- Strange as it may seem, the emission of noise - even intermittently and at differing volumes - can be acquired as a property right.
- If those emissions constitute a nuisance, but the noise continues unchallenged for 20 years or more, an easement to make that noise will be acquired by prescription. This means it will no longer be open to challenge, at least not as a matter of private land law between landowners.
- The existence of planning permission in relation to the activity which causes the nuisance can be taken into account by the court when considering the character of the locality in which the aggrieved owner and defendant have their properties.
A brief outline of how an easement can be acquired by prescription (long use) was included in an article in our July/August 2013 alert, albeit in the context of a right to park. A prescriptive easement can arise in three ways: under the Prescription Act 1832, the doctrine of lost modern grant, or the archaic and little-used common law rule of prescription which deems there to have been continuous use since 1189. The case of Coventry and others v Lawrence and another involved a claim under the Prescription Act 1832.
Mr Coventry and others ran (and still run) a business in the Suffolk countryside, near the market town of Mildenhall. Over the years, planning permissions had been granted for the use of former agricultural land for:
- speedway racing, stock car and banger racing in a specially-constructed stadium, and
- a motocross track.
Clearly, all of these activities can create significant amounts of noise on race or practice days.
Some of the planning permissions were limited in duration. Others were personal to the then landowner, Terence Waters. And some set conditions, such as the number of events which could be held each year, the time of day when events could take place, and the maximum decibel level which could emanate from the site.
The speedway stadium was constructed in 1976, and speedway motorcycle races began immediately. Stock car and banger racing started in 1984, and greyhound racing in 1992. The motocross track was constructed in 1992 and was again used immediately.
In January 2006 Ms Lawrence and Mr Shields bought a house from a couple who had lived in it for the last 22 years, since 1984. The house is approximately half a mile from the motocross track and a third of a mile from the stadium. The buyers - the claimants in this case - were unaware of the existence of the track and the stadium.
After three months or so, they became concerned about the noise emanating from the motocross events on the track, and complained to the local authority. The council subsequently served noise abatement notices, in compliance with which attenuation works were - eventually - carried out. The council was happy with those works and took no further action. The works reduced the noise generated by the motorbikes and other vehicles, and by public address systems on race days etc, but of course did not eliminate it.
The claimants therefore pursued their claim that the use of both the stadium and the track constituted a nuisance, in breach of the private law of tort. In early 2008, they applied for an injunction to restrain the nuisance, and continued with the claim even after the attenuation works had been carried out. The respondents - the stadium operator, Mr Coventry; the company which operated the activities on the track; Mr Waters, and his son who was by then a joint owner of the land - and others involved in the first instance claim denied nuisance.
The High Court gave its judgment in March 2011, and held that a nuisance was being caused by reason of the noise. The judge decided that it was not possible to acquire a right to create what would otherwise have been a nuisance by noise and that, even if it was possible, there had been a couple of years in the early 1990s when neither the track nor the stadium was used, which interrupted the "clock ticking" for the requisite 20 years' use. He held that this would be fatal to a claim for a prescriptive right.
The judge awarded an injunction, preventing the continuation of the nuisance, but it was suspended for so long as the claimants' house remained unoccupied (Ms Lawrence and Mr Shields had moved out in April 2010, following extensive fire damage). The injunction did not stop the stadium and track being used entirely, but it limited the number of occasions when there could be emissions of noise, and the decibel levels which were allowed to reach the boundary of the claimants' property.
In reaching those conclusions, the judge raised the question of whether he could take into account the existence of the various planning permissions when assessing what was the "character of the locality". The need to consider this "character" stems from the infamous phrase in the 1879 case of Sturges v Bridgman: "what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey". That is to say, whether a particular activity causes a nuisance can depend on an assessment of the locality in which the activity is being carried out.
Despite raising the question of whether the planning permissions could be taken into account, the judge in the High Court did not directly answer it. However, in the words of the Supreme Court, "he appears to have held that the answer was no".
In all, the defendants lost in the High Court and therefore appealed. The Court of Appeal reversed the decision and held that the claimants had failed to establish that the use of the track and the stadium constituted a nuisance. It also said that the planning permissions could be taken into account when assessing the character of the locality for the purpose of determining whether an activity constitutes a nuisance. And Lewison LJ, although not asked to consider the question, opined that it is possible to obtain a right, by prescription, to do something which would otherwise be an actionable nuisance.
It was now the claimants' turn to appeal.
The decision of the Supreme Court
Lord Neuberger, President of the Supreme Court and a property lawyer by background, gave the leading judgment. In summary:
- The right to commit a nuisance by noise can be (a) an easement, and (b) acquired by prescription. The technical description of the right is as a positive easement, permitting the transmission of sound waves from the dominant tenement over the servient tenement.
- Such an easement can be acquired even where the emissions are not continuous, and instead vary in terms of volume (decibels) and frequency (how often).
- On the facts of this case, however, the nuisance caused by unlawful activities on the site had not been carried out for the 20 year period immediately before the claim was brought in the courts, which is the end date of the period required to establish an easement by prescription. While noise had been emanating from the site since 1976, it had been at a level that was lawful for many of those years. It is only unlawful activities which will cause the 20 year clock to start ticking. On the facts, the unlawful use had gone on for only 16 years: the previous occupiers of the property had first complained to the council in 1992, 16 years before the proceedings were first brought in 2008.
- Had there been 20 years' use, the two year hiatus, when no racing took place, would not - of itself - have been fatal.
- Because a nuisance was being caused, and it had not gone on for long enough to become an easement by prescription, it remained open to challenge as a matter of private law between individual landowners.
- It was not a defence to say that the claimants "came to the nuisance". In the same way that an easement is a property right, so is the right to claim that a nuisance is being caused which interferes with the use and enjoyment of the claimant's land. The right to complain - and the suffering of the nuisance - was already underway during the previous owners' occupation of the house. It did not matter that the claimants arrived on the scene only after the stadium had been up and running for some time. They continued to use the house in the same way that it was used by the previous occupiers. If they had changed that use, then a defence might have been available; but they had not.
- The existence of planning permission for the use complained about - and the terms of that permission - can be a relevant consideration in a nuisance claim. The extent to which they will be useful to either party and the weight the court will attach to them will - as ever - depend on the surrounding facts and circumstances of each individual case.
- The lawful implementation of planning permission can change the character of the locality. Any unlawful element of use will, however, be ignored.
The other four judges gave further comments on the case and the above points. In a few respects, they disagreed with Lord Neuberger. For example, in relation to the last point above, Lord Carnwarth felt thatany activity could be taken into account - lawful or otherwise - if it was "part of the established pattern of use" of the local area.
But all four ultimately agreed with the outcome: there was an actionable nuisance because no easement to make the noise had been created by the passage of sufficient time.
The next step was for the court to consider the question of remedies: should an injunction be granted, or would an award of damages suffice? This is the subject of a separate article below.
Points to consider
The decision has generally been viewed as a welcome modernisation of the law of nuisance, especially in relation to interference with enjoyment of land which, as a type of nuisance, has not been considered by the upper courts for a considerable time. Some commentators see it as bringing up to date an area of law which had not kept pace with the realities of modern life, industrialisation, development, etc.
Particularly in light of the outcome on the question of remedy, it is being viewed as a judgment which is developer-friendly, or friendly towards those people and businesses which carry on activities which are inherently noisy or noxious, or which produce dust, vibrations or smells. The possibility of an easement arising by prescription - rendering these activities equally lawful - is also covered by this decision.