“The High Court shall hear and determine the question arising on the case (or the case as amended) and shall— (a) reverse, affirm or amend the determination in respect of which the case has been stated; or (b) remit the matter to the magistrates' court, or the Crown Court, with the opinion of the High Court, and may make such other order in relation to the matter (including as to costs) as it thinks fit.”
“22. Courts have adopted varying phraseology to express the point that the interference with the use of the claimant's land must exceed a minimum level of seriousness to justify the law's intervention. The terms “real”, “substantial”, “material” and “significant” have all been used. Put the other way round, the courts will not entertain claims for minor annoyances. As Lord Wensleydale said in St Helen's Smelting Co v Tipping (1865) 11 HL Cas 642, 653–654 : “the law does not regard trifling and small inconveniences, but only regards sensible inconveniences, injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected.” 23. The test is objective. What amounts to a material or substantial interference is not judged by what the claimant finds annoying or inconvenient but by the standards of an ordinary or average person in the claimant's position. As famously expressed by Knight Bruce V-C in Walter v Selfe (1851) 4 De G & Sm 315, 322, the question is whether the interference ought to be considered a material inconvenience “not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people”; see also Barr v Biffa Waste Services Ltd[2013] QB 455 , para 36 (ii). The objective nature of the test reflects the fact that the interest protected by the law of private nuisance is the utility of land, and not the bodily security or comfort of the particular individuals occupying it: see para 11 above… 108… people vary significantly in their sensitivity to noise, not only as to volume but as to different types of sound. There are smells which some people find seriously unpleasant and others do not. That is not to mention the cases of nuisance involving offensive sights. In none of these types of case is there a scientific test which a judge can apply, or more specific legal guidance which an appellate court can give, to identify where the line should be drawn. In each case the court just has to make a judgment about whether the nature and degree of interference exceeds what an ordinary person would regard as acceptable. I think that in practice courts seek to make allowance for variations in normal human reactions by building a margin into their assessment and requiring quite a high level of interference before finding an interference with the ordinary use of property to be sufficiently serious to amount to a nuisance. But of course there will be some finely balanced cases in which different judges applying the same test to the same facts may reach different conclusions. The possibility of such disagreement is inherent in the task of judging.”
“27. The other aspect of this core principle is that, even where the defendant's activity substantially interferes with the ordinary use and enjoyment of the claimant's land, it will not give rise to liability if the activity is itself no more than an ordinary use of the defendant's own land. In the leading case of Bamford v Turnley (1862) 3 B & S 66, 83 , Bramwell B formulated a test which has since been regularly cited, approved and applied, including at the highest level. He gave what were then contemporary examples of acts such as “burning weeds, emptying cess-pools” and “making noises during repairs” which (unless done maliciously and without cause) would not be treated as nuisances, even when they caused material inconvenience or discomfort to neighbouring owners. He then said at pp 83–84: “There must be, then, some principle on which such cases must be excepted. It seems to me that that principle may be deduced from the character of these cases, and is this, viz, that those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action .” (Emphasis added.)
“There is an obvious necessity for such a principle as I have mentioned. It is as much for the advantage of one owner as of another; for the very nuisance the one complains of, as the result of the ordinary use of his neighbour's land, he himself will create in the ordinary use of his own, and the reciprocal nuisances are of a comparatively trifling character. The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live.” 28. Subsequent cases have shown that this justification is not limited, as Bramwell B suggested, to situations where the reciprocal nuisances “are of a comparatively trifling character”
“The tenants can hear not only the neighbours’ televisions and their babies crying but their coming and going, their cooking and cleaning, their quarrels and their love-making. The lack of privacy causes tension and distress.”
“… I do not think that the normal use of a residential flat can possibly be a nuisance to the neighbours. If it were, we would have the absurd position that each, behaving normally and reasonably, was a nuisance to the other.” “There must be, then, some principle on which such cases must be excepted. It seems to me that that principle may be deduced from the character of these cases, and is this, viz, that those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action .” (Emphasis added.)
“The tenants can hear not only the neighbours’ televisions and their babies crying but their coming and going, their cooking and cleaning, their quarrels and their love-making. The lack of privacy causes tension and distress.”
“38. It is also well settled that what is a “common and ordinary use of land” is to be judged having regard to the character of the locality.”
“13. The test of what is a ‘substantial’ interference is an objective one. What amounts to a material or substantial interference is not judged by what the claimant finds annoying or inconvenient but by the standards of an ordinary or average person in the claimant’s position. As was expressed by Knight Bruce V-C in Walter v Selfe (1851) 4 De G & Sm 315, 322, the question is whether the interference ought to be considered a material inconvenience “not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people”; see also Barr v Biffa Waste Services Ltd[2013] QB 455 , para 36(ii). The objective nature of the test reflects the fact that the interest protected by the law of private nuisance is the utility of land, and not the bodily security or comfort of the particular individuals occupying it (para 23)... ‘the reason for applying an objective test when assessing whether the defendant’s activity causes sufficiently serious interference to amount to a nuisance is that the injury is, strictly speaking, to the utility and amenity value of the claimant’s land, and not to the comfort of the individuals who are occupying it. The particular sensitivities or idiosyncrasies of those individuals are therefore not relevant, and the law measures the extent of the interference by reference to the sensibilities of an average or ordinary person. By contrast, it is the utility of the actual land, including the buildings actually constructed on it, for which the law of private nuisance provides protection – not for some hypothetical building of “average” or “ordinary” construction and design’: Fearn para [68]”
“I heard evidence from Mr. Smith who is an experienced Environmental Health Officer. Mr Smith listened to 42 recordings of the noise complained of after installing a Rion NNR 52 noise monitor in accordance with manufacturers’ guidelines. The monitor was calibrated prior to and after installation. He listened to and evaluated recordings which contained peak noise limits and highest noise levels displayed on corresponding noise on the noise software. This was in order to target and select the most intrusive recordings made. This was a sampling strategy which he has always used where many hours of audio recordings have been made.He opined that the noise coming through the wall was faint, low level and muffled. Mr. Smith states in his report: “Most recordings I listened to were barely audible and distinctly muffled due to noise transmission through the party wall. From a total of 64 audio recordings, I listened to 42, which I deemed to be a representative sample considering the number of recordings made. Most recordings are very quiet and barely discernible above the background noise level in the study the equipment was located. On occasion infrequent noises of banging, children laughing, playing, shouting and crying could be picked out when concentrating hard.”
“I find that Mr Dennis and Miss Andre have exaggerated their responses to the noise to fit their case. Their responses simply do not fit the recorded evidence.”
“I heard evidence from Mr. Clarke and Mr Randall and have carefully considered the joint expert reports submitted by the experts. Mr Clarke and Mr Randall agreed that the levels of noise transmitted from the nursery are relatively low. Mr Clarke added in his oral evidence that you would have to hold your breath to hear anything and that when he and Mr Clark jointly visited number 52 Abington Grove as well as the nursery next door they had stood still. They were silent when a song was being played in the nursery. They added that if anyone had spoken it would have been barely audible. I accept this to be accurate and true reflection of the noise. Mr Randall produces a graph from February 2022 in which he says that when number 52 was empty for 24 hours the LAeq level did not exceed 30 decibels during the day and he compares (in his reports) that with an indicative level considered suitable for a bedroom in a new build property of 35 decibels. 25. I place significant weight upon the conclusions reached by Mr Clarke when he deals in his report with the evidence presented within the RandTech Report compiled by Mr Randall. The sounds heard on the recordings are predominantly of a low level of children playing and laughing with the nursery staff. There is a high level of background hiss and distinct levels of what appear to be internal activity within 52 Abington Grove. Mr Clarke listened to the audios and it appears that whoever was taking the readings is moving, walking and perhaps opening doors or windows to monitor the sound. These events appeared audibly louder on the recordings than the sound of the children playing and the higher peaks observed on the graph and heard in the order recordings are from internal activity by the occupants of 52 Abington Grove which have erroneously been attributed to nursery activity.”
“The noise levels coming through the wall are not a substantial interference. The low level of sound coming through the wall would not be annoying or inconvenient to the average person. The noise would be barely audible if the average person was to be having conversations or had the television turned on. 39. For the reasons set out above I am not sure the noise transmitted into Number 52 is beyond that which, objectively, a normal person would find it reasonable to have to put up with.”
“Mr Dennis and Miss Andre by their own admission have spent hours and hours each day listening out for noise from next door. They have followed that by writing down descriptions of what they purport to hear and then typing those notes up into logs. They have gone as far as counting the number of steps and the number of times doors which have closed. They have persistently and possessively stood in the house counting and recording every noise. Miss Andre stood still and timed an alarm as 86 seconds. Mr Dennis has blown a whistle at a small group of children who are playing in nursery garden, he has leaned out of the window overlooking the garden laughing and seeing what the children play and regularly stands in the window watching the staff and the children with a notebook in hand. They literally wait for noises to occur. That is not, objectively, normal. The average person does not sit and wait for noises to occur in this way. The prosecutors have engineered a situation which is not normal.”
“The prosecutors in this case are not “the average person”
“In the absence of a substantial challenge as to the independence or credibility of the corroborating witnesses called by the Prosecutors, was I right to find that they were not independent or credible without having given each of these witnesses the opportunity to have commented on my objection to their impartiality or reliability, having also found their evidence to have been inconsistent with the objective data (as I did in paragraph 29 of the Judgment)?”
“Those witnesses are in no means independent and their evidence is also inconsistent with the objective data. It is abundantly clear that whoever lived at number 52 spent a considerable amount of time talking amongst themselves and I have no doubt that this has infected their impartiality. I reject their evidence. This is especially so because despite what they perceived to be excessive noise coming from the nursery they still went back to number 52 to pay visits, Miss Dragulin stating that she visits almost daily when she has time. It is not credible that she would do that if the noise was to the level alleged by the prosecution witnesses.”
“52. In a perfect world, any ground for doubting the evidence of a witness ought to be put to him, and a judge should only rely on a ground for disbelieving a witness which that witness has had an opportunity of explaining. However, the world is not perfect, and, while both points remain ideals which should always be in the minds of cross-examiners and trial judges, they cannot be absolute requirements in every case. Even in a very full trial, it may often be disproportionate and unrealistic to expect a cross-examiner to put every possible reason for disbelieving a witness to that witness, especially in a complex case, and it may be particularly difficult to do so in a case such as this, where the Judge sensibly rationed the time for cross-examination and the witness concerned needed an interpreter. Once it is accepted that not every point may be put, it is inevitable that there will be cases where a point which strikes the judge as a significant reason for disbelieving some evidence when he comes to give judgment, has not been put to the witness who gave it.”