‘From fryers to frustration’: legal tensions in mixed-use developments

In this piece, we explore the legal issues that could arise in mixed-use premises where different uses conflict with each other. Specifically, it addresses the potential for noise and smells to constitute a nuisance, the liability of landlords for such nuisances, and the remedies available to address these issues.

What issues arise?

Increasingly town centres are being regenerated to include a more diverse mix of commercial and residential properties.  For example, in Tunbridge Wells, the local authority who acquired the Royal Victoria Place shopping centre in 2023 are considering redeveloping part of the centre which would include up to 100 new homes. So what could possibly go wrong?  One of the issues both landlords and tenants must consider in a scenario where a restaurant or other food and drink operator is located next to residential accommodation is the potential for legal issues to arise if noise or smells interfere with the comfort and enjoyment of the neighbouring residents. In some circumstances it might give rise to a nuisance claim.

Analysis

A nuisance is an unlawful interference with a person’s use or enjoyment of land. This can include smoke, fumes, or smells from cooking or waste disposal. A private nuisance typically involves substantial and unreasonable interference with the use or enjoyment of neighbouring property.

Noise can also constitute a nuisance if it materially interferes with the comfort of neighbours, judged objectively and considering the character of the neighbourhood.  Noise might arise from restaurant operations including noise from customers as well as the noises created by cooking, cleaning and deliveries.  These issues could materially affect the enjoyment of the residential residents above. Landlords need to be aware that they may be liable for nuisance caused by their tenants if they authorised the nuisance by letting the property for a purpose where a nuisance was likely to arise or if they directly participated in the nuisance. A landlord would not be liable if the premises were let for a purpose that could be achieved without causing a nuisance, and the tenant independently created the nuisance. Landlords should take care to understand how their tenant’s operation is going to work and ensure that adequate measures are in place to minimise the potential for interfering with neighbours. This can be achieved through a mix of clear lease terms, physical mitigation and operational restrictions.

Whether a noise constitutes a nuisance involves an objective assessment, considering the character of the neighbourhood. For instance, a restaurant in a predominantly residential area may be more likely to be deemed a nuisance than one in a commercial area.

Residents affected by noise or smells have several remedies. They may seek an injunction to prevent or manage the nuisance, or pursue proceedings for private nuisance. Statutory remedies under the Control of Pollution Act 1974, such as noise abatement zones, may also be available.

Final thoughts

As mixed-use developments proliferate, so too will the legal complexities surrounding nuisance. Developers, landlords, and tenants must navigate a delicate balance between creating a vibrant community and protecting individual rights. Legal foresight, thoughtful design, and robust lease provisions are essential to prevent disputes and foster harmonious coexistence.

This article was published in the July edition of Property Perspectives.

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