There are others whose frustrations have been exacerbated where they have had premises in existence for years, and a complaint comes from either a resident of a new development or from a commercial premises that has had planning consent to be converted into a residential property.
Many environmental health officers have quoted those immortal words: “Residents can move to a nuisance and, as a result, the nuisance you have caused must be abated.”
There is no better example than the recent case in Norwich, where an established nightclub was found to be at fault for generating noise nuisance that impacted on nearby residents of newly developed flats. Norwich City Council served a noise abatement notice and successfully defended its actions, forcing the nightclub operators to not only incur litigation fees but implement expensive noise attenuation works.
There seems to be a sense of injustice here, especially since Norwich City Council granted planning permission for the flats in full knowledge of the existence of the club. In fact, it could be argued that the onus should be on the council’s planning department, through conditions, to compel the developers to ensure that the flats were sound proofed.
Conversely, the Ministry of Sound, on protecting its interests, successfully objected to a planning application for a residential development on an adjacent site (this is currently being appealed). There is light at the end of the tunnel, one that may assist the Ministry of Sound, and also the nightclub operator in Norwich.
The Court of Appeal recently found in favour of a motor sport operator, against a previous court’s finding that noise generated by its activities constituted a private nuisance. In summary, this related to a couple moving to a rural area, apparently unaware of the close proximity of a motor sport venue, which had the benefit of planning permission and certificate of lawful use.
The Court of Appeal took the view that the grant of planning permission for the motor sport venue followed by its subsequent implementation might change the character of the locality. If the character of the locality is changed, then the question of whether particular activities in that locality constitutes a nuisance is to be considered. One consequence might be that otherwise offensive activities in the locality cease to constitute a nuisance. The Court of Appeal commented that noise generated by motor sports was “one of the noise characteristics of a locality”.
The contractual development of residential flats in town and city centres near to established and authorised venues such as bars, nightclubs and restaurants, mean that this judgement gives some businesses greater certainty that if they comply with their authorisations and restrictions, they may be free of neighbours’ actionable complaints and threats of noise abatement notices.
In any event, we continue to advise operators to give serious consideration to objecting to any proposal involving the development of residential premises near to their business, or change of use from, say, commercial to residential.