The First Hall of the Civil Court presided by Mr Justice Joseph Zammit Mc Keon in the case Carmel sive Charles Gruppetta, Ġemma Gruppetta, Gordon Axiak, Ingrid Axiaq, Johan Agius and Fabianne Agius vs Paul Azzopardi and by decree of May 4, 2007, Paul Azzopardi was substituted by Paparukei Catering Ltd on July 14, 2011 held among other things that a person residing in a residential zone was not expected to suffer excessive noise and vibrations in excess of the limits of tolerance from his neighbour.
Charles Gruppetta, Ġemma Gruppetta, Gordon Axiak, Ingrid Axiaq, Johan Agius and Fabianne Agius, all neighbours residing in a block of apartments at 160, The Strand Gżira complained of excessive noise and vibrations from an adjoining building, Paparukei Confectionary.
It was stated that the company’s three large fridges and freezers were generating excessive noise and vibration. The noise was continuous, particularly at night and in the early hours of the morning which seriously disturbed the neighbours.
Several reports were made with the police, at the Sliema district police station.
Criminal proceedings were also taken against Paul Az-zopardi.
On March 21, 2007, the Criminal Court had found him guilty of disturbing his neighbours.
He was fined Lm50 and was given three months to rectify the situation.
Despite this sentence, Mr Azzopardi carried on with his activities, from the premises without any change and the noise continued.
Faced with this situation, Charles Gruppetta, Ġemma Gruppetta, Gordon Axiak, Ingrid Axiaq, Johan Agius and Fabianne Agius proceeded by instituting legal proceedings against the company Paparukei Catering Ltd.
They requested the court:
To declare that the noise from the outlet of Paparukei Confectionary was excessive and irritating; to their detriment and inconvenience; and
To order the company to stop with immediate effect the noise under such condition to be imposed by the court.
The neighbour reserved to take such ulterior action in case of non observance of the court order.
In reply, the company contested the legal action. It denied all allegations, that its appliances were creating excessive noise.
On July 14, 2011, the First Hall of the Civil Court decided in favour of the neighbours and declared that the noise from the company’s establishment exceeded the limits of tolerance, expected from a good neighbour.
The following reasons were given for its decision.
The technical expert appointed by the court measured on site the sound and pressure level. The noise was intermittent but regular in frequency. The company’s freezers and fridges worked with a timer and/or were triggered by temperature variations.
The technical expert concluded that the neighbours were, in fact, inconvenienced by the noise and vibrations from the company’s appliances.
It resulted that the company used the ground floor as a shop and the first floor as a factory, to manufacture its products.
He reported that it was not ideal for industrial appliances to be kept in a residential zone.
In Calleja noe vs Mifsud (CA) dated November 19, 2001, it was held that the expert’s report should be considered by the court as evidence. Though the court was free to ignore the expert’s report, it should not discard it without good reason. In cases where the court had to decide a technical issue, it should seek the assistance of an expert. The court could consider it critically and if it was not satisfied or if it felt that the report did not deal adequately with the technical issue, it could ignore it; Grima vs Mamo et noe (CA) dated May 29,1998.
It could also not rely on the report if it was unfair and unreasonable; Bugeja et vs Muscat et (CA) dated June 23, 1967.
It noted further that in this case, there was no request for the appointment of additional experts nor was the report challenged by any of the parties.
The court said that a civil lawsuit before the First Hall Civil Court could be filed independently of criminal proceedings, even if the facts were the same.
Neighbour were obliged to tolerate a certain amount of inconvenience from their neighbours, provided this was not grave and not in excess of the limits of tolerance: Muscat vs Falzon Kollezz Vol XXXVI.I.223; Testa vs Bruno et noe C.A. dated May 30,1988.
If the noise, however, was excessive, it should not be permitted, in the interests of the neighbours, especially if the inconvenience was objectively serious, substantial and not reasonable.
It resulted that the noise from the company’s premises had a negative effect on the immediate surroundings and clearly inconvenienced the neighbours.
The fact that the company had a valid licence was not relevant, the court pointed out. A company in possession of a licence had no right to inconvenience third parties. If people’s rights were molested, they had the right to take the necessary action, (CA) Farrugia et vs Borg et dated June 17, 1955. The use of appliances had to be within the limits of law. It should not be a source of inconvenience to neighbours, in particular when the activity was carried out in a residential zone:- (CA) Police vs Cuschieri et dated January 16,1946.
The court said that in this case it clearly resulted that the neighbours were suffering an inconvenience.
The company was responsible for its actions as it exceeded the limits of what a good neighbour could do.
The expert appointed by the court, confirmed that in the circumstances the noise was excessive for a residential area; that the neighbours were molested and had a right to request a remedy from the Court: Bugeja vs Washington Kollezz Vol XVI.I.38 and Briffa vs Aquilina (CA) dated April 15, 1966.
For these reasons, the court concluded that the noise and vibrations from the company’s premises inconvenienced and molested the rights of plaintiffs, all neighbours, residing in block 160, The Strand, Gżira.
The court ordered that from the date of this decision all fridges and freezers in the company’s establishment had to be switched off.
Dr Grech Orr is a partner at Ganado & Associates.