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What Constitutes Private Nuisance?

on Tuesday, 02 November 2021.

The High Court has recently considered a case of nuisance against the Ministry of Defence for noise produced by aircraft. This article looks into the specifics of that case and also what it means for these type of hearings going forward.

The law of nuisance can be divided into private nuisance and public nuisance. These are not mutually exclusive, although a collection of private nuisances can constitute a public nuisance.

A private nuisance can fall into one of three categories:

  • encroachment on a neighbour's land
  • direct physical injury to a neighbour's land
  • interference with a neighbour's quiet enjoyment of their land

The Court of Appeal has confirmed that these categories are not intended to be rigid categorisations of nuisance, since new examples can always arise in new social conditions and it is not necessary for a nuisance to fall squarely into any one of these categories.

The Case Against the Ministry of Defence

On 12 August 2021, the High Court dismissed a claim for common law nuisance against the Ministry of Defence (MoD). The land in question was previously used for water supply and was situated next to the MoD's RAF Mona, which acted as a relief airport for nearby RAF Valley. The MoD's land was used by very loud jet aircraft and the claimants had unsuccessfully tried to set up a holiday park on their neighbouring premises. The noise had not interfered with the enjoyment of the land when it was used for water supply but the claimants had introduced a noise-sensitive use by the running of their holiday park business.

The Court found no actionable nuisance. The MoD's activity had been conducted in the location for 70 years and was deemed to be an 'ordinary use of the land'. In addition, there was significant public interest in training fast jet pilots for defence purposes and the MoD had taken all reasonable steps to ensure that the noise was kept to a reasonable minimum.

The Court also found no breach of human rights under Article 8, European Convention on Human Rights (ECHR) (claim for right to respect for private and family life). Although the aircraft noise did constitute an interference, it was deemed to be accordance with the law and necessary in the interests of national security; thus a proper balance had been struck.

In addition, the MoD operated a noise amelioration scheme for householders. Jet planes also had to avoid the most sensitive parts of the claimants' property. There was therefore no breach of Article 1 of the first Protocol, ECHR (right to peaceful enjoyment of possessions).

What the Ruling Teaches Us

The claimants had purchased land with limited use due to the fact that the aircraft noise was already present at the time of purchase. Developing something new with the hope of running future profitable businesses was not a possession that was capable of being protected. It is therefore always worth ensuring you carry out proper due diligence when purchasing property or developing existing property for a change of use to establish if there are any factors or limitations which would impact on the proposed use.

If you need assistance with private nuisance when purchasing property, do not hesitate to contact Aditi Sawjani in our Real Estate team on 01923 919 319, or complete the form below.

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