unreasonable31.
The claimant will in some cases be expected to put up with some interference, especially
interference that carries with it social value. There does come a point, however, where even the
most socially acceptable activity can constitute a nuisance32. In the Dennis v Ministry of Defence
case, the social value of flying harrier jets was deemed to be too high to prohibit, as it was in the
interests of national security, but the interference with a citizen’s article 8 right to private and
family life33 could not go unrectified. Even national security is not an absolute defence to nuisance,
and the claimant was awarded £950,000 in damages. Arguably, awarding damages over an
injunction was the most sensible and practicable remedy available. It meant that Dennis had
compensation for his interference, but national security would not be affected. If we applied fixed
noise levels to this case, a different outcome may have occurred. Obviously the interference with
Dennis’ rights and property was one that could not go unrectified. If fixed noise levels were in
place, and that was all he had to prove had been breached, then they would not. However, if fixed
noise levels were in place, an upheaval of the military base would have been required. The fact that
the activity had social benefit would not even be considered by the courts. This would clearly be
disproportionate to the interference and adverse to the aims of the law.
From the factors given, we can see that in nuisance cases, everything is down to the judge’s
discretion. This creates a lot of uncertainty in the law. This is especially true with regards to
alleged noise nuisances, as nobody knows before court action what will constitute a noise nuisance.
31 Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch. 409 (Ch)
32 Dennis v Ministry of Defence [2003] EWHC 793, [2003] Env LR 34
33 Human Rights Act 1998,art8

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Imposing fixed noise levels would be one way in which certainty in the law could be guaranteed. If
they were imposed, one would know exactly the level of noise they could make on private land,
and exactly what levels of noise others could make on their own land, at specific time periods.

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Fixed noise levels
It has long been established that it is not a pre-requisite in nuisance to establish that noise occurred
over a particular ambient level34. This has remained the position in UK law. Noise levels are not
the law, decisions are made on the relevant factors at the discretion of a judge. However, the
reliance on a judge’s discretion in a case can be criticised. As the law currently stands, using this
discretion as the basis of nuisance, there is an argument around the certainty of the law. It is put
forward that using a judge’s discretion in nuisance cases creates too much uncertainty, suggesting
that reform might be necessary. Fixed noise levels are one possible reform proposed for noise
nuisance cases. Fixed noise levels would allow for greater certainty in the law. They will also
allow the UK to conform to W.H.O’s guidelines for night noise more firmly, allowing for the
possibility of reduced health risk across the population. However, fixed noise levels are not without
their drawbacks. It is claimed in this piece that, while a judge’s discretion changes the law on
nuisance too often and is responsible for the uncertainty it holds, fixed noise levels are not the
answer.
Fixed noise levels have been recognised and discussed as early as 197635. It was in this case that
the then Lord Chief Justice, Lord Widgery, started to identify problems with this method. He found
that the problem of attaching a fixed noise level to a specific juke box was where the level of noise
would be recorded36. This issue identified the hardship of implementing such an idea. Different
noises generated in different areas would interfere with a sound meter where ever it was positioned.
Another limitation of fixed noise levels would be that they cannot measure the most important
factors surrounding an alleged interference. The discretionary factors used by judges. The
discretionary factors are notoriously difficult to balance. It is a matter of degree, which fixed noise
levels would not take into account. As useful as they would be in determining how loud the noise
was, which might give an indication as to whether the interference was unreasonable or not, they
could not put that into context37. It would not be able to distinguish between a useful interference,
such as an ambulance driving by with its sirens on, or an unreasonable one, such as a loud party
taking place nearby. Additionally, it is worth noting that as technology is developing, the noise
making capacity of individuals is increased due to the wide scale ownership of electrical goods and
34 Godfrey v Conwy CBC [2001] Env LR 38 (QB) 675
35 R v Fenny Stratford Justices Ex p Watney Mann (Midlands) Ltd [1976] 1 WLR 1101 (QB)
36 R v Fenny Stratford Justices Ex p Watney Mann (Midlands) Ltd [1976] 1 WLR 1101 (QB) 1102
2012) para 8.18

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appliances38. Fixed noise levels cannot take societal developments like this into account. As
Buckley J once said, in certain cases a large element of common sense judgement is involved39.
A final drawback of fixed noise levels is the cost that they come with. They can involve expensive
equipment that is not readily available, or easy to use, by active citizens, community groups or the
local authority40.
38 Patrick Bishop,‘Inadequatesound insulation:does the lawof nuisanceprovidean effective remedy?’ (2005)
ENVLREUK 238,238 - 239
39 Budd v Colchester Borough Council [1999] Env LR 739 (CA) 744
40 Robert McCracken QC, Gregory Jones QC and James Pereira,Statutory Nuisance(3rd edn, Bloomsbury Professional
Ltd 2012) para 8.18

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Conclusion
In this piece we have seen the relevant law that the UK uses to tackle noise issues, nuisance. A
nuisance will be decided to exist if a judge believes that an activity on or use of land is
unreasonable. When deciding this, he will give weight to all the relevant external factors, putting
the nuisance into context, using his own discretion. These factors are non-exhaustive and case
specific. This has been seen to create uncertainty in the law. An example of this is shown in the
duration factor. The general principal follows that the more persistent an interference is the more
likely it is to be a nuisance. However, the problem lies with how discretionary and uncertain this is.
This can be seen by the Harrison case where a single isolated event was seen to constitute a
nuisance.
One way of developing certainty in the law would be by deciding alleged noise nuisance cases with
reference to fixed noise levels. If an activity breaches the fixed noise level of that area, it will be a
nuisance. However, this method also has its disadvantages. Determining whether noise will
constitute a nuisance by fixed noise levels takes that noise out of context and therefore does not
strike a balance between the competing interests of claimant and defendant.
Although it can be argued that the current law on nuisance is in need of reform, this piece sets out
that fixed noise levels are not the answer.
Word Count: 2,990

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BIBLIOGRAPHY
Primary Sources
UK Primary Legislation
Control of Pollution Act 1974
Environmental Protection Act 1990
Human Rights Act 1998
Local Government Act 1972
Noise Act 1996
Cases from England and Wales
Attorney General v PYA Quarries Ltd (No.1) [1957] 2 QB 169 (CA)
Bamford v Turnley (1860) 122 ER 25
Budd v Colchester Borough Council [1999] Env LR 739 (CA)
Coventry v Lawrence [2014] UKSC 13, [2014] AC 822
Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] CLC 1214 (Com Ct)
Dennis v Ministry of Defence [2003] EWHC 793, [2003] Env LR 34
Gillingham BC v Medway (Chatham Docks) Co Ltd [1993] QB 343 (QB)
Godfrey v Conwy CBC [2001] Env LR 38 (QB)
Halsey v Esso Petroleum Co. Ltd [1961] 1 WLR 683 (QB)
Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch. 409 (Ch)
Hunter v Canary Wharf Ltd [1997] AC 655 (HL)
Murdoch v Glacier Metal Co Ltd [1998] Env LR 732 (CA)
R v Carrick District Council [1996] Env LR 273 (QB)
R v Fenny Stratford Justices Ex p Watney Mann (Midlands) Ltd [1976] 1 WLR 1101 (QB)
Shelfer v City of London Electric Lighting Co (No.1) [1895] 1 Ch 287 (CA)
Sturges v Bridgman (1879) 11 Ch D 852 (Ch)
Watson v Croft Promo-Sport Ltd [2009] EWCA Civ 15, [2009] 3 All ER 249

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Secondary Sources
Books
McCracken R, Jones G and Pereira J, Statutory Nuisance (3rd edn, Bloomsbury Professional Ltd
2012)
Turner C and Hodge S, Unlocking Torts (3rd edn, Hodder Education 2010)
Articles
Bishop P, ‘Inadequate sound insulation: does the law of nuisance provide an effective remedy?’
(2005) ENVLREUK 238
–– McManus F, ‘Noise: common law controls’ (1995) SPEL 48
Other Secondary Sources
World Health Organisation, Night Noise Guidelines for Europe (WHO Regional Office for Europe,
2009)

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