Retired lawyer fails in nuisance claim over neighbours’ noisy toilet

Retired solicitor James Morris and his wife Carol Morris, a former court shorthand writer, described the noise from the toilet and shower system’s macerator and pump as “akin to a motor bike or chain saw”, but a sheriff ruled that the couple had “considerably exaggerated” their claim.

‘Loud growl’

Kirkcaldy Sheriff Court heard that the pursuers, who had lived together at the old cottage property in the Fife seaside town of Kinghorn since 2010, raised an action against the defenders Robert Curran and Maria Curran after enduring years of what they described as “intolerable” noise and disruption to their daily lives and sleep.

The defenders, who live and work in Hawaii, purchased the upstairs property in 2016 as part of a long term plan to return to Fife, but in the meantime decided to use it as a holiday rental for family and friends and for others through Airbnb.

Sheriff Grant McCulloch was told that prior to its purchase by the defenders, the property belonged to Amanda Poole, who used it as a holiday home from 2012.

Although her use of it was infrequent, she had instructed major renovations to be carried out, which had caused conflict with the pursuers due to the noise and vibration caused by the work.

This included installation of a Saniflo macerator, but while the pursuers had complained about other noises and vibrations, no complaints about the new toilet system were made to her during her ownership of the flat.

After their purchase of the property, the defenders asked a local person to assist with letting of the flat, following which they received a regular series of complaints from the pursuers about guests arriving and leaving, the noise of the washing machine, heavy footsteps across the floor above, leaks from the shower above, and the noise from the Saniflo.

To remedy the issues the defenders instructed the removal of the washing machine, to be replaced by a dishwasher, carpets were laid throughout with the exception of the kitchen, and plumbers fixed the leaks from the shower.

A Saniflo engineer who was also called to check on the system confirmed that the unit was “working well, within its parameters of time and noise”.

However, the pursuers - who kept a diary of all noise events - described the Saniflo as making a noise “akin to a motor bike or chain saw”, and at other times to a “loud growl” every day the property was occupied.

‘Nuisance’

The retired couple believed there was “inadequate insulation” between the properties, and while they accepted that various types of noise such as hoovering were “reasonable”, the Saniflo noise was “intolerable”.

The pursuers gave evidence of the disruption to their daily lives and sleep patterns, and referred to a report from a sound engineer who said the noise from the macerator met current standards but could exceed World Health Organisation (WHO) guidelines.

They sought declarator that the noise constituted a “nuisance”, claiming that it was a “serious disturbance” and “substantial inconvenience”.

But the court also heard that evidence from a building surveyor, who “did not note excessive noise” that would be perceived as being audibly loud to the human ear, either from the macerator or the pipes, and certainly “nothing like a motor cycle or chain saw”.

A plumber also gave evidence that the system was “operating properly”, adding that it was “neither the quietest nor the noisiest” he had come across.

The defenders’ position was that they been “accommodating” and had resolved all other complaints, adding that they were “hamstrung” by the nature of the old building and poor soundproofing.

The macerator only made the noise that macerators make, but it was “not excessive”, and other than the pursuers no witness spoke of excessive noise or defective operation of the system.

The defenders argued that the pursuers had become “obsessed” with others using the flat upstairs and had “grossly exaggerated” the issue, adding that the complaints were an attempt to end use of the property as rental accommodation.

‘Occasional annoyance’

Dismissing the action, the sheriff ruled that the noise and vibration from the Saniflo unit did not constitute a nuisance.

In a written judgment, Sheriff said: “I found the Pursuers to be largely truthful in their evidence, but that it was often exaggerated to the extent it became rather unreliable. I considered that they had become totally fixated on the noise from above, as evidenced by the recording of every arrival and departure, every flush of the toilet and just about every footstep (pre carpets).

“This made them appear to be obsessed with what went on upstairs, and I am satisfied that they would like the Defenders to stop letting the flat out altogether, as that would return things to the way it had been with the Pooles, and before.

“I consider that, short of removing the Saniflo, and/or installing considerable sound proofing, the Defenders have done all that they could be mitigate any noise impact from their property.

“In the present case, the pursuers have proved that on infrequent occasions, the use of the macerator and pump may have woken them from sleep at night. It can be heard at other times of the day, in the same way as a TV can be heard in a neighbouring property, or footsteps heard walking across an uncarpeted room, or a lorry passing outside.

“It is part and parcel of living in a flat in a town. It cannot be said that the use of the Saniflo causes a nuisance per se; it at best can be said to be an occasional annoyance, particularly at night.

“I do not consider that this occasional annoyance reaches the standard required to be considered as a nuisance in law, having regard to its nature, and all the surrounding circumstances. It is not substantial or material.

“The assessment of what might be reasonably intolerable is taken from an objective standpoint of the victim’s perspective rather than that of the alleged offender or the actual victim. In this case, I have found that the pursuers have become obsessed with the noise from above.

“Silence is not a right to be enjoyed by downstairs proprietors. I consider that the pursuers have considerably exaggerated their evidence regarding the noise of the macerator, given the evidence of other witnesses, including their own experts.

“I am sure that there are steps that could be taken… to mitigate such night time noise that can occur, such as no use of the Saniflo between certain hours, or no showers between certain hours, or the installation by both parties of better sound proofing between the joists; but as the Pursuers have failed, in my opinion, to make out that the noise from the Saniflo macerator is intolerable and thus a nuisance in law, I am not able to grant the declarator sought. Accordingly, the action is dismissed.”