This article first appeared in Property Law Journal.

Every person is entitled, as against his neighbour, to the comfortable enjoyment of their premises, free from nuisance. The recent Court of Appeal decision of Coventry illustrates that whether or not something is a nuisance will depend on the locality in which the complainant is living.

The starting position is the comments of Thesiger LJ in Sturges v Bridgman [1879]: “ whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private and actionable wrong”

Working from that principle, case law has focused on the significance of “local” factors and their impact upon the law of nuisance. One area that has received particular attention is the significance of planning permissions.

The grant of a planning permission which authorises an activity which causes a nuisance does not necessarily mean that the nuisance ceases to be actionable. The grant of planning permission is concerned with land use and focuses on public interest considerations and is not concerned with private rights. However where the implementation of that permission results in a permanent change in the nature of the locality then it may affect what will constitute an actionable nuisance.

The facts of Coventry

The case concerned three pieces of land at Mildenhall in Suffolk. The first piece of land was a stadium which was used for speedway and stockcar racing. The second piece of land was a moto-cross track and was adjacent to the stadium.

The Claimants owned the third piece of land, which was known as “Fenland”. This was a residential property. "Fenland" was 560 metres from the centre of the stadium and 864 metres from the centre of the motorbike track. They purchased and occupied Fenland from January 2006. One of the claimants worked from home. The other was a fireman who worked shifts. Fenland was surrounded by agricultural land. It was a mile and a half from the nearest village and a half mile from any other residential properties.

The Claimants alleged that the use of the stadium and the track generated noise which constituted a nuisance from the date they moved into Fenland. The claim was brought against the company, Fen Tigers Limited, which promoted the speedway racing and David Coventry and his brother Ronald, who were the freehold owners of the stadium, together with their predecessors in title who had owned the stadium until 4 April 2008. The claim was also brought against the freehold owner of the track.

The nuisance related to engine noise, air horns, music and tannoy announcements. The Claimants complained that the noise meant that it was impossible to be in their garden and to work in their homes and in order to exclude the noise they had to put their televisions on at a loud volume. This was corroborated by reports filed by local environmental health officers.

The Defendants took steps to reduce the noise, on one occasion (on the advice of their acoustic consultants) constructing a 12 foot high straw bale wall close to the boundary of the Claimant’s property. Unfortunately this overshadowed the Claimant’s garden and was interpreted as an attempt at intimidation. The wall was then removed. Some enforcement action was taken by the relevant authorities but the Defendants cooperated and carried out works to control noise levels.

The planning permissions

Racing had taken place at the stadium since 1975.

The speedway racing was confined to 22 events between May and October and the stock car racing was confined to 24 events between March and October. The stock car racing normally took place on a Saturday evening (and occasionally on a Sunday) and the speedway racing took place on a Sunday afternoon / evening. There were also practice days as well.

The speedway racing had the benefit of planning permissions from 1975 and the use of the track was authorised by planning permission in 1992. In both cases the permissions prohibited racing and practising at certain times. On 25 July 1997 a certificate of lawful use was issued which permitted stock car racing on certain days but again at limited times of the day. The permissions were personal to one of the Defendants.

The planning consents remained in place before and after the trial and whilst the Defendants’ activity had required enforcement action from the local authority at certain times, it remained lawful from their point of view. The Claimants argued that, notwithstanding the disinterest of the local authority, the Defendants activity still constituted a private nuisance which should be restrained by injunction or remedied in damages.

Planning permission and nuisance

The relationship between planning permission and nuisance has been the subject of a number of judicial observations:

  • Wheeler v J J Saunders [1996] confirmed that the grant of planning permission did not constitute a statutory authority to commit a nuisance, but it may do so in certain circumstances. Wheeler concerned a pig farm.
  • Allen v Gulf Oil Refining Limited [1980] confirmed that a nuisance will not be actionable where it emanates from an activity which has been authorised by Parliament. In Allen, the claimants complained of nuisance caused by an oil refinery which had been built with statutory authority. The Court of Appeal confirmed that "where Parliament by express action or by necessary implication has authorised the construction and use of an undertaking or works, that carries with it an authority to do what is authorised with immunity from any action based on nuisance".

The above cases illustrate that a distinction is to be made between an undertaking authorised by statute (such as the construction of an oil refinery) and an undertaking authorised by planning permission (such as a pig farm). In Gillingham Borough Council v Medway (Chatham) Dock Co Limited [1993] a commercial port was constructed pursuant to planning permission and which resulted in heavy goods vehicles passing the claimant’s property. The court found that a planning permission was not a "licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance. However, a planning authority can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of rendering innocent, activities which prior to the change would have been an actionable nuisance". The court found that the construction of the port had changed the character of the neighbourhood and therefore the nuisance was not actionable.

Last year, the decision of Hirose Electrical UK Limited v Peak Ingredients Limited [2011] reiterated this analysis. Two companies occupied two adjoining industrial units. One company manufactured mobile phone parts and the other manufactured curry ingredients. The latter brought an action for nuisance by smell, in particular complaining that some of their employees had suffered physical symptoms as a consequence of the fumes emanating from the neighbouring property. The Court of Appeal was mindful that the locality was an industrial estate and that the neighbours activity was permitted by planning permission and was carried on without complaint by the relevant statutory authorities. The court found that the character of the area and the existence of the planning permission meant that the nuisance was not actionable.

Tigers silenced - The High Court decision in Coventry v Lawrence

The Defendants accepted the authority of Wheeler but argued that the character of a locality could be affected by the grant of a planning permission, or a series of planning permissions, relying on Gillingham. The court accepted that the character of a locality could be so affected but noted the following:

  1. The planning permission was personal and was therefore unlikely to lead to a change in the character of the neighbourhood.
  2. The planning permissions were also time and/or date restricted.

In view of this, the court found that the planning permissions had not altered the character of the locality permanently would rather they had just authorised a limited change on the times and days permitted by the permissions.

The court found that the noise generated by the activities at the stadium track was constant in volume when the activities were taking place but that there were significant periods when no activities were in progress and therefore no noise was generated at those times. When there was noise it was sometimes sufficiently intrusive to generate complaints, but not always.

The court ordered that the defendants should pay the claimants damages in the region of £20,000 and issued an injunction restricting the defendant’s activities.

Tigers released - The Court of Appeal decision in Coventry v Lawrence

Understandably, the Defendants appealed. They argued that the court had failed to properly take into account the planning permissions and that the effect of those planning permissions was to change the character of the locality.

The court noted that the activities had been authorised by numerous planning permissions over several decades. It noted that this was a fact which was discoverable by the Claimants when they bought Fenland in 2006. The Claimants maintained that they were unaware of the activities prior to their purchase of which the court considered “if this assertion is correct, is most surprising. The relevant planning permissions and certificate of lawful use were all available for inspection on the register maintained by the local planning authority. It is a matter of prudence, indeed basic common sense, to inspect that register before purchasing a property in a rural location".

The court also reviewed the above authorities and made the following conclusions:

  1. A planning authority by the grant of planning permission cannot authorise the commission of a nuisance.
  2. Nevertheless the grant of planning permission followed by the implementation of such permission may change the character of a locality.
  3. It is a question of fact in every case whether the grant of planning permission followed by steps to implement such permission do have the effect of changing the character of the locality.
  4. If the character of a locality is changed as a consequence of planning permission having been granted and implemented, then:
    1. the question whether particular activities in that locality constitute a nuisance must be decided against a background of its changed character;
    2. one consequence may be that otherwise offensive activities in that locality cease to constitute a nuisance.

The Court of Appeal found that the fact that the Defendants’ planning consents were personal and were time limited was not relevant - instead the court should focus on the effect of the actual implementation of the permission.

The court noted that the stadium and the track been used or motorsports for many years and had become "an established feature, indeed a dominant feature, or the locality". The court also noted that the Defendants had responded to enforcement action and that the motorsports remains lawful as far as the planning authority was concerned.

The appeal was therefore allowed. The Court of Appeal found that the character of the locality had changed, and the consequence was that the racing did not constitute a nuisance.

The court accepted that "the outcome of this litigation will be a disaster for the claimants" but observed “on the other hand the claimants’ predicament is a consequence of their decision to purchase a house in an area where motorsports were an established activity. The existence of the motorsports or something that was more should have been apparent to the claimants and their advisers”.

The case of Watson

Any discussion of the Coventry case is incomplete if the earlier decision of Watson v Croft Promo-Sport Limited [2009] is ignored. Watson had similar facts but produced an entirely different result.

In Watson, the claimants lived in a house 300 metres from the Croft Motor Circuit in County Durham. Croft also argued that their activity had permanently changed the locality. The racing had been authorised by planning permission in 1963 and in 1998. Car racing had taken place since the late 1940’s but there were periods of time where there was no activity at the circuit. The terms of the planning permissions restricted racing to certain days of the year and imposed restrictions on noise levels. Racing was often limited to approximately 20 events a year. Watson also reached the Court of Appeal which confirmed that the locality had not been changed by the implementation of the planning permissions and had not changed the “essentially rural” nature of the locality. As a result the Claimants were successful.

Comment

Watson will have given confidence to claimants and Coventry will have taken it away.

Whether a planning permission or a series of planning permissions will alter the character of a locality will always be a question of fact. The court will make an assessment of the impact made by the implementation of those permissions and where the impact is temporary or intermittent, the court is likely to be slow to consider that the locality has been changed. In Coventry, notwithstanding that the nuisance also took place in a rural area, the Court found that the stadium and track had actually had a discernible impact on the locality. In Watson the Court found that the racing had caused little change to the locality.

Other factors also appear relevant. It will not help any Claimant if it is clear that they have moved to live next to the nuisance. The fact that someone has "come” to a nuisance will not mean that they are not entitled to complain about it, but it will not help and it will inevitably have some weight in any claim. Further, where the possibility of a nuisance is discoverable prior to purchase, the court is likely to be slow to sympathise.

Coventry v Lawrence illustrates that it remains difficult to provide conclusive advice in relation to the impact of planning permissions in nuisance cases. Every dispute will be fact sensitive and claimants may be better advised to focus on their investigations prior to acquiring their property rather than seeking to moderate the activities of their neighbours after purchase. Potential claimants will need to undertake a forensic analysis of the relevant planning history and identify any actual impact on the locality. They will need to do this in order to be satisfied that it will not provide a defence for their noisy neighbours.

Coventry v Lawrence [2012] EWCA Civ 26

Lawrence v Coventry [2011] EWHC 360 (QB)

Sturges v Bridgman [1879] 11 ChD 852

Wheeler v Saunders [1996] Ch 19

Allen v Gulf Oil Refining Limited [1981] AC 1001

Gillingham Borough Council v Medway (Chatham) Dock Co Limited [1993] QB 343

Hirose Electrical UK Limited v Peak Ingredients Limited [2011] EWCA Civ 987

Watson v Croft Promo-Sport Limited [2009] EWCA Civ 15