Nuisance claim — the noise was there first

Summary

In Jones & Jones v Ministry of Defence [2021] EWHC 2276 (QB), a claim by landowners in private nuisance failed because it was the claimants’ change to the use of the land that altered the impact of the defendant’s longstanding activity.

Facts

Just one of the many impressive sights on the Isle of Anglesey is that of the military jets on manoeuvres from RAF Valley and RAF Mona. Mr and Mrs Jones, however, would disagree. As owners of nearby Parc Cefni, they considered the noise to be an unlawful interference with the use of their land that had an adverse impact on their aspirations to run Parc Cefni as a holiday and leisure park.

Between 1958 and 2003, Parc Cefni was used by the Water Board (now Welsh Water) for the purpose of supplying water to the island from the nearby reservoir. The claimants bought the land in 2003 and subsequently secured planning permission to convert outbuildings into three holiday units and later to potentially erect 22 holiday units. After some initial success in 2007, lettings dwindled and since 2016 the claimants have been trying to sell the property. They attributed the lack of success of the project to the noise from aircraft using RAF Mona and brought a claim in nuisance against the MoD.

Decision

The claim was dismissed. Fast jets had been using RAF Mona since 1951. The noise from the aircraft had been “part of the environment for generations” and did not create a material interference with the use of the land at the time that the claimants purchased it in 2003. Whilst the judge accepted that the noise of the aircraft was very loud and interfered with the claimants’ current use of the property, it was not an actionable nuisance. It was an activity that had been conducted in the location for 70 years and it was an ordinary use of the land in 2021 as it was at the time of purchase in 2003. As such, there was no nuisance when they acquired the land and, absent any deterioration in the situation, there was no claim in private nuisance. These findings also disposed of the related claims under Article 8 (right to private life) and Article 1 of the First Protocol (right to peaceful enjoyment of possessions).

Comment

Simply because the use of (and noise from) the defendant’s land was pre-existing does not mean the defendant was entitled to carry on the relevant activities in any way it wished. Important findings in this case were:

1. the judge’s rejection of the allegation that the noise had gotten worse since 2007 and
2. his acceptance that the defendant had taken all reasonable steps to ensure the noise was kept to a reasonable minimum.

The claimants’ change of use was therefore fundamental and, as the judge put it — “If an occupier of land has conducted an activity in a reasonable manner for many years, I do not consider it fair that a new neighbour who wishes to start doing something that is sensitive to the occupier’s activity can complain that the activity in question will disrupt the sensitive use of his land that the neighbour wishes to introduce.”