England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE YEOVIL COUNTY COURT
(Mr Recorder Trethowan)

		Royal Courts of Justice Strand, London WC2
		19th January 1998

LORD JUSTICE NOURSE: Lord Justice Pill will deliver the first judgment.

1. LORD JUSTICE PILL: This is an appeal against a decision of Mr Recorder Trethowan, sitting at the Yeovil County Court, on 27th September 1996. The recorder dismissed claims by the plaintiffs, Mrs Ann Murdoch and Mr Duncan Murdoch, against the defendants, Glacier Metal Company Limited, for negligence and nuisance.
2. The claim arose out of operations at the defendants' factory. The plaintiffs live at The Orchard, Winterhay, Ilminster. The property was conveyed to them in 1979 and they moved into it in 1988. They also own adjacent land, which is 2.77 acres in extent, and there is a planning permission for six houses upon land they own. The factory has been in operation since the 1950s. Pursuant to a planning permission granted in 1987, there was an extension to what is described as Unit B of the factory. The plaintiffs' subject of complaint was the noise and glare coming from the factory premises, which are close to their property. The appeal is in relation only to the recorder's finding that the noise from the factory did not constitute an actionable nuisance.
3. The properties are on the outskirts of the small town of Ilminster. It is accepted that the area must be regarded as a mixed area; that is, mixed residential and industrial and not purely residential. A modern road, the A303 Ilminster Bypass, runs at no great distance from the plaintiffs' property.
4. The test to be applied in considering whether there was a nuisance was, the parties agree, accurately stated by the learned recorder. He said:

"In this case the issue is not whether or not there was any noise and glare from the factory. Both are accepted by Glacier Metal. The issue is whether according to the standards of the average person and taking into account the character of the neighbourhood the noise and the glare were sufficiently serious to constitute a nuisance."

The recorder had cited classic statements upon the law of nuisance, including the statement of Knight Bruce V-C in Walter v. Selfe (1851) 4 De G. & Sm. 315.

5. Mr Wadsley, for the plaintiffs, also referred to the case of Rushmer v. Polsue & Alfieri Limited [1906] 1 Ch 234. He did so because of the noise alleged to come from the factory as a result of the works undertaken following the 1987 planning permission. At p.250 Cozens-Hardy LJ stated:

"... I think the addition of a fresh noise caused by the defendant's works may be so substantial as to create a legal nuisance. It does not follow that because I live, say, in the manufacturing part of Sheffield I cannot complain if a steam-hammer is introduced next door, and so worked as to render sleep at night almost impossible, although previously to its introduction my house was a reasonably comfortable abode, having regard to the local standard; and it would be no answer to say that the steam-hammer is of the most modern approved pattern and is reasonably worked. In short, if a substantial addition is found as a fact in any particular case, it is no answer to say that the neighbourhood is noisy, and that the defendant's machinery is of first-class character."

6. That approach, I have no doubt, should also be followed today. It is, however, significant that in the same judgment Cozens-Hardy LJ referred to the approach of the Court of Appeal to a decision of a county court in a case such as this. He stated:

"In my opinion, it is not right for the Court of Appeal in a case like this to overrule the decision on issues of fact of a judge who has seen and heard the witnesses ..."

Cozens-Hardy LJ also had regard to the nature of the neighbourhood concerned. He stated, also at p.250:

"A resident in such a neighbourhood must put up with a certain amount of noise. The standard of comfort differs according to the situation of the property and the class of people who inhabit it."

While the second of those criteria, at any rate in the manner expressed, would not carry weight today, the first undoubtedly does.

7. Mr and Mrs Murdoch gave evidence, as did their daughter. There was a supporting letter from Mrs Phillips, who lives close to the factory, though on the other side of it from the plaintiffs. There are many other residential premises in the vicinity of the factory. Well-qualified noise experts were called on both sides and also, for the defendants, Dr Graham, a director of the defendant company, who had experience of acoustic questions. There was also a letter from the local environmental health officer. Noise readings were scientifically taken, as one would expect, and there is no dispute as to their accuracy or their compatibility with each other.
8. Mr and Mrs Murdoch described the impact of the noise upon their lives as residents of The Orchard and, in particular, emphasised their difficulty in sleeping because of the noise from the factory. The judge found that they were very genuine people whose lives had been affected by the existence of the factory and the activities carried on in it.
9. There was a dispute between the experts as to the standard by which the noise should be judged. For the plaintiffs, Mr Ostler, who is a former environmental health officer, relied upon British Standard 4142. The defendant's expert, Mr Wright, did not regard that standard as appropriate. It was a standard to be applied when new developments were proposed. It involved a comparison between the existing noise level and the noise level with the proposed development. That approach was inappropriate because the factory was already in existence and an ambient noise level appropriate for the application of the standard could not be measured. Mr Wright referred to the World Health Organisation standard, to which I will refer.
10. Having considered the evidence, the recorder's findings, under the heading "Nuisance from noise", were these:

"The experts disagree on the appropriate British Standard that is to be used. They both have valid arguments. In these circumstances opinions expressed based upon BS 4142 and BS 8233 are not of great assistance to me. Upon a proper reading of the noise conditions attached to the planning permission, the noise levels referred to relate only to the noise from the extension to Unit B, not to the factory as a whole. Clearly there has been a failure on the part of the planning authority to appreciate when drafting the conditions that they are virtually unenforceable. Therefore any reference to the noise levels exceeding the limits imposed by the condition in the planning permission is not of great assistance to me in deciding this issue. [That is a reference to the 1987 planning permission, to which a noise condition was attached.] The evidence that has assisted me most is that which relates to the World Health Organisation's recommended levels above which the restorative value of sleep can be affected, and the comments of the Environmental Health Officer in his letter to the Plaintiffs' Solicitors dated 26 January 1993 to which I have already referred. The evidence shows that the agreed measurement of the noise level was the same as or only marginally above the WHO recommended level. This is not sufficient on its own to satisfy me, after considering the evidence of the Plaintiffs and that called on their behalf as to the nature of the noise and its effect, that the noise from the factory was so obtrusive as to amount to a nuisance. I am supported in this by the assessment made by the Environmental Health Officer and expressed by him in his letter dated 26 January 1993, namely that a statutory nuisance did not exist at The Orchard. I am further supported in this in that none of the immediate neighbours, nor anyone else living to the western side of the factory, have complained about the level of noise or felt able to support this claim. I have no doubt that Mr and Mrs Murdoch suffered discomfort and inconvenience as a result of the noise from the factory. However, although the noise levels are about the same as those which the WHO indicates affect the restorative value of sleep, taking into account the character of the neighbourhood and the lack of complaint from the immediate neighbours, it has not been proved to me that it was sufficiently serious to constitute a nuisance."

In that statement, the recorder relied, first, upon the WHO recommendation; secondly, upon the letter from the environmental health officer, which it is common ground he accurately construed; and thirdly, upon the absence of support for the plaintiffs from their neighbours (which, subject to Mrs Phillips' letter, is a fact).

11. Mr Wadsley, in his forceful and persuasive submissions, submits that in relation to the WHO recommendations the recorder misunderstood their effect and should not have relied upon them. As to the second and third considerations, it is submitted that no such reliance should have been placed. The content of the WHO recommendation is not in dispute. The submission is that it has been applied by the recorder without having regard to the evidence that the noise from the factory fluctuated in level. The WHO figure of 35 dB(A) assumed a steady noise level, whereas the evidence was that in fact the noise from the factory was fluctuating, as Mr Wright, the defendants' expert, accepted. Mr Ostler referred to the impulsive characteristic of the noise: he used the expression "bangs and so forth". Where noise fluctuates, as that from the factory did, the acceptable noise level, viewed as an average, should be lower than 35 dB(A). In reply to the submission made on behalf of the defendants by Mr Eastman that in his conclusions the recorder referred to "the nature of the noise and its effect", Mr Wadsley submits that the importance of the point was such that, if the recorder had it in mind, it should have been dealt with specifically.
12. I will refer to the noise figures in a little more detail. The figure about which the main debate occurred was a figure of 36.7 dB(A). That was a figure found as the average noise level in a bedroom at The Orchard with the window open. It is submitted that a figure of 5 dB(A) should be added because of the fluctuating noise level, and it should be added so that the true effect of the factory noise could be considered. It is common ground that a difference of 1 to 2 dB(A) is not readily perceivable by the human ear.
13. What is emphasised on behalf of the plaintiffs is the importance of undisturbed sleep to human life. Sleep disturbance, it is submitted, ought not to happen. Mr Wadsley relies upon the evidence of Mr Ostler. He took noise measurements at night in the bedroom with the window open, and the three measurements taken were of 35 dB(A) at about midnight, 40 dB(A) forty minutes later, and another reading at the same time of 34 dB(A), measurements which are not inconsistent with those of Mr Wright. Mr Ostler's view of them is as follows:

"Subjectively, the factory noise is clearly audible and distinguishable above background noise levels within the bedroom. In particular, the thumps and bangs discussed above, though not registering on the sound level meter, were quite noticeable and the author appreciates the adverse effect on sleep created by factory noises."

I agree, of course, with the submission as to the importance of sleep, but it is not a proposition of law, as Mr Wadsley readily accepted when the point was put to him, that there is necessarily a common law nuisance if sleep in a house, in an area such as this, is disturbed by noise. Other considerations have to be borne in mind, although sleep disturbance is certainly an important consideration.

14. Before expressing conclusions on the point as to fluctuations, I mention the second and third of the complaints made of the recorder's reasoning. In my judgment the recorder was entitled to give weight to the letter from the environmental health officer that there was no statutory nuisance. It is submitted that there was no evidence that the readings were taken at night (and, indeed, I assume they were not) and that the plaintiffs' complaint is based upon the night-time conditions. Having regard to the test to be applied, the recorder was in my view entitled to have regard to the evidence that there was no statutory nuisance, even though it was different from the evidence of Mr Ostler, who was himself a former environmental health officer. The evidence could be accepted by the recorder as a pointer in the direction that there was no common law nuisance.
15. As to the third point, the recorder's reliance upon the absence of supporting evidence from neighbours, Mr Wadsley referred to the evidence of Dr Graham. Relying upon his own expertise in this field, Dr Graham stated that the effect of noise can vary considerably between one property and another. That is because of contours of the land, the reflection of noise from surfaces and no doubt other matters. In my judgment, a survey of the entire neighbourhood, with noise contours and comprehensive readings around the neighbourhood, is not necessary before a judge is entitled to make the comment which the recorder did. In an area such as this, the paucity of complaint from neighbours was a factor to which the recorder could properly have regard.
16. I refer to the central point. The question of fluctuation was no doubt argued as well in the county court as it has been in this court. The recorder did refer to the evidence called on behalf of the plaintiffs "as to the nature of the noise and its effect". I accept that he did have in mind, when reaching his conclusion, the points made in the evidence and the submissions to him about noise fluctuation.
17. The actual recommendation of the WHO report was in these terms. The report is entitled "Environmental Health Criteria 12, Noise", published in 1980. It states that:

"Based upon limited data available, a level of less than Leq 35 dB is recommended to preserve the restorative process of sleep."

The recommendation did not refer to fluctuations, although it is right to point out that the narrative upon which the recommendations were based, from which we have an extract, does consider the question of fluctuations. It is stated at p.55:

"The rate of occurrence of stimuli and/or fluctuation in the sound level were also found to influence sleep. The noise of low density traffic disrupted sleep more than that of high density traffic (Mery et al., 1971). Similarly, steady white noise of 40 dB(A) was not found to affect sleep, although fluctuating road traffic or factory noise with the same median level caused sleep disturbance (Osada et al., 1968). Short duration sounds of passing aircraft and trains with peak levels up to 60 dB(A) caused a similar degree of disturbance as steady noise at 40 dB(A), even though their total duration was less than 30 minutes per night (Osada et al., 1969, 1972b, 1974)."

18. Mr Wright also accepted that fluctuations were a factor, but the inspector's attention was directed to the recommendation itself, which was in the limited form which I have indicated. Mr Wright also stated that the figure of 35 should not be considered in a hard and fast manner.
19. These factors in my view support the conclusion that, having considered the evidence, the recorder did have in mind the question of fluctuation which had been addressed to him. Moreover, analysis of the noise readings submitted to him (and I have already referred to those of Mr Ostler) supports the general conclusion of the recorder, bearing in mind the test to be applied. In Mr Wright's Table 2, the figure of 36.7 appears as a Leq or average figure for the bedroom with windows open. The equivalent figure for a ground floor room with the doors open was 38.8 and with the doors closed 21.4. That is well below the figure of 35. For the bedroom with the windows shut the figure was 22.0 Leq.
20. In the garden the figure was 47.2. It is not suggested that the same test applies to the garden, although Mr Wadsley rightly emphasised the use which residents could be expected to make of their gardens. However, it is noted against that figure: "bypass noise dominant", which I take as indicating that as between the external sources of noise, the bypass and the factory, Mr Wright took the view that it was not the factory which was the dominating factor.
21. In my judgment, in applying the test in nuisance, the recorder and any court should take into account not only the question of sleep disturbance, very important though that may be, but the overall situation. Moreover, it is noticeable that the bedroom figure with the windows shut (as we are told they are likely to have been for at least half the year) was well below the WHO recommendation of 35.0.
22. For those reasons the recorder was, in my judgment, entitled, upon the evidence, to reach the conclusion he did. While acknowledging, as did the recorder, that the plaintiffs are and have been subject to disturbance, and not doubting their good faith in that regard, I would dismiss this appeal.
23. LORD JUSTICE THORPE: I agree. Although the appellants' case has been skilfully argued by Mr Wadsley, the criticisms which he has made of the judgment do not outweigh the considerations that the judge saw and heard the witnesses, visited the site and delivered his conclusions on the issues of fact in a careful reserved judgment which in my opinion sufficiently reasons the outcome.

I agree that the appeal should be dismissed.

24. LORD JUSTICE NOURSE: I also agree and do not wish to add anything of my own.

Order: appeal dismissed with costs; the plaintiffs' liability for costs having been assessed at nil, the defendants' application against the Legal Aid Fund pursuant to section 18 of the Legal Aid Act 1988 adjourned to the Registrar; legal aid taxation of the plaintiffs' costs. [Not part of approved judgment]