Syarikat Perniagaan Selangor Sdn Bhd

- vs -

Fahro Rozi Mohd

Judgment

M.T. Chang FJ

(delivering the judgment of the Court)

1. This is an appeal from the decision of the High Court to grant an injunction against the appellant to prevent it from so using its land as to cause annoyance by noise to the neighbouring landowners. Specifically, the order restrains the appellant and its servants and agents from operating or permitting to operate

   1. music bands with singers from open air stages and

   2. the generator for the discotheque on its land until the trial of the action or until order.

   Behind the first limb of the order is clearly the electronic amplification of live music and songs.

2. Save in one respect, the open-air cinemas, this order is substantially what the respondents in their joint action have asked for. The judge made the order for an injunction in the full realisation of this.

3. The appellant holds a lease over nearly 8½ acres of land which includes a lake. The conditions of use are stated in the lease to be: In English,

   Expressed Conditions The land which has been given the title can only be used as a tourist complex (skating rink, restaurant, drive-in cinema), and cannot be used for other purposes except with the consent of the State Authority.

4. Despite the clear restriction of use to a skating rink, restaurant and a drive-in-cinema and the express prohibition of any other use, the appellant built an open-air stage on the lake on which a music band and sometimes two music bands operated with live singers. It also floated a junk as a discotheque, which as we understand this modern term, is a place for the reproduction of recorded music. As we have observed earlier on, it is reasonably certain that amplifiers were used, the sounds were greatly magnified and carried over a greater distance than they would, unassisted, do, from the users’ point of view, to attract customers, but alas, from the neighbours’ point of view, to constitute an annoyance.

5. Noise in urban society there inevitably will be. Anyone living in town must expect to have to put up with a certain volume of noise from his neighbours and he, in turn, must have the right to make a certain amount of noise in the enjoyment of his property. But it is just as clear that no one has the right to create a volume of noise of such intensity and no one should be asked to put up with such a volume which by any reasonable standard becomes a nuisance.

6. As Lawton LJ says in Kennaway v Thompson [1980] 3 WLR 361, 366 at page 366:

   Now nearly all of us living in these islands have to put up with a certain amount of annoyance from our neighbours. Those living in towns may be irritated by their neighbours’ noisy radios or incompetent playing of musical instruments and they in turn may be inconvenienced by the noise created by our guests slamming car doors and chattering after a late party. Even in the country the lowing of a sick cow or the early morning crowing of a farmyard cock may interfere with sleep and comfort. Intervention by injunction is only justified when the irritating noise causes inconvenience beyond what other occupiers in the neighbourhood can be expected to bear. The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way and there must be a measure of give and take, live and let live.

7. The appellant’s first contention that as the registered and legal owner of the land, it can use its land in any manner it pleases it to use, no matter what the effect on the neighbours may be, is unsupportable by law or reason or good sense and must be rejected outright. Except to the deaf or hard of hearing or to those to whom noise has no appreciable significance or to those to whom the noise they deliberately create means the clicking of their money tills, noise above a certain level becomes a nuisance and can be stopped by the inherent powers of the court to regulate the lives of the people.

8. The three respondents have put themselves on affidavit about the noise created by the appellant on the open-air stage and discotheque. They come from various walks of life. They complain that the level of the noise is intolerable. One of them had already lost a good tenant who would not have moved out of the premises but for the noise, night after night. The appellant appeared at first to have conceded that the noise level was too high and was prepared to be conciliatory. It agreed to moderate the re-production of the sounds but the respondents found no moderation or even relief.

9. Mr. Chin who appeared for the appellant both in the High Court and before us submitted that the test was whether the noise was excessive. He would appear to have based his contention that it was not because of the distance separating the respondents’ houses from the sources of noise. But he made no concession to the amplification of the noise by electronic means, a process to which there appears to have no limitation and which would make nonsense of the distance of between 100 and 200 yards that lay between the houses and the sources. The learned judge accepted the evidence as establishing that the noise is intolerable and was an actionable nuisance.

10. We agree and we dismiss the appeal with costs.

Cases

Kennaway v Thompson [1980] 3 WLR 361

Representations

CF Chin for the appellant.

KH Chong for the respondent.