Don’t be a newcomer

One of the best known judgment in the English speaking world is Miller v Jackson [1977] QB 966. The start of the judgment of Denning LJ (for it is he) is worth setting out, just to remind you all:

In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, lie has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.

So the lesson is, of course, don’t be a newcomer. In a much less well-written judgment, the ECtHR has come to a similar judgment in Maempel v Malta 24202/10. The facts are quite simple. The Maempel family had bought a house in rural Malta. Local villagers would organise fireworks displays throughout the year (perhaps totalling two weeks a year). The Maempel family complained that the noise amounted to environmental pollution of the sort to engage art.8 and, in any event, that the fireworks were causing damage to their house.

Complaints to the police achieved very little, even though an independent committee recommended that the police take certain steps to prevent, or at least, ameliorate the problem. Domestic proceedings were similarly ineffective and so they complained to the ECtHR, alleging breaches of Art.8.

The application was dismissed. Whilst the noise levels were sufficient serious to engage art.8, the interference with the rights of the Maempel family was proportionate, taking into account the limited occasions on which the noise occurred and the absence of any real evidence of damage to their property. In addition, it was highly material that they had bought their house knowing of the firework displays. So there. Don’t be a newcomer.

But, to my mind, the more interesting point is in para.63. You’ll have noticed that this case is about private parties (the Maempel family and the villagers), and not, in direct terms, about the State. This doesn’t really bother the ECtHR as, in its view, the key question is whether the legal system as a whole is set up to properly balance the rights of the private parties, taking art.8 into account. This is a pretty common observation in the context of art.8 environmental pollution cases (see, e.g. Moreno Gómez v. Spain, no. 4143/02), and it leads me to wonder if it can be used in some of the more interesting art.8 cases, e.g. private sector possession proceedings…

m4s0n501
Posted in FLW case note, Housing law - All, Nuisance and tagged , , .

About J

J is a barrister in London. He loves service charges and all things leasehold law related. He also likes beating rogue landlords and mortgage companies.

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