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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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A noisy aircon/refrigeration unit at the rear of a Sainsburys

Resolved Question:

A noisy aircon/refrigeration unit at the rear of a Sainsburys Local shop - located about 2 meters distant from our back garden - is very noisy especially in hot weather. There is a long history of correspondence with Sainsburys and with Merton Council.

Do we have a case for damages if the noise of the unit severely lowers the value of the house we are trying to sell. See below - a longer version of the history is available.

A new unit installed in November 2013 appeared to have solved the problem until we put our house on the market in June 2014. The estate agent held an open day commenting that all potential buyers were badly put off by a noise our estate agent first "thought was a helicopter." We are trying to persuade Sainsburys to put doors around the unit to enclose the sound (which they have said is not necessary).

Our estate agent is an independent witness to the damaging impact the unit has had on his attempts to find buyers for the house.
Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.

Alex Watts : Hello my name is ***** ***** I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.
Alex Watts : Have the Council taken any action please?
Customer:

Some five or six years ago, an officer from the Council environment office paid a visit and found the noise level - on a cool day - on the border line. We have not on this occasion asked the Council to visit again. This partly because we have been away rather a lot and partly because in the past it was very difficult to get the Council to follow-through or to sustain any action. We feel we have more chance of pressuring Sainsburys direct into taking action (they have been quite responsive on this occasion), but we still fear that in the end the noise level from thje aircon/refrigeration unit may cost us a sale of our house or a sale at 50k or 100k less than we could have expected to achieve.

Customer:

Are you online Alex - I can stay online but it is 1 a.m. in Berlin (where I am) and I will go to bed if you are offline.

Alex Watts : Do you know what the noise level reading is please?
Customer:

We have no current noise level reading. Judging by what we heard, the remarks of our estate agent and the comments he reported from potential buyers,. it must have been during hot weather well over acceptable or legal levels.

Alex Watts :

If it is legal then there is nothing you can do

Alex Watts :

You can ask for compensation for any reduction in value but by law they don't have to give it to toy

Alex Watts :

you

Alex Watts :

This is because the levels are permitted

Alex Watts :

If it is above permitted levels then you can take action

Alex Watts :

They may offer you compensation and you should consider it,

Alex Watts :

But they do not have to

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

What I really need to know is this. Assuming Sainsburys don't "offer" compensation - that would mean admitting they have been highly economical with the truth in their dealings with us - what are my chances in a contested case in a court of law of getting a seriously large amount of compensation: my reckoning is that our potential loss could be as much as 50k or even 100k on the value of our house. The calculation is complicated by the fact that our chances of selling NOW (early July) are much less than they would have been even three or four weeks ago when we first put the house on the market. In that period, the housing market has gone flat or worse (in response to government measures to limit house lending and/or to impose stricter affordability criteria). We rushed to put our house on the market in the expectation of a later downturn - and were thwarted by Sainsburys noise in achieving the rapid sale we sought at a time when the market still had vigor.

Alex Watts :

What are the chances of you getting excess of £50,000? If you have £15,000 to spend on legal fees to get the matter to trial and risk having to lose that PLUS pay Sainsbury legal costs (you wont get legal aid) you could take it to Court.

Alex Watts :

However Sainsbury's are not obliged to pay you if it is below legal permissible levels

Alex Watts :

Therefore you risk £30,000 at least.

Alex Watts :

I am sorry if this is not the answer you want and certainly not the one I want to give you, but I have a duty to be honest

Alex Watts :

If the levels were above legal levels you would have a claim

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

Obviously, my question about the likelihood of success in a court of law is predicated on getting noise levels measured and certified as being above legal levels. I don't actually need a lawyer to tell me Sainsburys don't have to pay if their noise is within legal limits.

Alex Watts :

Yes of course.

Alex Watts :

If it is above legal limits then you have a good case.

Alex Watts :

It is called a statutory nuisance

Alex Watts :

And you can sue for loss and damage

Alex Watts :

Then your chances would be very good.

Customer:

I was asking a lawyer the question to test out the potential strength of the argument I put forward concerning the lost opportunity (due to noise) to take advantage of a strong housing market. Is that the sort of argument a court is likely to accept? It is not a problem getting - as you imply - an answer I might not like. I just want to be able to weigh the risks and potential benefits of going to court if necessary or of getting Sainsburys to understand that I might go to court. (My preference is for Sainsburys very rapidly to sort out the problem by installing a quieter unit or by enclosing the existing one to muffle the noise it makes when forced to work hard in hot weather.

Alex Watts :

Loss of opportunity is very hard to claim.

Alex Watts :

You have to be able to prove there was a realistic loss of chance.

Alex Watts :

Unless you had a firm offer and that person withdrew purely on the basis of the noise then it would be hard to get a settlement for loss of chance

Alex Watts :

If you had a buyer that pulled out that would be easier.

Alex Watts :

But your main cause of action is common law tort of nuisance

Alex Watts :

There is a statutory nuisance and you can claim losses because of that

Alex Watts :

That is the main head of your claim

Alex Watts :

Does that clarify matters?

Customer:

i think I have an estate agent who would - based on his own experience of the noise and customer response on the open day he ran

Alex Watts :

You could plead that as an alternative.

Alex Watts :

A second head of loss

Customer:

You say tort of nuisance, but does that expend to the tens of thousands of pounds lost in this case due to our failure to sell the house when the market was strong

Alex Watts :

Well that is difference, that is loss of chance

Customer:

that should read extend not expend

Alex Watts :

Nuisance is for the noise

Alex Watts :

Loss of chance is for the loss of sale

Alex Watts :

Does that clarify?

Customer:

what are the precedents for payments to residents whose peace and pleasure in their garden is disturbed by a "nuisance" noise?

Alex Watts :

Legal research in terms of case law is beyond the remit of this site, as this is a question and answer site.

Alex Watts :

Legal research can take a number of hours

Alex Watts :

But there is a free legal resource you can search for case law

Alex Watts :

http://www.bailii.org/

Customer:

is it worth me doing a google search - if so under what terms?

Alex Watts :

The leading cases on nuisance and noise are:

Alex Watts :

http://www.e-lawresources.co.uk/Nuisance.php

Alex Watts :

As for loss of chance:

Alex Watts :

http://www.keatingchambers.co.uk/resources/publications/2005/st_certainty_and_loss.aspx

Alex Watts :

Does that help?

Customer:

alex - thanks - i think we have taken this as far as we can reasonably go. - pb

Alex Watts :

Yes and I hope this gives you a way forward

Alex Watts :

If I could invite you to rate my answer before you go today

Alex Watts :

If the system wont let you please say

Alex Watts :

If you need more help from me please click reply

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