Shhh … keep the noise down

In July, a newspaper reported that a clay pigeon shooting club which had been around for thirty years faced closure, after a District Judge dismissed its appeal against a noise abatement notice. The notice had been issued following a complaint to the council by a local resident, who, three years ago, built a house three hundred metres from the traps. This happened in Fermanagh, but it could just as easily have been elsewhere in the United Kingdom.

Under the Environmental Protection Act 1990, a local authority is required to investigate whenever a complaint of statutory nuisance is made. A statutory nuisance is defined to include “noise emitted from premises so as to be prejudicial to health or a nuisance”. “Nuisance” is not defined in the Act, but includes both public and private nuisance. The former is a common law offence where a whole class of the population is affected. The latter is a peculiarly property related matter, where the claimant’s reasonable enjoyment of his land is interfered with. Where a statutory nuisance is found to exist, the authority is required to issue an abatement notice, contravention of which is an offence, punishable by a fine of up to £5,000 or £20,000 in the case of business premises. Any person aggrieved by a statutory nuisance may also apply to a magistrates’ court for an order, with similar penalties for non-compliance.

Detailed guidance on the control of noise in connection with clay target shooting was published by the Chartered Institute of Environmental Health in 2003.This focuses on planning and nuisance legislation, the nature of clay target shooting and the use of site location and management to minimise noise impact. Advice is provided on such things as site requirements, topography, directionality, weather conditions, noise sensitive premises, tree belts, buffer zones, liaison with local residents, opening times, numbers of shooting stands, numbers of entrants, use of low noise cartridges and noise barriers.

The guidance refers to research that suggests “there is no fixed shooting noise levels at which annoyance starts to occur.  Annoyance is less likely to occur at a mean shooting noise level below 55dB and more likely to occur at a mean shooting noise level above 65dB.”  Noise “annoyance” is not the same as noise “nuisance”, and, as the guidance stresses, “the assessment of whether the noise experienced at noise sensitive premises is a nuisance will be a judgement based on a number of factors.”

Earlier this year, the Supreme Court clarified a number of important issues with regard to noise nuisance. The case was Coventry v Lawrence (2014) UKSC 13 and the facts were as follows. A motor sports stadium was constructed in 1975. In 1992, planning permission was granted to use some land at the rear as a motocross track. The permission placed limits on the frequency and times of activities but was silent as to noise levels.  In 2006, the claimants bought a house close to the stadium and the track. Following their complaints about the noise, the local authority served abatement notices. Works were carried out which the claimants alleged were ineffective, but the local authority took no further action.

Following a review of the law dating back to 1826, the Supreme Court held that an owner of land might acquire through the passage of time a right to carry out an activity which resulted in a noise nuisance: a “prescriptive easement”. That could exist where the noise had been emitted for at least 20 years, and would provide a defence to a nuisance claim. Otherwise, there is no defence that the claimant had acquired the property after the nuisance had started. In deciding whether an activity caused a noise nuisance, the court had to assess the level of noise which a normal person would find reasonable to have to put up with, given the established pattern of uses or character of the locality. The fact that there may be planning permission could be relevant, as could the terms and conditions, but it was not a major determinant of liability.

In this case, the noise from the activity had not caused a nuisance for long enough to establish a right by prescription, nor could the defendants rely on any defence that the claimants had come to the nuisance. The Court of Appeal had been wrong to treat the existence of planning permission as determinative, and the Supreme Court therefore ruled in favour of the claimants.

Shoots and sports stadiums are not the only ones who have much to fear from this. The Music Venue Trust was created in January 2014 to protect the UK live music network and is actively calling for “Agent of Change” legislation that will favour the existing venue when someone moves near to it.  Otherwise, MTV warn: “every venue, every sports ground, every cinema, restaurant, theatre, race track, church and community space in the country faces bills running into thousands of pounds trying to fight developments or meet an ever evolving demand from new occupiers to modify and adapt their noise.”

The DEFRA response to MTV’s recent e-petition calling for an urgent review was not encouraging: “Legislation relating to noise is very wide ranging.  It includes regulations that cover building standards, housing, health and safety at work, antisocial behaviour, noise from outdoor machinery and noise as a statutory nuisance. The Government has recently reviewed its noise legislation as part of the Red Tape Challenge and believes that the law, as currently constituted, strikes the right balance between managing the noise environment and considering the needs of business.”

As it stands, and as the club in Fermanagh discovered, where noise nuisance is alleged, the arrival of a new neighbour is an uncertain and potentially terminal prospect for a shooting ground. There seems little reason to believe a change in the law will come any time soon.

For advice and assistance concerning the legalities of shooting and country sports, please contact Tim Ryan on 01732 770660 or email [email protected]

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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