Location, Location, Location – Why location matters in nuisance claims

Jones v Ministry of Defence

A landowner has failed in a claim against the Ministry of Defence (“MOD”) that the use of an RAF base was a nuisance or breach of Article 1/8 of the First Protocol to the European Convention on Human Rights.

To succeed in the claim in nuisance, the claimants had to show the MOD’s activities caused an interference with the claimants’ reasonable enjoyment of their land.

Crucially, what is “reasonable” is looked at objectively and depends on the circumstances including the neighbourhood/locality of the property and whether the defendant’s use of its land was necessary for common and ordinary use of the land and carried out in a way that is reasonable having regard to a neighbouring property owner’s interests.

The key facts/findings of the Court were:

• The claimants had acquired its land, previously owned by a water board and used as a depot in connection with a nearby reservoir, in 2003. It wanted to change the use of the site to provide guest accommodation with premises for commercial lettings and a children’s nursery.
• The MOD had used its land since the 1950s for training pilots and since 1976 by using jet planes (with replacement jets brought in since 2009).
• The Court accepted that the noise of planes flying close to and over the claimants’ land was very loud, annoying and disruptive. Since 2003 there had been a decrease in flights over the claimants’ land, albeit the flights were now louder than before due to new jet planes but the overall impact of the noise was no greater than before.
• The use of planes on the MOD’s land was ordinary use of its land in 2003 and in 2021 given the longstanding use of the land for pilot training.
• The MOD had sought to keep noise to a reasonable minimum for their operations and specifically sought to address the claimants’ concerns about planes flying over the nursery and an activity centre on the claimant’s land.
• The tranquillity of the area had for many years been disrupted by the sound of planes from the MOD’s land since the 1950s and since 1976 by jet planes. The noise had been part of the environment for generations. The pre-existing activity was part of the character of the locality and so would be taken into account when considering whether the existing use was a nuisance.
• The claimants were using the land in a way that was more sensitive to noise than before. A landowner could not introduce a more sensitive use to land and complain about another landowner’s activity which was not previously a nuisance and had been carried out in a reasonable manner over a number of years.
• There was a significant public interest in the use of the MOD’s land continuing to train pilots.
• The Court dismissed the claims under Article 1 and Article 8. Regarding Article 8, the MOD’s use of land was lawful and in the interests of national security. A balance had been struck between the MOD’s use and those in the vicinity since the MOD operates a noise amelioration scheme for householders affected by noise (the claimants did not quality for this as the noise was not sufficiently loud) and the MOD had taken steps to minimise the noise. Regarding Article 1, the claimants bought the land as it was (subject to the pre-existing use of the MOD) and had not been deprived of what they bought, it only impeded the claimants from developing something new on their land. Article 1 does not create a right to acquire property and further income.

Key takeaway points

The facts of the case are key to understanding the Court’s decision but the following points should be kept in mind by landowners and those facing potential nuisance claims:

• What is a nuisance in one neighbourhood will not be a nuisance in another. An activity can be noisy and disturb a neighbouring property owner without constituting a nuisance.
• Use of land in a reasonable manner for a long period of time can change the nature/character of the neighbourhood. The Court will consider the characteristics of the neighbourhood/locality when considering if use of land constitutes a nuisance. Objecting to a longstanding use of land may be difficult if the defendant is not putting its land to a new or varied use.
• Landowners should take into account neighbouring properties and seek to carry out activities in a reasonable manner, where possible taking steps following a neighbour’s complaint to mitigate the disturbance to the neighbour where reasonably possible. As ever, seeking to act in a reasonable and neighbourly manner will assist.
• Where a claimant has changed the use of its land, making it more sensitive to a pre-existing use of a defendant’s land that was not previously a nuisance, the Court is unlikely to take into account the more sensitive use the claimant wishes to put its land to.

Will Leney is a Senior Associate in our Property Litigation team.

A PDF copy of the article above is also available to download here.