Fish, Chips And Nuisance Please

• Published date: 26 October 2022
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Real Estate, Landlord & Tenant - Leases
• Law Firm: Gatehouse Chambers
• Author: Mr Kort Egan

During the summer break some were faced with the question of what to order with their fish and chips. The High Court in Bristol had to consider whether fish and chips were being served with a side order of private nuisance in the Cotswolds. The case of Diana Effie Elliott Ray v Windrush Riverside Properties Limited [2022] EWHC 2210 (TCC) is an interesting case study of the law concerning private nuisance.

Facts

The Claimant, Mrs Ray, was the owner of a property in Bourton-on-the Water referred to in the judgment as "Kevinscot". The Defendant, "Windrush", was the owner of an adjoining property, "St Kevins".

Mrs Ray did not live at Kevinscot at any times material to the proceedings. From the early 2000s until 2015 Kevinscot had been used as The Living Green Centre, a sustainable lifestyle demonstration open to day visitors. In 2015 Mrs Ray obtained planning permission for a change of use at Kevinscot so that it could be let as holiday premises which would be suitable for occupation by disabled people. The house was adapted to provide four bedrooms.

Windrush acquired ownership of St Kevins in October 2006. At that time the property was occupied by two tenants. One of them operated a tea room and café as well as a fish and chip shop tale away from the main building and the other ran a newsagent from the smaller adjacent premises.

In 2016, Windrush's associated company, De La Haye Restaurants Limited ("DLHR") took over the food outlet business known as the 'Windrush Restaurant'. In July 2017, following the departure of the second tenant and the closure of the newsagents, Windrush obtained on appeal permission for a change of use for a hot food takeaway in place of the newsagent.

Building works at St Kevins were then undertaken to enable the part previously run as a newsagent to operate as a dedicated fish and chip takeaway with the rest of the premises being run as the enlarged Windrush Restaurant. The works extended to the installation of air intake and extraction fans and flues, air conditioning units and a detached refrigeration unit at St Kevins ("the Mechanical Plant").

Both the restaurant and takeaway closed for business in late March 2020 as a result of the coronavirus pandemic and did not reopen. In October 2019, Windrush agreed to sell St Kevins to the pub chain Fuller, Smith & Turner PLC ("Fullers").

The pleaded positions

Mrs Ray alleged that during the period of operation of the expanded food business, between March 2018 and April 2020 exclusive...