Diana Effie Elliot Ray v Windrush Riverside Properties Limted
| Jurisdiction | England & Wales |
| Judge | Russen |
| Judgment Date | 23 August 2022 |
| Neutral Citation | [2022] EWHC 2210 (TCC) |
| Docket Number | Case No: HT-2021-BRS-000010 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2022] EWHC 2210 (TCC)
HH JUDGE Russen QC
(Sitting as a Judge of the High Court)
Case No: HT-2021-BRS-000010
IN THE HIGH COURT OF JUSTICE
BUSINESS & PROPERTY COURTS AT BRISTOL
TECHNOLOGY & CONSTRUCTION COURT
Bristol Civil & Family Justice Centre 2 Redcliff Street Bristol BS1 6GR
Gordon Wignall (instructed by Hodge Jones & Allen LLP) for the Claimant
Sara Jabbari (instructed by Christopher Davidson Solicitors LLP) for the Defendant
Hearing dates: 19 th – 21 st July 2002 (reading day 18 th July 2022)
APPROVED JUDGMENT
HH JUDGE Russen QC
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time of its handing down is deemed to be 10.00am on Tuesday 23 August 2022
HHJ Russen QC:
This is my judgment following the trial of the Claim which took place over 3 days in July 2022. The claim advanced by the Claimant (“ Mrs Ray”) is based upon alleged private nuisance through emissions of noise and odour from neighbouring business premises owned by the Defendant (“ Windrush”).
BACKGROUND
Mrs Ray is the owner of a property in High Street, Bourton-on-the-Water, Cheltenham GL54, 2AP (“ Kevinscot”) and Windrush is the owner of an adjoining property ( “St Kevins”). Windrush is a property holding company incorporated in Jersey. The boundaries of the two properties adjoin at the back but they are separated by a common neighbouring property (occupied by estate agents) on their High Street frontage.
Mrs Ray acquired ownership of Kevinscot in January 1996. It is now a 4 bedroom property which can sleep up to seven people.
Mrs Ray did not live at Kevinscot at any times material to these proceedings. Her home is in nearby Cold Aston and Kevinscot is part of a portfolio of property-based businesses which extends to farming, property development and rural rental properties.
From the early 2000's until 2015 Kevinscot had been used as The Living Green Centre to demonstrate what Mrs Ray described as a “sustainable lifestyle demonstration”. It was open to day visitors who would visit its secluded walled garden and shop. The garden provided a peaceful haven for those visitors. Strict criteria were applied by Mrs Ray to the type of local and environmentally friendly items that could be sold in the shop. Her focus was upon making sustainability and ‘Green’ issues accessible, understandable and appealing to the wider public.
In 2015 Mrs Ray obtained planning permission for a change of use at Kevinscot so that it could be let as holiday premises which would be suitable for occupation by disabled persons. The house was adapted so as to provide the 4 bedrooms. She incurred expenses in marketing the property, including commissioning a website design for the holiday let.
Windrush acquired ownership of St Kevins in October 2006. At that time the property was occupied by two separate tenants. One of them operated a tea room and café as well as a fish and chip takeaway from the main building and another ran a newsagent from the smaller adjacent premises.
In 2016, Windrush's associated company, De La Haye Restaurants Limited (“ DLHR”), took over the running of the food outlet business known as the ‘Windrush Restaurant’. Windrush (through Mr Les De La Haye) then obtained planning permission and listed building consent in June 2016 for the construction of a single storey extension and other alterations to the restaurant. In July 2017, following the departure of the second tenant and the closure of the newsagents, Windrush (again through Mr De Lay Haye) obtained on appeal permission for a change of use for a hot food takeaway in place of the newsagent. Building works at St Kevins were then undertaken to enable the part previously run as a newsagent to operate as a dedicated fish and chip takeaway with the rest of the premises being run as the enlarged Windrush Restaurant.
The works extended to the installation of air intake and extraction fans and flues, air conditioning units and a detached refrigeration unit at St Kevins (“ the Mechanical Plant”). The carrying out of the works meant that Windrush Restaurant ceased to operate for a time. It re-opened for business on or about 26 March 2018. The new takeaway opened about one month later.
The Mechanical Plant which was then used in the operation of the restaurant and takeaway kitchens, and about which complaint is made in these proceedings, comprise the following items:
i) two air extraction fan units, located on the roof of the restaurant kitchen;
ii) an air intake fan unit, located on the roof of the restaurant kitchen;
iii) two air extraction fan units, associated with the use of the fish & chip shop kitchen, and located on the South-West elevation. The units consist of stainless-steel flues;
iv) three air conditioning units on the South-West elevation;
v) four air conditioning units on the North-West elevation; and
vi) an external refrigeration unit installed to the south west of the restaurant kitchen extension, attached to the boundary wall.
Both the restaurant and the takeaway closed for business in late March 2020 as a consequence of the coronavirus pandemic. They have not since re-opened. DLHR was put into voluntary liquidation or about 20 July 2020. Windrush had by then taken the decision to sell St Kevins. In October 2019, Windrush agreed to sell St Kevins to the pub chain Fuller, Smith & Turner PLC (“ Fullers”). The Contract for Sale dated 15 June 2021, under which completion of the sale to Fullers is conditional upon satisfaction of certain conditions precedent, was included within the trial bundle.
Mrs Ray says that during the period of operation of the expanded food business, between March 2018 and April 2020, exclusive, the emissions of noise and odours from the Mechanical Plant were such as to interfere unreasonably with the use and enjoyment of Kevinscot. She says that, as a consequence, she was unable to market Kevinscot as a holiday let and therefore removed it from the letting market. However, in November 2018, Mrs Ray was able to let Kevinscot to a member of her family and her godson, Mr James Tongue, under an assured shorthold tenancy.
On or about 29 August 2018 the Cotswold District Council served an Abatement Notice under s.80 of the Environmental Protection Act 1990 requiring the abatement of noise, amounting to a statutory nuisance, from the operation of the “ ventilation/extraction/refrigeration system at the rear of [St Kevins] where there is a boundary with [Kevinscot]” within 8 weeks of the notice. Windrush did not appeal the notice.
The abatement of noise from the operation of the Mechanical Plant was part of a wider issue about its installation. On 13 June 2018 the Council had refused retrospective planning and listed building consent for the Mechanical Plant. On 12 October 2018 two Enforcement Notices were accordingly served requiring its removal within 3 months of 30 November 2018. That deadline was subsequently extended to 6 months from 19 August 2019 (i.e. to 19 February 2020) by a decision of the Planning Inspectorate following an unsuccessful appeal by Windrush against those notices.
The Decision of the Planning Inspector (Mr Wharton) dated 19 August 2019, in addition to identifying the harm to both the listed building and the Bourton-on-the-Water Conservation Area, said this of the air conditioning units and intake and extraction fans:
“…I also consider that these units have detrimentally affected the living conditions of nearby residents and in particular those living at Kevinscot. Having noted the proximity of the air conditioning units to this and other nearby buildings (including the motor museum and the estate agents); having heard the extract fan during my site visit and having read the report of the acoustic consultant (commissioned by the occupant at Kevinscot) I share the Council's concerns about the effect that these works have had on the living conditions of those living or working close to and adjacent to the appeals premises.”
The acoustic consultant's report mentioned by Mr Wharton had in fact been obtained by Mrs Ray. It was dated 30 April 2019 and made by Mr Ian Sharps of Sharps Gayler LLP (“ the Sharps Report”).
THE PARTIES' RESPECTIVE CASES
As I explain below, the parties' formally pleaded positions are to be considered in the light of developments shortly before and during the trial.
Mrs Ray's Particulars of Claim allege that during the period identified by her evidence as that between 1 April 2018 to 23 March 2020 (which, like her, I will describe as “ the nuisance period” whilst recognising the need for an actionable nuisance to be established by her) the Mechanical Plant:
“……. operated typically from 9 a.m. to 8p.m. daily during non-peak seasons and 9 a.m. to 11 p.m. daily during peak seasons. The noise nuisance was current during the whole of these periods. The noise from St Kevins dominated the noise environment at Kevinscot and the windows of the house could not be opened without significantly increasing the loss of amenity by reason of noise. The noise of the refrigeration unit and differences in its sound activities, probably from its motor going on and off, were noticeable during the night.”
Mrs Ray relies upon the Sharps Report and the Decision of Inspector Wharton, dated 19 August 2019.
In addition, Mrs Ray says the noise emissions from St Kevins extended to the sound of broken glass when bottles were being disposed of outside and the banging of the door of the refrigeration unit when it was being...
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