There have been very few rulings on private nuisance at Supreme Court level. Conflicting Court of Appeal judgments over recent years have created uncertainty for land owners, developers and planners. A particular issue has been how the grant of statutory authority, for example a planning permission or environmental permit, to undertake the activity complained of affects the decision as to whether a nuisance exists.
The case of Coventry and others v Lawrence and another  UKSC 13 is therefore highly significant. In it the Supreme Court examines a number of key issues. These include whether a right to commit a noise nuisance can arise by way of prescription, the extent to which the grant of planning permission can affect whether a nuisance exists and is relevant to the determination of the character of the locality, and also the approach to be followed by the lower courts in deciding whether to grant an damages instead of an injunction.
Need to know
• A private nuisance is an action (or sometimes a failure to act) on the part of a defendant, which is not otherwise authorised, and which unduly interferes with the claimant’s enjoyment of his land. Whether a particular activity causes a nuisance depends on an assessment of whether the activity is a reasonable user of the defendant’s land, in which case the locality generally is relevant, as is the timing and duration of the alleged nuisance.
• Allegations of a private nuisance as a result of the carrying out of a commercial activity
can be very significant, especially in the context of corporate transactions. As a worse
case scenario, if a private nuisance is found to exist it may result in the grant of an
injunction which severely, if not totally, curtails the activity giving rise to the nuisance.
• The questions at issue in the Coventry case were:
— Whether a defendant can claim to have established a prescriptive right to commit what would
otherwise be a noise nuisance. The Supreme Court held it is possible to obtain a right
by prescription to commit a noise nuisance equating this with a prescriptive easement
to transmit sound waves over neighbouring land. To succeed, the defendant would
need to show that the relevant activity has created a nuisance for over 20 years
without substantial interruption. An interruption of, for example, two years during
the 20-year period would not defeat such a claim if the defendant had otherwise
satisfied the requirements to establish such a right – but the activity had to have
constituted a nuisance, and not merely have been occurring during the relevant period.
— The extent to which a defendant can rely on the fact that the claimant ‘came to the nuisance’.
On this, the Supreme Court said it is not a defence to a claim in nuisance to show
that the claimant acquired or moved into her property after the nuisance had started.
Need to know
Summary of the facts
Summary of the decision
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gives its view
on noise nuisance2 Supreme Court gives its view on noise nuisance, April 2014
However, it may be a defence that it is only because the claimant has changed
the use of her land that the defendant’s pre-existing activity is claimed to have
become a nuisance. Lord Neuberger, who gave the leading judgment, indicated
that where a claimant builds on, or changes the use of her land, it would be wrong
to hold a defendant’s pre-existing activity gives rise to a nuisance provided that:
• it can only be said to be a nuisance because it affects the senses of those
on the claimant’s land;
• it was not a nuisance before the building or change of use of the claimant’s land;
• it is and has been, a reasonable and otherwise lawful use of the defendant’s land;
• it is carried out in a reasonable way; and
• it causes no greater nuisance than when the claimant first carried out the
building or changed the use.
— If the actual use of the defendant’s premises can be considered when assessing the character
of the locality. The Court of Appeal took the view it could be. The Supreme Court
confirmed this, holding that the assessment of the character of a locality for the
purposes of assessing if the defendant’s activities give rise to a nuisance is a classic
issue of fact and degree for the judge trying the case. However, a defendant, faced
with a contention that its activities give rise to a nuisance, can rely on those activities
as constituting part of the character of the locality to the extent that those activities
do not constitute a nuisance.
The same principle also applies to the defendant’s ability to rely on other uses
as forming part of the character of the locality, ie they can be taken into account
only to the extent that they are not a nuisance or otherwise unlawful. Furthermore,
in a situation where the claimant is not able to object to the defendant’s activities,
for example where a prescriptive right arises, the claimant is entitled to expect
the defendant to take all reasonable steps to ensure that the noise is kept to
a reasonable minimum.
In his judgment, Lord Carnwarth, expressed the view that ‘after more than 60 years
of modern planning and environmental controls, it is not unreasonable to start from
the presumption that the established pattern of uses generally represents 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. The common law of nuisance is there to provide a residual control
to ensure that new or intensified activities do not need lead to conditions which,
within that pattern, go beyond what a normal person should be expected to
put up with’.
— The extent to which a grant of planning permission for the use alleged to give rise to the nuisance
is relevant in determining if the nuisance exists. The Supreme Court confirmed that the
grant of planning permission for a particular use is potentially relevant to a nuisance
claim in two ways.
First, the grant, or terms and conditions, of a planning permission may permit the
noise (or other disturbance) which is alleged by the claimant to constitute a nuisance.
In such a case, the question is the extent to which the planning permission can
be relied on as a defence to the nuisance claim. Lord Carnwarth indicated that in
exceptional cases a planning permission may be the result of a considered policy
decision leading to a fundamental change in the pattern of uses, which cannot
sensibly be ignored in assessing the character of the area against which the
acceptability of the defendant’s activity is to be judged. This was not the case
in this instance, however. Otherwise a planning permission’s relevance generally,
in his view, should be in the context of remedies.
Secondly, the grant, or terms and conditions, of a planning permission may permit
the defendant’s property or another property in the locality to be used for a certain
purpose, so that the question is how far that planning permission can be relied
on by the defendant as changing the character of the locality.Freshfields Bruckhaus Deringer LLP 3
The Supreme Court indicated that it is wrong in principle that, through the grant
of planning permission, a planning authority should be able to deprive a propertyowner of a right to object to what would otherwise be a nuisance, without providing
compensation. This was essentially the view the Court of Appeal had taken in the case,
as a result of its finding that the grant of planning permission had altered the nature
and character of the locality and that noise generated by motor sports was one of
the established characteristics of the locality. The finding is at odds with the ruling
in Barr and others v Biffa Waste Services Limited  EWCA Civ 312.
Furthermore, the Supreme Court said, the mere fact that the activity which is said
to give rise to the nuisance has the benefit of a planning permission is normally of
no assistance to the defendant in a claim brought by a neighbour who contends that
the activity causes a nuisance to her land in the form of noise or other loss of amenity.
Nevertheless, there will be occasions when the terms of a planning permission could
be of some relevance in a nuisance case: the fact that the planning authority takes the
view that noisy activity is acceptable after a certain time in a particular locality may
be a real value as a starting point in a case where the claimant contends that the
activity gives rise to a nuisance if its starts at a different time.
In summary, the existence and terms of a planning the permission are not irrelevant
as a matter of law, but in many cases they will be of little, or even no, evidential value,
and in other cases rather more.
— The approach to be adopted by a court when deciding whether to grant an injunction or to award
damages instead. The Supreme Court were reluctant to provide guidance as to the way
the lower courts should approach the exercise of their discretion whether to award
damages in lieu of an injunction in nuisance cases. Lord Neuberger, with which the
majority agreed, was of the view that the legal burden is on the defendant to show
why damages were appropriate rather than an injunction.
Among the factors the Court said could be taken into account by the judge when
deciding how to exercise its discretion are:
• whether the defendant has acted in a high-handed manner, in which case
an injunction should follow;
• if a planning permission authorises carrying on an activity in such a way as
to cause a nuisance. This can be a factor in favour of refusing an injunction and
compensating the claimant in damages. This is likely to be particularly significant
where it is clear that the planning authority have been influenced by the public
benefit of the activity, and where the activity cannot be carried out without causing
the nuisance complained of. However, even then, the court would have to weigh
up all the competing factors before deciding how to exercise its discretion. In his
judgment, Lord Sumption indicated that granting an injunction prohibiting the
activity complained of entirely will operate in the same way as a refusal of planning
permission, but without regard to the factors which a planning authority would be
bound to take into account. In his view, the obvious solution ‘is to allow the activity
to continue but to compensate the claimant financially for the loss of amenity
and the diminished value of his property’. Where planning permission has been
granted for the use in question, in his view, there were particularly strong reasons
for adopting this solution;
• the loss to the public of the activity giving rise to the nuisance or a waste of
resources on account of a single claimant. Again this points to a grant of damages
rather than an injunction; and
• where the financial implications of an injunction for the defendant would
be disproportionate to the damage done to the claimant if she was left to her
claim in damages. In such cases, particularly where an injunction would stop
the defendant from pursuing the activities complained of, an injunction may
well not be the appropriate remedy.4 Supreme Court gives its view on noise nuisance, April 2014
The Supreme Court also indicated that it was at least arguable that, where a court
decides to award damages instead of an injunction, the amount of the damages should
not always be limited to the value of the consequent reduction in the value of the claimant’s
property. Lord Neuberger suggested that the damages might well ‘also include the loss
of the claimant’s ability to enforce her rights, which may often be assessed by reference
to the benefit to the defendant of not suffering an injunction’. His Lordship indicated
however that it was not appropriate to decide on this point in the context of the appeal.
Summary of the facts
Planning permission had initially been granted for the construction of a stadium for
‘speedway racing and associated facilities’ in the Suffolk countryside in 1975. The permission
was time limited to a period of 10 years. It was renewed on a permanent basis in 1985.
In the meantime, stock car and banger racing had started in 1984, and after 10 years the
owner of the stadium had successfully applied for a Certificate of Lawfulness of Existing
Use or Development (known as a CLEUD). To the rear of the stadium there was also
a motocross track, which similarly had been initially granted a temporary personal
planning permission, which had subsequently been renewed on a permanent basis.
In 2006, the appellants moved into a residential property close to the stadium and track.
In 2008, they issued proceedings against the operators of the stadium and the track
for an injunction prohibiting their activities, on the ground that they gave rise to
a nuisance by noise.
At first instance the appellants were successful in that the judge made an order for an
injunction limiting the level of noise emitted by those activities. The judge decided that
the grant of planning permissions for the uses of the stadium and the track should have
no bearing on the issue of whether those uses constituted a nuisance. The reason he gave for
this was because of the personal nature of the permissions, and the fact that they limited
the permitted uses to a maximum number of days a year and to specified hours of the day.
In the course of their argument, the respondents had contended that they had acquired
a right to create what would otherwise have been a nuisance by noise, as a result of the use
of the stadium for speedway, stock car, and banger racing for more than 20 years. The judge
rejected this on the basis no such right could be acquired as a matter of law, and even if
that was wrong, the interruption in use, especially in respect of stock car and banger racing
in 1991 and 1992, would have been fatal to a prescriptive claim.
The respondents appealed. The Court of Appeal allowed the respondents’ appeal,
holding that the appellants had failed to establish that the activities constituted a nuisance.
Lord Justice Jackson, who gave the main judgment, held that the trial judge was wrong
to hold that the actual use of the stadium and the track with planning permission could
not be taken into account when assessing the character of the locality for the purpose
of determining whether the activities constituted a nuisance. In the Court of Appeal’s
view, the grant of planning permission had changed the locality with motor sports bring
a dominant feature of it, and as there had been no breach of the conditions attached to it,
no nuisance had been committed.
Summary of the decision
Applying the principles referred to above, the Supreme Court held:
• there was no question of the respondents being able to rely on the fact that the
appellants came to the nuisance, or any other similar argument. The appellants
used their property as a residence, and this was the same purpose to which it had
been put ever since before the activities currently carried on at the stadium and
the track had started;freshfields.com
• the two planning permissions and the CLEUD were evidence which could have been
taken into account in determining if the respondent’s activities amounted to a nuisance.
However, the CLEUD was of no relevance, other than as evidence which supported
the argument that the activities to which it related had been going on for 10 years.
The planning permissions showed that the planning authority considered that at least
most of the uses of which the appellants complained were acceptable in planning terms,
and turned their minds to some extent to noise pollution by limiting the frequency
and the times of the activities;
• the grant of planning permission was not a matter of much weight, and there
was no reason to think that this was an exceptional case. The Court of Appeal had
therefore been wrong to take the view that the planning permissions were essentially
determinative of the appellants’ claim in nuisance;
• the respondents had failed to show they had a prescriptive right to make the noise
nuisance. Whilst the interruption for two years did not prevent the respondents
obtaining the right to create what would otherwise be a nuisance of noise, even allowing
for this, they did not show that their activities during a period of 20 years amounted
to a nuisance; and
• the trial judge had not been asked to rule on whether an award of damages should
be made in place of an injunction. An appellate court was unable to determine this
when the trial judge was not asked to do so, save in the most exceptional circumstances.
Accordingly, the fairest way to deal with the point was to refuse the respondents
permission to raise it, but to hold that they should be free to raise the argument
that the injunction granted by the judge should be discharged, and damages awarded
instead under the provision in the judge’s order giving the parties permission to apply.
Practical implications and recommendations
The case finally determines the ambiguity regarding the weight to be attached to statutory
permissions to undertake activities that can give rise to a nuisance which had existed,
following the contradictory Court of Appeal rulings in this and the Barr case.
The outcome – that little weight attaches to such permissions – means it will be easier
for claimants to make out their cases, at least in the sense that one hurdle to proving
a claim in nuisance is effectively overcome.
The judgment does, however, give some hope to those subject to proceedings that the
courts may be more willing to consider damages as being a suitable remedy in nuisance
cases, especially where only a limited of number of people are affected by the activity
and there is otherwise some public benefit to it. While the Supreme Court did not rule
definitively on this issue, there is certainly useful commentary to this effect, reflecting
an attempt to make the nuisance regime more fit for purpose. This is likely to be far
more beneficial to those seeking to defend nuisance claims, who may otherwise see their
activities or operations significantly curtailed by the use of an injunction.
The judgment also confirms that defendants can claim a right to make a noise nuisance
by way of prescription. To run such a contention successfully, clear documentary evidence
will be required on such issues as the frequency, time and duration of the activities and
operations giving rise to the alleged nuisance.