the role of injunctions in noise nuisance
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Applied Acoustics 14 (1981) 129-133
THE ROLE OF IN JUNCTIONS IN NOISE NUISANCE
Department of Civil Engineering and Building, Coventry (Lanehester) Polytechnic~ Coventry CVI 5FB (Great Britain)
(Received: 7 July, 1980)
The circumstances in which a person with a legal interest in land may be granted a perpetual injunction to restrain a noise nuisance are critically examined. A householder's legal rights should not be overridden by the interests of club members or of the public in attending motor boat racing events organised by such a club, so as to deprive him of the remedy of in~unction. The Court of Appeal so hem in the recent decision of Kennaway v. Thompson 30 April, 1980.
The principles which the court applies in considering the granting of an interlocutory injunction to a local authority to restrain a noise which is a nuisance under the Control of Pollution Act, Section 58 (8), are also considered.
The owner of the freehold of a house, or the leaseholder, possesses what is known as a 'legal interest in the land'. An action for private nuisance has traditionally been a remedy available only to a person who has suffered an 'unreasonable" interference with use or enjoyment of his land. 1
In the case of noise, in deciding whether the interference is 'unreasonable', a balance has to be maintained between, on the one hand, the legal right of the individual to enjoy his house and garden without interference with his sensory comfort and, on the other, the rights of a neighbour or the public in general to engage in lawful pastimes. 2 The court decides whether the interference is
129 Applied Acoustics 0003-682X/81/0014-0129/$02'50 ,~(; Applied Science Publishers Ltd, England, 1981 Printed in Great Britain
130 B. HAY
'unreasonable' on the balance of various factors such as the duration of the interference s and the character of the neighbourhood. 4 However, the court will refuse to take account of abnormally sensitive plaintiffs. 4
The plaintiff has available two remedies in an action for nuisance. These are:
(i) An injunction to restrain the defendant from committing or continuing a nuisance.
(it) An action for damages to compensate the plaintiff for the injury he has suffered.
The principles upon which the court interferes by way of a perpetual injunction were considered recently by the Court of Appeal in the case of Kennaway v. Thompson amt Another. s Mrs Kennaway owned a house which was 375 m from the starting line at Whelford Lake, Gloucestershire. She alleged that the noise caused by the activities of the Cotswold Motor Boat Racing Club, which included practising racing and water skiing, caused a substantial interference with her use and enjoyment of her home. The largest class of boats was supposed to have a noise limit of 85 dB, with an upward tolerance of a f imher 10 dB. Experiments carried out showed that nearly all the large boats took advantage of this tolerance and the noise made by a number of them exceeded 100 dB. Mrs Kennaway had to live each year, from about 9 am until dusk each day from the end of March to the beginning of November in the expectation that at any moment, particularly at weekends, she would be subjected to unpleasant noises. A High Court judge, Mr Justice Mats, in May, 1979, refused to grant her the remedy of a permanent injunction and held that the appropriate remedy was damages of1,000 for the period up to trial, and 15,000 damages for .luture damage under Lord Cairns' Act, 1858. 6 Although this Act was repealed by the Statute Law Revision Act, 1883, 6 the jurisdiction remains with the High Court to award damages in lieu of an injunction.7 The importance of Mr Justice Mats' decision is that he awarded Mrs Kennaway 15,000 damages for loss of value of her home because of the noise. However, this decision of a High Court.judge sitting alone was later set aside by the Court of Appeal who held that the judge had misdirected himself in deciding the appropriate remedy was damages under Lord Cairns' Act. The Court of Appeal held that the principle laid down in Sllelli'r c. City ql London Eh'ctric Lighting Company, s indicating the circumstances in which damages may be given in substitution t"oi an injunction, is still good law.
Where the injury to the plaintitFs legal rights is (I) small, (2) capable of being estimated in terms of money, (3) can bc adequately compensated for by a .small money payment, and (4) where the case is one in which it could be oppressive to the
THE ROLE OF INJUNCTIONS IN NOISE NUISANCE 131
defendant to grant an injunction, then damages in substitution for an injunction may be given.
In the present case, the injury to Mrs Kennaway's legal right to enjoy her land without unreasonable interference by individual club members was not small. The injury was not capable of being estimated in terms of money, save by fixing a figure for the diminution in value of her house, and the figure of 15,000 the High Court judge had fixed could not be described as small. Lord Justice Lindley, in Shelfer's case, had said that the court had always protested against the notion that it ought to allow a wrong simply because the wrongdoer was able and willing to pay for the injury he might inflict, and the circumstances that the wrongdoer was in some sense a public benefactor had never been considered a sufficient reason for refusing to protect an individual by injunction. Accordingly, the Court of Appeal granted Mrs Kennaway a permanent injunction to prevent nuisance caused to her by the noise of the racing activities of the members of the Cotswold Motor Boat Racing Club. It was held that her rights should not be overridden by the interests of the club members or of the public in attending racing events organised by the club, so as to deprive her of the remedy of injunction.
The Court of Appeal stated that the statement of Lord Denning in Miller v. Jackson 9 that 'the public interest should prevail over private interest', when the court exercised its equitable jurisdiction to refuse an injunction restraining cricket club members from committing a nuisance by hitting'sixes' into Mrs Miller's nearby garden, ran counter to the principles of Shelfer's case s which was still good law.
It followed that Mrs Kennaway was entitled to a permanent injunction on terms. The Cotswold Motor Boat Racing Club members were ordered to restrict their racing to one international event extending over three days, the first day being given over to practice and the second and third to racing. In addition there can be two national events, each of two days but separated from the international event and from each other by at least four weeks. Finally there can be three club events, each of one day, separated from the international and national events and each other by three weeks. No boats creating a noise of more than 75 dB are to be used on the club's water at any time other than when there are events specified in the judgment. If events are held at weekends--as they probably will be--six weekends, covering a total of ten days, will be available for motor boat racing on the club's water. Water skiing, if too many boats are used, can cause a nuisance by noise. The club is not to allow more than six motor boats to be used for water skiing at any one time. An injunction will be granted to restrain motor boat racing, water skiing and the use of boats creating a noise of more than 75dB on the club's water save to the extent and in the circumstances indicated.
The effect of the Court of Appeal's judgment was to replace Mrs Kennaway's damages of 15,000 for loss of value on her home by a permanent injunction on terms.
132 B. HAY
The granting of an interlocutory injunction to restrain a noise which is a nuisance is governed by the same principles as in other actions. These principles were laid down by the House of Lords in American Cyanamid v. Ethicon Ltd.1 Initially the plaintiff need only satisfy the court that there is 'a serious question to be tried', in which case the court should go on to consider whether, on the 'balance of convenience', an interlocutory injunction should be granted or refused.
The application of these principles may be illustrated by the case of Hanlmersmith London Borough Council v. Magnum Automated Forecourts Ltd 11 where a local authority brought proceedings for an interlocutory injunction to restrain a noise which was a nuisance under the Control of Pollution Act, 1974, Section 58 (8). 12 Residents complained to the local authority about the owners of a 24-h 'taxi care centre' because of the noise emanating from the premises. There were automatic pumps for providing diesel oil for taxis, an automatic oil dispensing machine, a car- wash and vending machines supplying cigarettes, food and hot drinks. It was unattended; everything was automatic and coin-operated and could be used for 24 h every day. At night taxis came and went and they kept their engines idling whilst in the forecourt. It was particularly bad in the early hours of the morning. Council experts took readings with equipment and they were satisfied that noise amounting to a nuisance existed. Hence the local authority served a notice requiring that within 28 days the company cease operations between 11 pm and 7 am. The company lodged an appeal to the magistrates' court. The appeal was not due to come on for some time and meanwhile the taxi care centre continued its operations unabated, which it was not entitled to do.
Instead of prosecuting the company under the Control of Pollution Act, 1974 Section 58 (4) 12 for contravening a requirement of the notice, the local authority applied to the High Court for an interloc