The building works considered in the recent judgment Re St. Paul North Shore Blackpool [2024] ECC Bla 6 raised the possibility of an action in common law nuisance by the complainants, and the associated human rights implications.

Background

The church of St. Paul North Shore Blackpool was formerly a church hall built in 1898 and became a parish church after the original church was demolished in about 1992. The unlisted building has no special architectural or historic, and no significant archaeological interest [1]. The parish is in one of the most deprived areas of the country, and the church is very much needed for all age groups.

The church building is open for worship services on Sundays and Wednesdays, and also every other day for community activities. The toilets serving the building are long past their best, with tiles falling off the ceilings and the plaster around the windows falling out. the parish also need to provide meeting spaces for local groups, and a safe space for people to have conversations about occasional offices and pastoral concerns [2].

The petitioners sought to convert the existing men’s toilet block on the north of the altar into an office and to rebuild the ladies’ toilets, at present on the south side of the altar, as four unisex toilets including one with wheelchair access [3]. There is a private house adjoining the ladies’ toilets.

The PCC was fully supportive of the scheme, and the DAC recommended approval by the court [4]. Hodge Ch. stated that the Petition satisfied the Duffield criteria, and “had this been all, it would not have been necessary to issue a formal written judgment”. However, the faculty application had generated two objections, albeit from two persons sharing the same interest and advancing the same, non-Duffield, grounds [7].

The neighbours at the adjoining house wrote a letter of objection, their main objection being noise disturbance [8]. The DAC sympathised with the comments and suggested that this should be something they should raise with their landlord, who might be able to help with soundproofing. However, it did not consider it appropriate to make further comment because it was unable to verify whether the existing toilets create excessive noise through the party wall [11].

Analysis and conclusions

The Chancellor observed [emphasis added]:

“[14] In my judgment, it is not possible, appropriate, or necessary, for this court to adjudicate upon the substantive merits of the objections received…The court notes the petitioners’ assertion that the existing “toilets have been located in that position for nearly sixty years and this is the first time that we have received any complaints”. In common with the DAC, this court is unable, at least without the benefit of expert evidence, to verify whether the existing ladies’ toilets create excessive noise through the party wall. Nor is it clear whether refurbishing the existing ladies’ toilets will ease the situation or make it worse…

…It is no[t] part of the function of the consistory court to adjudicate upon complaints of nuisance to adjoining land; that is a matter for the civil courts. Nor does the grant of a faculty authorizing particular works operate to render them immune from challenge in the civil courts, in accordance with the general law governing the tort of nuisance. Just as the grant of planning permission cannot render works immune from challenge under the civil law of nuisance, neither can the grant of a faculty by the consistory court. The grant of a faculty merely renders the carrying out of the works thereby authorised immune from challenge under ecclesiastical law, or (in the case of a listed building) from challenge for want of secular listed building consent. It does not operate to derogate from any rights enjoyed by the church’s neighbours under the general law of nuisance”.

Citing Lawrence v Fen Tigers Ltd [2014] UKSC 13, Hodge Ch. noted that the Supreme Court had considered the law governing the tort of nuisance by interference with the enjoyment of land; the SC held that the existence of planning permission is not a major determinant of liability for the tort of nuisance. In the instant case, it was not necessary for the consistory court to have regard to principles of law derived from the European Convention of Human Rights.

In a later case of nuisance by interference with the enjoyment of residential property (Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4), the Supreme Court made it clear that there is no need, or any justification, for invoking human rights law when the common law has already developed tried and tested principles, under the tort of nuisance, which determine when liability arises for this type of legal wrong [16].

However, that does not mean that the court should ignore the objectors’ concerns entirely, and noting the Second Commandment, he invited the petitioners to consider whether they can accommodate their neighbours’ concerns by reversing the locations of the proposed unisex toilets and the new office, so that it is the new office, rather than the toilets, that immediately adjoins the party wall between the church building and the objectors’ home. “If this can be done without causing any inconvenience to the parish, and at no material additional financial or other cost, then, as good neighbours, the parish should seek to adopt this as a solution to their neighbours’ concerns. If this is not practicable, then the parish should seek to introduce acoustic insulation to the party wall between the church building and the objectors’ home” [17].

He granted the faculty sought, but with permission for the petitioners to reverse the locations of the proposed unisex toilets and the new office, so that it is the new office, rather than the toilets, that immediately adjoins the party wall between the church building and the objectors’ home. If this is not practicable, there will be a condition that the petitioners are to use their reasonable endeavours to introduce acoustic insulation to the party wall between the church building and the objectors’ home…(with permission for the petitioners to apply to the court by letter for this condition to be varied or relaxed). [18].