The long awaited Supreme Court decision in Coventry and others v Lawrence and another [2014] UKSC 13 (26 February 2014) addresses the relevance of planning permission for an activity which allegedly gives rise to a private nuisance.  This case does provide some guidance on resolving the tension between modern statutory environmental and planning regulation of activities and the principles of common law nuisance. The judgment also addresses some other important issues relating to nuisance law: (i) remedies, in particular the principles underpinning awarding damages instead of injunctions (ii) coming to a nuisance and (iii) establishing a right by prescription to create what would otherwise be a nuisance.

This case dealt with noise from a motorcycle speedway stadium and a motocross track located in Suffolk.  Whilst the stadium and track are largely surrounded by agricultural land there is a single house located quite nearby. The house had been built in the 1950’s, prior to the stadium and track, and had been occupied, although not by the same people, throughout the period. The Appellants had moved into the house in January 2006.  By April 2006, they had complained to the local authority that the noise affected their enjoyment of their property and caused a nuisance and had written to the owner and operators.

The Respondents had various planning permissions, some going back as far as 1975, authorising a motorcycle speedway stadium and a motocross racetrack on their land as well as a certificate of lawfulness of existing use or development (CLEUD) making stock car and banger racing a lawful use of the land. There had been statutory nuisance abatement notices served and noise attenuation works undertaken. 

The High Court found in favour of the Appellants, granted an injunction and awarded damages for the past nuisance. The Court of Appeal overturned that decision, stating that the actual use of the stadium and racetrack should be taken into account when assessing the character of the locality and motor sport noise was now a characteristic of the neighbourhood. The Appellants had failed to establish that the use was a nuisance. They appealed to the Supreme Court.

The decision, which has been described as rebalancing the rules of nuisance, addresses a number of difficult issues carefully and pragmatically. A key point that comes through in this case is that the exercise of judicial judgement will continue to be a critical factor in nuisance cases rather than there being a rigid set of rules that can be applied in all fact situations. 

The Supreme Court unanimously upheld the appeal and ordered the injunction to restrain activities that emitted more than a specified level of noise.  The judgment addressed the following key points:

  • As there is no basis for using a statutory scheme to cut down private rights law, a planning authority cannot “authorise” a nuisance as that would deprive a property owner of the right to object to what would otherwise be a nuisance without providing compensation. However the terms of a planning permission may be considered in assessing reasonableness for the purposes of nuisance, for example time restrictions imposed by the planning authority may be relevant. The existence of planning permission for an activity will be potentially material to whether or not a nuisance exists but is in no way decisive.  
  • The case law, starting with Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB343, which held that a planning authority can change the character of the area for the purpose of nuisance in the case of strategic or major developments and thereby provide a defence to nuisance from that development, is no longer to be followed.
  • Although it is not a defence that the claimant “came to the nuisance” i.e. moved into or acquired the property after the nuisance had started, there is a possible defence where a defendant’s pre-existing activity has only become a nuisance as a result of the claimant changing the use of his land.  In this case residential use pre-dated the activities creating the noise, although the occupiers of the property in question had changed over time, so the point needed to be dealt with only briefly.
  • When assessing the character of the locality to determine whether the defendant’s activities amount to a nuisance, the activities complained of should be taken into account to the extent they are not a nuisance. Other activities in the locality will be taken into account in the same way.  
  • The Supreme Court justices were not entirely agreed on the approach to injunctions and damages in lieu of an injunction. Lord Neuberger adopted the position that the successful claimant is prima facie entitled to an injunction, that the courts have discretion to award damages instead and that the burden of proof to show that damages are an appropriate remedy lies with the defendant.  Public interest should be given sufficient weight when exercising the discretion to award damages in lieu of an injunction and planning permission authorising the activity is relevant, as it may help show that the activity is of benefit to the public. Where an injunction will have serious consequences for third parties such as employees of the business or members of the public using the stadium then a court can have regard to this.  Whether or not it is possible to make a damages award that effectively “licences” the nuisance instead of granting an injunction is something that may be considered in future cases and was raised as a possibility by Lord Clarke.
  • The right to make noise which would otherwise be a nuisance can be an easement and therefore can be established by prescription (deemed grant through long use). It must be shown that the relevant activity has created a nuisance for over 20 years without interruption and not just that the activity has been taking place or creating some noise throughout that period.

The Supreme Court decision in Coventry v Lawrence and the Court of Appeal decision in Barr v Biffa [2012] EWCA Civ 312 have clarified many aspects of nuisance law in particular in relation to amenity damage from operations located in proximity to residential uses. The facts of a particular situation and the exercise of judicial judgement will nonetheless remain critical to the potential for a nuisance action being successful. 

Coventry v Lawrence is clear that planning permission does not remove private law rights in relation to amenity damage caused by the development. Operators of activities that may affect amenity will need to consider carefully whether any effect from their operations is what the ordinary person would think was reasonable to put up with and take care that conditions on any planning permission relating to potential nuisance are complied with.  

Landowners changing the use of their land will wish to consider whether existing uses in the area might create a nuisance in relation to the new use, as a nuisance action may not be possible in the future. Coventry v Lawrencemay also act as a way for individual citizens to enforce conditions of a planning permission that are not being complied with through nuisance action.  

The possibility of a right by prescription to create what would otherwise be a nuisance is something that will be considered by both operators of longstanding activities that may cause a nuisance as well as those residing in proximity to them.