Complaints about excessive noise

Having planning permission to operate your business on your site does not excuse you from neighbours' complaints about excessive noise, even if you were already there when they moved in. Sarah Eneberi explains.

THE PROBLEM

I own a karting circuit and I have received complaints about excessive noise from the occupants of two nearby houses. I have been operating the circuit for years and I have planning permission which authorises karting for a specific number of days per year. Surely I can tell the complainants that they simply have to live with the noise?

THE LAW

This is the sort of issue which can affect many owners who think that as long as they have valid planning permission they have a right to use their property as they wish. However, this is not the case. Private nuisance arises when a person does something on his own land, which he is lawfully entitled to do but which becomes a problem when those activities affect a neighbours' use and enjoyment of his land.

The grant of planning permission does not sanction an activity which would otherwise cause a nuisance. It is also not a defence that the nuisance was already occurring before the complainants moved to the area.

EXPERT ADVICE

Unfortunately, the fact that you have valid planning permission which states that you can use your property as a karting circuit does not necessarily mean you have the right to use the land in accordance with the planning permission, if it is found that the noise you create amounts to a nuisance.

The law of nuisance is governed by an assumption of "give and take" which seeks to address the balance of interest between different occupiers of land. A court deciding a nuisance claim will take into account the location, the character of the area, public benefit issues - if any - and the nuisance those activities causes.

A recent Court of Appeal case reaffirmed two established principles, namely that a planning authority has no power to authorise a nuisance nor can planning permission override a neighbours' right not to be disturbed by noise. The courts do accept the proposition that in certain circumstances the grant and implementation of planning permission can change the character of a locality and as such you would not be liable for a claim in nuisance.

Such a change does not happen very often but may arise where your planning permission was granted following a public inquiry. In these circumstances, a court might accept that the character of your locality has been permanently changed because the balance of interest issue was reviewed at the time of the inquiry.

CHECK LIST

• Check that you are complying with your planning permission.
• Check whether your planning permission was granted following a public inquiry.
• Read the Local Authority's Development Plan which sets out the framework that guides land use planning for your area. Has the character of the area changed since your planning permission was implemented?
• Talk to the complainant. Can you reduce the noise or take other preventive measures so that the noise levels are tolerable?

BEWARE!

Don't assume that because you have obtained planning permission which permits you to use your property in a certain way that you will not be liable for nuisance. Furthermore, compensation instead of an order to stop or restrict trading, will only be awarded under very exceptional circumstances if it is held that you are causing a nuisance.

If your activities do generate noise or impact upon your surrounding area, it is sensible to consider the effect any new residential planning applications may have on your business. In principle, it is a valid reason to object to a new planning application on the basis that the proposed development is not suitable for the area, even where the unsuitability arises because of the nature of your business.

CONTACT

Sarah Eneberi, head of property, CANDEY LLP
Tel: +44 020 3328 7775
E-mail:seneberi@candeyllp.com
Website:www.candeyllp.com