The First Hall of the Civil Court, presided over by the Judge Joseph Zammit Mc Keon in the case ‘Austin Engerer and his wife Barbara Mary Engerer v Ludwig Nuchter’, on April 30, 2015, held, among others things, that to measure the gravity of the case relating to a breach of property rights, one had to take a number of factors into consideration, such as the cause of the problem, the condition and position of the properties, their use and whether the defendants who were allegedly causing the breach were living in the property before the plaintiffs complained about the breach.

The plaintiffs filed a lawsuit against the defendants in the First Hall of the Civil Court, wherein they alleged that the defendants were depriving them of their right to enjoy their property. They stated they owned two properties in Siġġiewi called Ta’ l-Għolja and Casa San Lawrenz, and the said properties were adjacent to a property owned by the defendants. The plaintiffs alleged that:

• The defendants built two aviaries wherein they kept a large number of noisy exotic birds which included parrots. The first aviary was soundproof, however, the defendants failed to take similar precautions when they constructed the second aviary despite various requests made by the plaintiffs to make it soundproof as well;

• The noise caused by the birds that were kept in the second aviary exceeded the limits laid down in the World Health Organisation’s Guidelines for Community Noise;

• The noise caused damage to plaintiffs’ health, as was made clear in medical reports. Furthermore, they were being denied the right to enjoyment of their property.

The defendants started constructing a third aviary and for this reason the plaintiffs asked the defendants to make the third aviary soundproof but the defendants ignored the request.

The defendants had no plans to decrease the noise coming from the second aviary and the noise that would be caused when the third aviary would be completed, since the defendants ignored the letter dated February 3, 2009, that they received from the plaintiffs’ lawyer.

The noise caused by the second aviary exceeded the limits of tolerance laid down in the WHO Guidelines. If the third aviary was not going to be made soundproof, the noise would continue to increase, exceeding the limits of tolerance allowed by law.

The plaintiffs requested the court to declare that the defendants were preventing the plaintiffs from enjoying their property because of the excessive noise that was coming from the defendants’ property.

The defendants, on the other hand, pleaded that insofar as the third aviary was concerned, the plaintiffs had no right to allege that they were suffering an inconvenience because of the noise since the construction of the third aviary was not even completed. Furthermore, the plaintiffs’ requests with regards to the other aviaries could not be accepted because these aviaries were built in accordance with relevant permits before the plaintiffs went to reside in the property. Furthermore, they had every right to breed birds in their property as they had done for many years before the plaintiffs went to live in the area.

The defendants stated that the complaints were unfounded since the properties were situated outside a development zone and consequently, when it comes to levels of noise, the rules regarding the levels of tolerance are not all that strict. The rules regarding the levels of noise are much stricter when property is situated in a developed area.

The plaintiffs submitted that this case revolved around the limitations that are imposed on the right to use of property. Article 320 of the Civil Code provides that: “Ownership is the right of enjoying and disposing of things in the most absolute manner, provided no use thereof is made which is prohibited by law.”

They took the view that the defendants’ actions exceeded the limits of what is considered to be tolerable. Good neighbourliness requires the owner of a property to ensure that his neighbour does not suffer any inconvenience which goes beyond what is acceptable.

The court had to consider the limits of tolerance within the circumstances of the case, that is, with reference to the amount of noise there was at the time when the lawsuit was filed and when the defendants constructed the other aviary.

The plaintiffs alleged that the problems began when the second aviary was built and they claimed that the evidence submitted indicated that the level of noise went beyond the limits of tolerance.

Meanwhile, the defendants submitted that the courts have taken the view that a property owner has the right to make full use of his property in a way that would not prejudice the rights of others. The defendants held that neighbours must put up with actions of property owners provided that such actions do not exceed the limits of tolerance.

When the expert witness paid a surprise on-site visit on three occasions and at the times suggested by the plaintiffs, he did not hear any noises which amounted to a disturbance

One had to establish whether the complaints made by the plaintiffs fell within the parameters of what is tolerable.

The expert witness, that is, architect Mario Cassar concluded that the noise did not cause any disturbance; and that the readings he took fell within the parameters of the WHO guidelines.

Other evidence indicated that the plaintiffs started to complain about the noise when the defendants began to construct the third aviary. Consequently, what was really disturbing the plaintiffs were not the noises coming from the defendants’ property but the fact that they were constructing more aviaries. The defendants alleged that the plaintiffs’ claims regarding the third aviary were unjustified because the court must not make decisions about hypothetical situations.

The plaintiffs claimed that the noise was making them suffer from anxiety and sleep deprivation but the defendants revealed that the medical certificates which the plaintiffs submitted were prepared by a consultant chemical pathologist, that is, a person who works in a laboratory where blood tests are conducted. Therefore, a consultant chemical pathologist is not the right person to ascertain whether the plaintiffs suffered anxiety and lack of sleep.

In order to come to its decision, the court relied heavily on the conclusions of the expert witness and on the decisions taken by the courts in the judgments ‘John Testa v Anthony Bruno et noe’ (Court of Appeal, May 30, 1988) and ‘Alexander Grech et v Mamma Mia Company Ltd et’ (First Hall, of the Civil Court, February 7, 2012).

The court noted that the expert witness concluded that the noises made by the birds were not causing disturbance to the plaintiffs. In fact, the expert witness testified that there was no noise during the night. It quoted the WHO guidelines which state that:

“In an outdoor living area, there would be a grave disturbance by day and by night if the level of noise reaches 55dB and there would be moderate disturbance if the level of noise reaches 50 dB;

“In a dwelling indoors, there would be moderate disturbance if the noise reaches 35dB;

“Inside bedrooms there would be sleep deprivation if the noise reaches levels between 30 and 45dB;

“In outside bedrooms when the window is open there would be deprivation of sleep if the intensity of the noise outside would be between 45 and 60dB.”

The dBA is the decibel A-weighting and that is the measurement of noise in the environment.

The highest reading which the expert witness took inside the plaintiffs’ residence was 48dB.

The highest reading that was taken by the expert witness next to the aviaries was 52dB. When the plaintiffs went to live in the property called Ta’ l-Għolja they knew that they were going to live next to a property wherein the defendants bred parrots.

They were aware of this because they had already resided in that area in another property called Casa San Lawrenz.

Evidence indicated that the properties were situated outside a residential zone, that is, Outside Development Zone. The defendants went to live there so that they could breed parrots.

These were the factors which the court needed to take into consideration in order to establish whether there was a breach of the plaintiffs’ rights which was sufficient to justify the imposition of a limitation on the defendants’ right to use of their property.

It appears that the plaintiffs filed this lawsuit because they feared that there might be more noise in the future when the construction of the third aviary would be completed.

This fear arose when the plaintiffs discovered that the defendants were applying with the competent authorities for permission to build other aviaries.

The court observed that to measure the gravity of the case, one had to take a number of factors into consideration such as the cause of the problem, the condition and position of the properties, their use and whether the defendants who were allegedly causing the molestation were living in the property before the plaintiffs complained about the molestation.

It transpired that when the plaintiff was cross-examined, he stated that when he went to live in Casa San Lawrenz, the defendants’ parrots were already being kept in the defendants’ property.

The court also noted that when the expert witness paid a surprise on-site visit on three different occasions at the times suggested by the plaintiffs, he did not hear any noises which amounted to a disturbance. The court took all evidence, facts and circumstances into account and it agreed with the view taken by the expert witness.

In conclusion, the court accepted all the pleas and claims made by the defendants and it rejected all the plaintiffs’ requests.

Rebecca Micallef is a lawyer at Ganado Advocates.