As summer comes to an end, the number of people who go on holiday to take a break from the hustle and bustle of their daily working lives grinds to a halt for another year. Thanks to the internet, it’s now much easier to find out extensive details about a place before we book it, making the holiday experience less stressful overall. Nevertheless, our choice of location is usually indicative of the type of break we expect to have. For instance, we might expect a stay in a town or city to be less relaxing than staying in a beachside villa.
The case in today’s article hinges on a private nuisance dispute between a holiday property owner and a hot food takeaway shop, both of which were located in the tourist friendly town of Cheltenham. The claimant, a property owner, brought a claim to the Technology and Construction Court against the property holding company, Windrush Riverside Properties Ltd, over private nuisance based on noise and odour emissions from a neighbouring business premises owned by the defendant. The trial was held in July 2022.
The main issue to be decided in this case was: is the claimant entitled to relief for private nuisance?
Keep reading to learn more about the case and the outcome of the dispute.
Background
Mrs Ray is the owner of a property in Cheltenham which she acquired in 1996 (Kevinscot). Meanwhile, Windrush, the defendant, was the owner of a property (St Kevin’s) which adjoined with Kevinscot at the rear of the premises.
Between the early 2000s and 2015, Kevinscot was used as a walled garden and shop which focused on sustainability and green issues. In 2015, it was adapted into a holiday premises which was suitable for 4 bedrooms and could also be occupied by disabled persons. Expenses were incurred for marketing the property.
At the time that Windrush acquired the property in 2006, the property was occupied by two separate tenants. This consisted of a tearoom, café, and fish and chip takeaway in one building as well as a newsagent in the other building. In 2016, Windrush obtained planning permission for the construction of a single-story extension and other alterations to the restaurant.
The newsagents was then replaced by a hot food takeaway after their departure from the premises, which understandably meant that a number of works were required. Windrush’s associated business, De La Haye Restaurant’s (DLHR) took over the running of the restaurant.
The private nuisance case
This was the catalyst for the point of contention. The works which took place in converting the newsagents to a hot food takeaway required the installation of air intake and extraction fans and flues, air conditioning units and a detached refrigeration unit at St Kevin’s (known as “the Mechanical Plant”).
According to Mrs Ray, during the period of operation for the food business between March 2018 and April 2020 (until its closure due to the pandemic), the noise and disruption from the Mechanical Plant was significant enough as to interfere unreasonably with the use and enjoyment of her holiday property, Kevinscot. Mrs Ray claimed that the disruption to the holiday property was so severe that she was unable to market Kevinscot as a holiday property. She subsequently removed it from the letting market. However, she was able to let it as an assured shorthold tenancy in November 2018 to a family member and godson, Mr James Tongue.
Windrush were served with an abatement notice around August 2018 under section 80 of the Environmental Protect Act 1990, requiring the “abatement of noise, amounting to a statutory nuisance, from the operation of the ““ventilation/extraction/ refrigeration system at the rear of [St Kevins] where there is a boundary with [Kevinscot]”” within 8 weeks of the notice.” This abatement notice was not appealed by Windrush.
The judgement
The court claimed that the claimant had, chiefly, failed to establish the alleged nuisance by the defendant, Windrush. Furthermore, the atmosphere of peace and tranquillity which the claimant had attempted to cultivate was not compatible with the atmosphere of the neighbourhood in question. Indeed, it was therefore not reasonable for Mrs Ray to expect that her eco retreat could exist in the location without the impact of DLHR’s commercial operations.
The claimant’s property was located in what was, for many years in fact, a busy and popular tourist destination. In addition to the tourists who stayed in Mrs Ray’s accommodation requiring food outlets during their visit, Mrs Ray’s property itself benefitted hugely from being in a popular tourist spot in Cheltenham. There were also five pre-existing hot-food takeaways in the areas, so the existence of DLHR’s restaurant was certainly not an exception. While the level of smell and noise was seen to be a matter of factual evidence by the judge, the real question was whether the level of noise or odour amounted to being a nuisance.
The court found that there was a significant level of difference of perception between the witnesses in terms of the level of noise and/or odour generated by the Mechanical Plant. Mrs Ray found that it was difficult to hold a conversation and cooking odours hung in the air while the Mechanical Plant was in operation. This was at odds with the claims made by Mr De La Haye.
While the court decided that the noise and odours which emanated from the premises would be of an annoyance to anyone staying at Kevinscot, Mrs Ray’s perception of the Mechanical Plant remained fixed despite the measures taken by Windrush to reduce the level of noise. The court also highlighted how this was illustrated by Mrs Ray’s desire to remove the Mechanical Plant despite it no longer being in operation.
Property owner was able to continue letting the holiday home
It is not clear that Windrush interfered with Mrs Ray’s level of “reasonable enjoyment” of Kevinscot, as she was able to let the property as a holiday home to tenants who were prepared to put up with a certain degree of discomfort and interference. Mr Tongue, the tenant, provided evidence that he and his family could both live and work around the noise and smell.
Mrs Ray continued to let Kevinscot under the AST following the end of the tenancy period, further indicating that her rights had not been interfered with in the period before. Furthermore, her decision and ability to let the property as an Assured Shorthold Tenancy (AST) indicates that violate Mrs Ray’s ownership rights in a manner which supports her claim.
The claim was therefore dismissed by the Technology and Construction Court.
Our thoughts
Overall, while Mrs Ray may be entitled to a degree of sympathy after owning the property for a number of years before the arrival of the restaurant, her expectations surrounding the level of noise and odour were seemingly very unrealistic.
These expectations arose primarily from Mrs Ray’s past usage of the property as an eco-friendly shop and walled garden which was designed to be a place of peace and tranquillity for visitors, which the court found to have shaped Ray’s expectations for the holiday property she converted the shop into.
The judgements mentioned previously in this article which the Technology and Construction Court came to, seem justified given the weight of evidence involved, including the property’s usage as an assured shorthold tenancy once Mrs Ray had decided it could no longer be used as a holiday property.
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