Whilst the majority of disputes about nuisance (i.e. causing an unreasonable disturbance through sound, smoke or smells) involve residential properties, what happens when business occupiers fall out? A recent case, Ray v Windrush Riverside Properties Ltd provides some useful guidance.
Mrs Ray bought her property in the High Street in Bourton on the Water in the early 2000s. As a keen environmentalist she adapted the property to highlight the benefits of leading a 'greener' lifestyle. In 2015 she applied to convert the property into a holiday letting. It was marketed as being an eco-friendly holiday retreat with a "tranquil, fresh-air garden".
Windrush bought an adjoining property is 2006. At the time of its purchase the site comprised a restaurant and a newsagent. When the newsagent tenant gave up their lease in 2017, Windrush decided to extend the restaurant building and convert the shop unit into a fish and chip shop. It obtained the necessary planning and listed building consents, carried out the works and opened the new business in around April 2018.
Whilst Mrs Ray did not make any objection to the original planning application, shortly after the new business opened she began to make complaints about disturbance from noise and smells being emitted from the new business. She then discovered that the developers carrying out the conversion works had not installed extractor fans in accordance with the original approved plans. Cotswold District Council issued an abatement notice to Windrush and there followed protracted discussions between Windrush and the Council, including a failed attempt to secure retrospective consent for the extraction system which had actually been installed. At the same time Mrs Ray brought court proceedings claiming damages for the impact that the chip shop had caused to her holiday letting business. She did let the property to some family members on an assured shorthold but nevertheless argued that this left her with a substantial shortfall on her potential earnings from the property together with other losses (such as business rates and other charges) whilst she had been unable to secure holiday lets because of the issues with the neighbouring property.
So what did the court decide? Perhaps surprisingly (for some) it decided that there was no claim for nuisance and that Mrs Ray was not entitled to damages. In reaching its conclusion the court considered the following:
- Location (in the sense of the broader setting, not the fact the properties are in the Cotswolds) was a significant factor. Despite the quaint associations, Bourton's High Street is far from tranquil. It is a busy road with a wide selection of shops and other restaurants close to the two properties. The court noted that many busloads of tourists arrive each day in high season. On that basis, the level of noise and disturbance that a local would experience would be proportionately higher than you might find elsewhere.
- The definition of 'nuisance' (as derived from the decided cases) involves an objective consideration of the activity being carried on and whether it is an unreasonable use, applying the standard of a 'reasonable person'. The court felt that in this case, Mrs Ray's attempt to offer a retreat style experience to her guests made her overly susceptible to claiming that Windrush's business was causing her a nuisance.
- The absence of planning permission does not automatically make an activity a nuisance. Mrs Ray argued that the fact that what Windrush built was not in the plans submitted for planning, and that the Council served enforcement notices, supported her nuisance claim. The court disagreed, and said that planning was largely irrelevant when considering these sorts of claim. The converse may equally be true; having planning permission to do something is not the same as saying that you are authorised to do something in a way which causes a nuisance to others.
The Birketts view
With all the changes going on in the world of motor retailing, getting the property strategy/side of the business right too, still remains key (and arguably more important than ever!) As an owner or occupier of commercial premises here are some key things for motor dealers to consider:
- If you are moving to a specific location consider its current and possible future uses. Are these consistent with the uses on adjoining properties?
- When making alterations it always makes sense to consult widely and bring adjoining owners along with you. Regardless of Windrush ultimately winning the case, the site has been empty for over two and a half years and a planned sale was unable to take place whilst the litigation was pending.
- If a dispute does arise, take early professional advice. Windrush's case was well supported with analysis from an independent expert of the likely impacts of noise and smells on neighbouring properties. This carried sway with the court, despite the previous actions of the Council to restrict the use of unauthorised installations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.