The recent decision handed down in Ray v Windrush, lays down important guidance for claims against neighbours for smells and noise.
| What can you do if a neighbouring business causes you problems with its noise or smell?
As a first port of call, your local council may be able to assist.
If the council cannot help, you may be able to make a claim against them as a result of the noise or smells as a private nuisance claim. Private nuisance usually occurs where a person’s quiet enjoyment of their land or property is interfered with. This can be by noise, smell or by the causing of actual physical damage to their property. For example, water flooding from a neighbouring property.
| Who can make a nuisance claim for noise or smells?
Only a person with rights to the land affected has the right to sue. This will usually be the freeholder or tenants in possession. The person bringing the claim must prove that they have suffered some form of damage as a result of the nuisance. They will then only be able to recover for damage that was reasonably foreseeable and which affects the use of their land.
| Reasonableness
A claim for nuisance must be reasonable. The courts expect a balance between the reasonableness of the nuisance (e.g. hours of operation or volume) and its impact upon the claimant.
If the defendant is found to be using their property unreasonably, the claimant may be able to pursue a claim for damages.
| Can food smells from cooking constitute a nuisance?
The Ray v Windrush case was brought by Mrs. Ray (“the Claimant”), who is the owner of a holiday let property in Bourton-on-the-Water, Cheltenham. Her claim was based on nuisance caused by noise and smells from a neighbouring takeaway owned by the Defendant.
Mrs Ray claimed that during the takeaway’s hours of operation, the noise and smells from the takeaway interfered unreasonably with the use and enjoyment of her property. As a result, she said that she was unable to market the property as a holiday let. She claimed for lost rental and other related sums.
Mrs Ray advertised her holiday let as located in a calm and meditative location. The Court found that this was not accurate and in fact her property was located in a busy tourist spot.
Mrs Ray later let the property to a member of her family under an assured shorthold tenancy (“AST”). The Court found that, as Mrs Ray was able to let her property out on an AST, her rights had not been unduly interfered with.
The court noted that the Defendant’s shop had meant that the local food odours had intensified. However, it decided that the Claimant had failed to establish the nuisance alleged against the Defendant.
| Do you have a claim?
It is possible for an individual to bring a claim against a neighbour for smells or noise. Each case is different and will be dependent on the fact of reasonableness, the nature, duration and intensity of the nuisance.
If you are suffering nuisance from a neighbouring property, contact our property disputes team to discuss your nuisance claim on 0800 988 7756. Our specialist team have experience in dealing with nuisance claims for both commercial and residential clients.
