Action when noise is a nuisance

A person affected by the noise can try to communicate with the person who is causing it, so that the noise is lowered or stopped. The person responsible for the noise may not realise they are causing a disturbance.

If appropriate, the person affected by the noise could raise the matter with other people aggrieved by it and jointly approach the person responsible for the noise.

In some situations, the direct approach may not be an option. The person affected by the noise may not feel able or willing to discuss the issue with the person responsible for the noise. In this situation, a form of alternative dispute resolution (ADR), such as mediation, may be appropriate. In mediation, a trained mediator listens to the views of both parties and helps them to reach an agreement. For mediation to take place, both parties must be willing to engage in it to seek a solution.

Noise may constitute nuisance. Nuisance is a common law tort, or civil wrong, that developed through case law and statute law. Any private individual whose right of enjoyment over their land is hindered by the actions (or inaction) of neighbours can bring a claim in nuisance against the occupiers of the property.

A successful action may result in the abatement of the nuisance, damages, or an injunction.

Public and private nuisance

There are two types of common law nuisance:

• public nuisance – a common law offence: this is where an act or failure to act adversely affects the comfort or quality of life of the public generally or a class of citizens

• private nuisance – a common law tort: this is a substantial interference by the owner or occupier of a property with the use and enjoyment of neighbouring premises. This is the most relevant to an occupier of land affected by noise coming from neighbouring land.

The same definitions above apply to cases of statutory nuisance.[1]

Noise nuisance

Nuisance has been found in a number of cases relating to noise, including:

• building[2] and demolition[3] work

• cockerels[4]

• lorries[5]

• noise at night, even though the disturbance was for one night only[6]

• noise from a car auction site,[7] or a speedway and stock-car racing stadium[8]

• excessive dog barking and shouting[9]

In one case,[10] a council built a housing estate with a children's playground next to the claimant's garden. The playground was used continually by children of all ages, the noise of which disturbed the claimant and his wife. The court awarded £200 damages, and granted an injunction limiting the usage of the playground to children under 13 and between the hours of 10am and 6.30pm.

Tenants with noisy neighbours may be able to take action against the perpetrators directly. In one case, it was decided that the freeholder was not liable for the nuisance where a leaseholder had carried out alterations to a flat in breach of their lease agreement and installed inadequately sound-proofed flooring. However, the affected tenant (a long leaseholder of the flat below) was able to bring proceedings for damages and an application for an injunction requiring works to remedy the nuisance against the leaseholder and the occupiers of the flat above (who were found to have contributed to the nuisance).[11]

An occupier who is affected by noise caused by a neighbouring tenant will have difficulty taking action against the tenant's landlord. This is because a landlord who has granted a tenancy is no longer in possession of the property and does not have control over it. Therefore, in most cases they are not liable for the nuisance caused by the tenant.

An occupier may be able to take action against the neighbour's landlord if the neighbour is a licensee and does not have exclusive possession of their home. In one case, where the owner of a property had allowed her daughter to live there on a bare licence (as opposed to under a tenancy), the owner/landlord was found to be liable for the nuisance caused by the daughter and her dog because, on the facts, the landlord had retained possession of and control over the property throughout her daughter's residence there and had not acted to abate it after becoming aware of the nuisance.[12]

An occupier cannot claim damages against the landlord for noise nuisance that is non-deliberate, for example noise caused by poor sound insulation, because no nuisance arises as a result of the normal and ordinary use of premises and the landlord is not able to authorise it expressly.[13]

Similarly, if the landlord fails to act against a tenant in cases of an alleged breach of tenancy (for example the tenant causes disturbance to a neighbour), the occupier affected by the noise will not be able to take action against the landlord for nuisance or negligence.[14]

The Supreme Court laid down a number of principles applicable when considering a claim of private nuisance by noise.

These are:[15]

• whether noise constitutes nuisance must be assessed by reference to the character of the locality because what can constitute nuisance in one area may not be nuisance in another

• the activity creating the noise can be part of the character of the locality but only to the extent that they do not cause nuisance

• having planning permission to carry out an activity which causes nuisance by noise is not a defence, although the terms and conditions of the planning permission might be relevant in some cases

• it is not a defence to show that the complainant 'came to the nuisance' (for example moved into a property after the nuisance had started), unless they changed the use of their land/property and as a result the pre-existing activity became a nuisance, but was not before

• the normal remedy in a case of nuisance is an injunction to restrain the activity causing nuisance (in addition to damages for the past nuisance), but in presence of the right circumstances the court has discretion to award damages in lieu of an injunction. In such cases, the damages will reflect the reduction in value of the complainant's property resulting from the continuation of the nuisance

• if the perpetrator can show that the noisy activity complained of has been carried out for 20 years, not necessarily continuously, this can establish a right to commit noise by prescription. This will be a defence to claim of private nuisance by noise

Generally, the police are not responsible for dealing with noise at night. Instead, in most situations, the local council's environmental health service is responsible by using its general powers under the Environmental Protection Act 1990.

In addition, using the Noise Act 1996, councils can take swift action against occupiers of premises who create excessive and continuous noise at night, for example at a party or with music equipment. If appropriate, the council can confiscate equipment causing the noise.

Implementation of the Noise Act 1996 is voluntary. A council is not obliged to take action under the Act.[16] Initially, for the Act to apply, the council had to first declare that the Act was operative in part or all of its area. The Act then came into operation at least three months after the declaration was made. However, the power to investigate night noise has been made available to all councils whether or not they have adopted the provisions of the Noise Act 1996.[17]

For a complaint to be investigated, it must be made between 11pm and 7am and relate to excessive noise from a property at that time. A council officer, who is likely to be an environmental health officer, must take reasonable steps to investigate the complaint.[18] The officer needs to decide whether, if measured, the noise would exceed the level permitted for the particular situation.[19] If the officer decides it would, then they may serve a warning notice.[20]

The warning notice:[21]

• is served on any person who may be responsible for the noise, or, if not identifiable, is left at the property where the noise is coming from

• states that the officer considers that the noise exceeds, or may exceed, the permitted level

• warns that if the noise does not stop exceeding the permitted level in a period no earlier than ten minutes after the notice is served and before 7am, then any person who is responsible for the noise may be guilty of an offence

If the notice is not complied with, without reasonable excuse, then any person who is responsible for the noise is guilty of an offence and may be fined.[22] As an alternative to prosecution, the council can serve a fixed penalty notice. This notice gives the person responsible for the noise 14 days to pay a penalty, both in cases of domestic premises or licensed premises.[23]

In addition, if the notice is not complied with, then the officer can go into the property and seize the equipment that is causing it. If entry is refused, then the officer can obtain a warrant from a justice of the peace, giving authority to enter the property, by force if necessary. Any person who obstructs the officer is liable to a fine.[24]

Any equipment that is seized by the council can be kept for up to:[25]

• 28 days

• if a fixed penalty notice is served, then until the fixed penalty is paid, or

• if there are court proceedings for an offence, then until the proceedings end or the court orders otherwise

Noise can, in some circumstances, be interpreted as a form of antisocial behaviour.

The Crime and Disorder Act 1998 defines antisocial behaviour as acting in a way that causes, or is likely to cause, harassment, alarm or distress to a person not of the same household.[26] For noise to be interpreted as antisocial, it is likely to be extreme or to take place in conjunction with other antisocial behaviour. For example, noisy parties that take place as part of a pattern of disruptive behaviour that affects neighbours.

The local council, registered social landlords and the police can take action against antisocial behaviour.

An occupier found guilty of antisocial behaviour may, depending on the particular circumstances, be:

• fined

• subject to an injunction, such as an antisocial behaviour order[27]

• imprisoned

• subject to a curfew order[28] or a parenting order,[29] in the case of groups of children

• evicted, in the case of a tenant

Many tenancy agreements have a clause that states that the tenant is to not cause a nuisance or annoyance to neighbours. The grounds on which a possession order can be made against a secure, assured or regulated tenants include a discretionary ground for possession specifically related to antisocial behaviour. In addition, a mandatory ground for possession is available against a secure or assured tenant, where the tenant, or anyone living in or visiting the property, has been convicted of an offence under section 80(4) or 82(8) of the Environmental Health Act 1990 as a result of breaching an abatement notice or court order in relation to noise nuisance committed on or after 20 October 2014.

An occupier who is disturbed by noise from a tenant should complain to the landlord of that tenant. The landlord may try to persuade the tenant to desist from such behaviour. If the behaviour continues, or the antisocial behaviour is serious enough, the landlord may attempt to evict the tenant. In one case, a possession order was made due to incidents of antisocial behaviour, which included loud music, as well as drunkenness, rubbish being thrown from balconies and an incident with a machete.[30]

However, if the landlord does not act on the complaint of an occupier, then the occupier does not have a claim in nuisance or negligence against the landlord,[31] or for breach of the covenant for quiet enjoyment.[32]

The police are not usually responsible for dealing with noise, for example noisy parties, loud music. Instead, in most situations, the local council's environmental health department is responsible.

However, in some situations, the police should be contacted. This could be because the noise is:

• a type of antisocial behaviour

• due to the committal of a crime, for example criminal damage

• a crime in itself, for example noisy vehicle exhausts or a horn being sounded between 11pm and 7am by a vehicle in a restricted road[33]