Coulson: Smokers' noise annoys

It was only a matter of time, of course, before the effects of the indoor smoking ban created major problems for a licensee.

Now, an Exeter licensee faces a civil action for damages because his very close neighbour claims that the conversion of a skittle alley to an outdoor smoking shelter has lowered the value of his flat.

There is, of course, plenty of precedent for bringing claims against neighbours for noise pollution. In the main, this has been for industrial processes or a very loud activity such as motor racing.

It is rarer to find human conversation as grounds for an action for damages. But times are changing. The usual route for such complaints is to the local council. Neighbours can either use the procedures under the Licensing Act or complain to local environmental health officers, who will then investigate the matter.

In such cases, council officers can use a noise-abatement notice requiring the offender to limit the sounds emanating from the premises, or face court action.

Another legal action involves an injunction against the offender, requiring them to cease the nuisance or face contempt of court proceedings.

Both types of procedure have been used against pubs, and a recent case involved a licensee in heavy fines for breaching an abatement notice.

An action for damages of the kind now in the news does not require local authority intervention. It is taken out by a person who claims some form of loss as a result of the operation of adjoining premises.

In this instance, the claim is that the flat in question, bought in 2004, is now unsaleable, or at least only of a diminished value, as a direct result of the conduct of the business.

This is a long shot, of course, but similar claims have sometimes surprised observers by being upheld.

The problem for the claimants is in persuading a judge that the developments at the pub were not able to be foreseen when they bought (the age-old maxim caveat emptor — let the buyer beware — comes in here).

Although much has been done to bolster consumer protection, it is still true that when you buy property you should conduct a diligent search into factors that might affect the ongoing value.

Problems​

Clearly, this couple knew full well that they were buying next to a pub frequented by customers and that access to the property was via a shared walkway.

As such, they would have to be prepared to accept the inherent problems this might cause, as many who live cheek-by-jowl in towns and cities would testify.

You cannot expect entire peace and quiet in such a situation.

However, they may not have anticipated the major disturbance of conversation and noise from smokers banished to an outdoor area, and clearly this may well have influenced potential buyers as well.

But those, like me, who once lived near a daily outdoor market, will know what noise of human activity can be like. I never heard of anyone in our street taking legal action to keep the market quiet.

The size of the claim will also have shaken many in the licensed trade, thinking that it will bankrupt them. This, of course, depends on the level of insurance cover that the licensee has.

It would be well for everyone to check that they are covered for claims of this kind. You cannot be insured for criminal actions such as breaching noise-abatement notices, but actions by neighbours are often included in policies.

Fortunately, this case will not set a precedent. Each action has to be judged on its own circumstances, including who is liable and the extent of that liability.

The coming months will show us how the question of outside noise has been dealt with by the courts.