Noise nuisance: a path less trodden

Few things can ruin a homeowner’s enjoyment of their property like repeated noise nuisance from a neighbouring property. Noise nuisance has long been a cause of disputes between neighbours and no doubt always will. Anecdotally, noise nuisance disputes seem to have increased recently, perhaps due to time spent at home during the lockdowns and the trend for working from home.

Those enduring noisy neighbours may find that their local authority fails to take adequate or swift action to help them and naturally may wish to consider the available legal options. Action in the civil courts is possible (although can be time consuming and costly) but a frequently overlooked remedy is also available in the criminal context.

Section 82 of the Environmental Protection Act 1990 (“the Act”) permits individuals suffering a statutory nuisance (listed at section 79 of the Act) to pursue a private prosecution in the Magistrates’ Court. The list of statutory nuisances includes “noise emitted from premises so as to be prejudicial to health or a nuisance” and “noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street”.

The procedure under section 82 has, for those suffering from repeated noise nuisance, two distinct advantages over civil proceedings. First, the process is relatively swift in comparison. The purpose of the legislation (according to Rafferty J in Richard Hewlings v McLean Homes East Anglia Ltd) is “to provide a summary procedure for lay people to gain relief from nuisances”. In the earlier case of Hall v Hull, Mitchell J commented that the legislative intention was to create “a speedy and effective remedy”.

The first step is service of a written notice on the prospective defendant, which must give a minimum of a mere three days’ notice, that a complaint may be lodged with the Magistrates’ Court. If such a complaint is lodged, the Magistrates, if satisfied that there is an arguable case, will issue a summons to the defendant requiring them to attend a hearing. There is no prescribed form required when making a complaint. If the defendant pleads not guilty, the matter will proceed to a trial.

For the prosecution to be successful the complainant must prove beyond reasonable doubt that the nuisance exists or that it has been abated but is likely to recur. Each case will be determined on its own facts. As with all complaints in this area (including claims through the civil courts) care should be taken to keep full accurate accounts of the disturbance, where possible supported by recordings and a clear log showing the timing of the incidents.

The other significant advantage for a party adopting the section 82 procedure is that, generally speaking, irrespective of the outcome, they will not be required to pay the defendant’s costs. Whereas, if the prosecution is successful, the defendant will be required to pay the complainant’s reasonable and properly incurred legal costs. A successful prosecution is also likely to result in the defendant being ordered to pay a fine, compensation of up to £5,000 and, perhaps most significantly for the defendant, a criminal conviction. It is for this reason that service of the notice alone can act as an effective deterrent.

For a complainant who has been enduring noise nuisance, the most significant outcome of a successful prosecution is likely to be that the Magistrates, if satisfied that the nuisance exits or is likely to recur, will make an order requiring the defendant to abate the nuisance within a specified time and / or prohibiting a recurrence of the nuisance.

A complainant should be aware that, as with all contested legal proceedings, there is a degree of risk. Noise nuisance disputes between neighbours are also very fact sensitive. Litigation should always be considered a last resort. Nonetheless, the section 82 process can reduce some of that risk in terms of time incurred and exposure to costs. For that reason, this underused and potentially powerful process is something that the victims of noise nuisance should give consideration.

If you require further information about anything covered in this insight, please contact Jo Ord, Graham Anderson, Hoi-Yee Roper or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, June 2022