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Max Lowry
Max Lowry, Advocate
Category: Law
Satisfied Customers: 1457
Experience:  LLB, 10 years post qualification experience
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we moved into our new home 18 months ago which is adjacent

Customer Question

we moved into our new home 18 months ago which is adjacent to a public house, the PH has a extractor fan which until recently was not used but had been there for many years, the new land lord has decided to increase his business as a restaurant and has now started to switch on the extractor from 10.30am until 9.30pm the extractor is at the same level as our kitchen window. Most of the time the smell of cooking oils and vegetables is overpowering and the sound of the extraction prevents us from enjoying the envronment in our garden. because the extractor has been in place before planning was required, the landlord is refusing to resite the extactor to another area above our eaves or the other side of his kitchen because his customers in his garden will experience exactly what we have to put up with. the local authority have taken noise meter readings and ask us to call them out when the smells are very obvious, Can you offer any advice please in this life changing situation. regards XXXXX XXXXX
Submitted: 4 years ago.
Category: Law
Expert:  Max Lowry replied 4 years ago.

Max Lowry :

Hi, welcome to Just Answer. I will help you with your question.

Max Lowry :

The local authority is the obvious starting point, which you're exploring, and is the right thing to do.

Max Lowry :

However, if you get nowhere, you might be able to rely on private law rights under the law of nuisance.

Max Lowry :

This is where somebody does something that is legal to do, but causes undue nuisance to a neighbour on their land, as in your case.

Max Lowry :

The courts always have to strike a balancing act with this kind of thing, and it's always difficult to say therefore what a court would do.

Max Lowry :

But, it has the power to order the resisting of the extractor, and if this is at minimal cost, it might be worth offering to pay for that to happen, and threatening court proceedings if he refuses. That way, he is at massive risk if litigation ensues, as if the court agrees with you, and orders it be re-located, then you should get all your costs of the litigation.

Max Lowry :

So, although it sounds unpalatable now, to offer to pay for the thing to be moved, it might be the best option longer term if the local authority refuses to exercise its powers.

Max Lowry :

Does that make sense?

Customer:

Hi Max, thanks for the information, to offer to make a contribution if the cost isnt to much has crossed my mind.

Max Lowry :

Okay, it might be a sensible way to resolve it quickly, and most importantly, cheaply?

Customer:

the first thing the representative from the local authority said was he will have to get planning permission and that will cost £378.00 for starters and we do feel they are on the land lords side. the question I possed to the Pollution officer was why didnt they at planning stage point this out, the Architect employed to do the planning informed the builder that our back garden sis treated as our living room in the house and the fan should be above the eaves of our roof not the single storey kitchen roof of the public house. your thoughts would be appreciated please.?

Max Lowry :

If he should seek planning approval at a cost of £378, then this needs to be taken into account by you when making a proposal to move the extractor.

Max Lowry :

He perhaps should have pointed it out - but for whatever reason, that appears not to have happened.

Max Lowry :

You can only work with the position as it is unfortunately.

Max Lowry :

So their builder said they should move it too?

Customer:

Max, if the pollution officer comes back to us and says sorry nothing they can do what would you recommend?

Max Lowry :

Then I think you need to look at doing what I've suggested above - making him an offer to move it, as the quickest/cheapest way of addressing a horrible issue.

Max Lowry :

And then, if he still wont do it, look to issuing court proceedings.

Max Lowry :

At that point, I expect it will resolve is my gut feeling.

Max Lowry :

I hope this answers your question. If you need further information, just let me know. Please do remember to rate my answer as highly as you can.

Customer:

Max, what is a fair offer in terms of percentage of cost?

Max Lowry :

I would have said 50:50 was fair.

Max Lowry :

But its a negotiated exercise often - so go in with you best offer, maybe to contribute 20% of costs or so, and get to 50:50??

Max Lowry :

I hope this answers your question. If you need further information, just let me know. Please do remember to rate my answer as highly as you can.

Customer:

Max, Thank you

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