In its recent judgement in the case of Coventry v Lawrence [2014] UKSC 13, the UK Supreme Court has discussed some of the key aspects of the private nuisance. However, whilst their lordships have clarified certain elements of the tort, their judgements have raised further important questions.
Factual background
In 1975, planning permission was granted for the construction of a speedway stadium near Mildenhall, Suffolk. In 1997, a certificate was issued by the local planning authority confirming that stock car and banger racing had also become lawful at the stadium. Additionally, since 1992, planning permission had authorised the use of an area to the rear of the stadium as a track for motocross racing. In 2006, the claimants purchased a residential property within 860 metres of both the stadium and track. Within a few months of having moved in, the claimants complained about the level of noise emanating from the stadium and the track to the defendants, who owned and operated the sites. Although some attenuation works were carried out by the defendants, the claimants eventually brought proceedings alleging that the noise constituted a private nuisance and seeking an injunction to restrain the activities at the stadium and track.
At trial, the High Court ([2011] EWHC 360 (QB)) held in favour of the claimants, granted the injunction and awarded damages in respect of the previous loss that they had suffered. The Court of Appeal ([2012] EWCA Civ 26) subsequently allowed the defendants’ appeal.
The Supreme Court’s judgement
On appeal by the claimants, the Supreme Court was asked to consider 5 issues.
1. Is it possible to acquire a prescriptive right to commit what would otherwise be a nuisance by noise?
Lord Neuberger (giving the lead judgement) held that it would be possible for a defendant to acquire a prescriptive right to transmit sound waves over neighbouring land. The right must be exercised over a 20 year period but his lordship added that mere non-exercise of that right for two out of 20 years was not of itself fatal to the establishing the right. However, it was not enough to show that the defendant had created a noise over 20 years – the activity must also constitute a nuisance over that period.
2. Is it any defence to show that the claimants came to the nuisance?
At first, Lord Neuberger observed that it was established law that it was no defence to show that a claimants came to the nuisance some 31 years after the activities complained of first began. However, he then suggested that there may be a defence where it is only because a claimant has changed the use of, or built on, their land that a pre-existing activity is claimed to have become a nuisance. These additional comments potentially open up what had previously been a straightforward principle. For example, if a claimant built an extension onto an existing house, could the defence become available?
3. What is the relevance of the defendants’ activities to the character of the locality?
In order to determine whether a defendant’s user of its land is reasonable, a court must consider that user in the context of the character of the locality. For Lord Neuberger, to the extent that a defendant’s actions do not constitute a nuisance, they can be borne in mind when considering the character of a locality. However, his lordship stated that to the extent that the defendant’s actions are unlawful (in particular, in so far as they constitute a nuisance), they must be disregarded. Therefore, in the present case, the character of the locality included the defendants’ speedway stadium and track, but only to an extent that those lawful activities would not cause a nuisance.
4. What is the relevance of the defendants’ planning permission to liability?
It has been settled law since Wheeler v J J Saunders Limited [1994] EWCA Civ 8 that planning permission cannot of itself authorise a nuisance. However, cases such as Allen v Gulf Oil Refining Limited [1980] UKHL 9 make it clear that the implementation of planning permission may, over time, cause the character of a locality to evolve so that what would once have constituted a nuisance no longer does so. Lord Neuberger noted that it would be wrong in principle for a planning authority to deprive a property owner, through the grant of planning permission, of the right to object to what would otherwise constitute a nuisance without providing for compensation. Yet, his lordship conceded that there will be occasions where the grant of planning permission will be of relevance in nuisance cases. Lord Clarke agreed that planning permission can be relevant to nuisance liability, but that it would be dependent on the facts.
5. What approach should be taken as regards remedies?
Lord Neuberger accepted that the basic position in private nuisance cases was that an injunction should be granted, so the onus would be on the defendants to show why one should not be. However, in one of the most controversial aspects of the judgement, his lordship stated that the grant of planning permission may be evidence that the carrying on of the activity which is permitted, but which causes the nuisance, is of benefit to the public. Accordingly, in such cases, it may be more appropriate for damages to be awarded rather than an injunction. Lord Sumption went further and suggested that, as a matter of principle, an injunction should not be granted in a case where a use of land to which objection is taken requires and has received planning permission. He considered that the leading authority on the primacy of injunctia as remedies in nuisance cases (Shelfer v City of London Electric Lighting Co (No.1) [1895] 1 Ch 287) was now out of date. By contrast, Lord Carnwath stated that he would not regard the grant of planning permission for a particular use as, in itself, giving rise to a presumption against the grant of an injunction.
Conclusion and analysis
The decision of the Supreme Court has provided useful guidance about rights of prescription and the impact of a defendant’s own activities in the context of private nuisance. However, there remain uncertainties associated with the position where a claimant comes to a nuisance, the relevance of planning permission to liability in nuisance and what remedies are available.
One of the most interesting sections of the 69-page judgement is within the judgement of Lord Carnwath who noted the overlapping functions of planning controls and the law of nuisance and that, consequently, a tension may exist between them. His lordship observed that planning permissions generally represent society’s view of the appropriate balance of uses in a particular area, taking account both of the social needs of the area and of the maintenance of an acceptable environment for its occupants. Accordingly, his lordship considered that private nuisance’s position has been reduced to a residual role to ensure that new or intensified activities do not lead to conditions which, within the pattern of established uses, go beyond what a normal person should be expected to put up with. So far as private nuisance is concerned, therefore, there is an apparent recognition that, in the twenty-first century, public law decision-making has assumed primacy over private property rights.
