Ray v Windrush Riverside Properties Ltd (2022) EWHC 2210 (TCC)

An interesting trial judgment on a private nuisance claim that highlights the importance of the nature of the location and has a discussion of damages for non-resident claimants.

Ms Ray had a property on the High Street in Bourton-on-the-Water. The Defendant had an adjoining property. Ms Ray had previously used the property as “The Living Green Centre to demonstrate what Mrs Ray described as a “sustainable lifestyle demonstration”. It was open to day visitors who would visit its secluded walled garden and shop. The garden provided a peaceful haven for those visitors.” But in 2015, she obtained planning permission for a change of use to holiday accommodation. “The house was adapted so as to provide the 4 bedrooms. She incurred expenses in marketing the property, including commissioning a website design for the holiday let.” Ms Ray had never occupied the property herself.

The next door property had been a cafe/takeaway and a news agent. In 2016, the Defendant obtained “planning permission and listed building consent in June 2016 for the construction of a single storey extension and other alterations to the restaurant. In July 2017, following the departure of the second tenant and the closure of the newsagents, Windrush (again through Mr De Lay Haye) obtained on appeal permission for a change of use for a hot food takeaway in place of the newsagent. Building works at St Kevins were then undertaken to enable the part previously run as a newsagent to operate as a dedicated fish and chip takeaway with the rest of the premises being run as the enlarged Windrush Restaurant.”. The works included installation of air intake and extraction fans and flues, air conditioning units and a detached refrigeration unit. The restaurant and takeway opened in March/April 2018.

The restaurant and takeway closed in 2020 with the pandemic, and have not re-opened. It was common ground that the extraction fans and flues, air condition units and refrigeration unit were actually in breach of the planning permission in their construction. Further, the council had served a noise abatement notice in August 2018 in respect of the ventilation and refrigeration systems.

The restaurant and takeway was to be sold, with conditions relating to meeting the planing permission, but this had not completed before trial. The Defendant gave an  undertaking pre-trial that the use of the ventilation equipment would not re-start and that neither it nor any tenant would use the property in such a way as to cause an unreasonable interference with the use of Ms Ray’s property.

Ms Ray had not let the property for holiday lets, but did let it on an assured shorthold tenancy in November 2018, and the property remained tenanted.

Ms Ray claimed in nuisance for noise and odours affecting her property and in particular the garden. She claimed for general and special damages, on a ongoing basis, and for a mandatory order for the removal of the ventilation, air conditioning, extraction and refrigeration plant.

The claim in nuisance failed.

The character and locality of the area in Bourton-on-the-Water was found not to be one of ‘tranquility’ as pleaded by Ms Ray, but rather a busy tourist area with no residential occupation. Restaurants and takeaways were a part of the tourist nature of the area.

The character of the neighbourhood was inconsistent with the calm and meditative location which she wished to provide for her guests. Looking at her ownership position in isolation from neighbouring activity, clearly it was not objectively unreasonable for Mrs Ray to contemplate using Kevinscot in that way but, for the purposes of applying the law of nuisance and adopting the language in Walter v Selfe, the standards she had created for her the holiday let business mean that the allegation of nuisance has been presented from a position of “delicacy or fastidiousness”.

Ms Ray had described the impact on the garden in these terms in evidence

The impact of the noises, is that our garden can not be a place of relaxation, there is no peace. It is hard to hold a normal level conversation or enjoy bird song. The noises are irritating and impact on concentration and well being.

Our garden was designed as a haven for the environment and was like an oasis for all the years happily alongside the previous food businesses.

Secondly, Ms Ray had been able to let the property. The tenants were

to be taken to be average occupiers for the purposes of assessing whether or not there was a material interference with the standard of comfort ordinarily to be enjoyed by the occupier of the neighbouring property. Again, I recognise that Mrs Ray’s claim is predicated upon the longer-term letting to the Tongue family as being very much a second best option and indeed an act of mitigation of the loss of her holiday let business. However, at the liability stage, what is required to be shown is a material interference with the amenity of Kevinscot to be enjoyed by her. In circumstances where Mrs Ray was able to let the property having drawn the issues over DLHR’s operations to their attention, the Tongue family’s occupation provides reliable insight as to the standard of comfort reasonably to be expected by any other part-time occupiers of Kevinscot according to the “plain and sober and simple notions” to be adopted for that purpose.

That disposed of the claim. The activities of the restaurant, for all that the plant was in breach of planning permission, were not such as to amount to a material interference with Ms Ray’s reasonable enjoyment of her property (through profitable deployment) given the nature of the locality and the actual occupation.

Nonetheless, the court went on to address the damages claim, for completeness.

General damages – these had been raised at trial, but Ms Ray did not occupy the property, so there was no basis for them.

Special damages:

Marketing costs for the abandoned holiday let business – these were not treated as to be set off against the claimed projected holiday let rental income, so were effectively double claiming. The same was true of business rates, claimed for the period prior to entering the AST, and for utility bills etc for the same period.

The loss of rent claim could not be sustained beyond the ‘nuisance period’ (April 2018 to March 2020). The claimed nuisance had ceased (and had not restarted), and there could not have been any holiday letting during the pandemic restrictions in any event (and Ms Ray had had the benefit of the AST rent during that time). Moreover, the pleaded basis for calculating the holiday let rent was different (and substantially higher) to the way it was put by Ms Ray in her witness statement. No deductions had been made for business expenses that would have been incurred (and were not by the AST).

Had damages been awarded, against a claimed total of about £50,000, only some £11,000 would have been awarded.

Comment

Two key lessons here.

First, that private nuisance heavily depends on the nature of the locality, not the owner’s intended use or perception. Second, that special damages (in a non-occupation case) do have to be carefully calculated and evidenced and must take into account the expenses of the intended, frustrated, use.