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Can your neighbours acquire a right to be noisy and how can they be stopped?

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06/06/2014

In the recent case of Coventry v Lawrence [1] the Supreme Court took the opportunity to clarify the law of private nuisance and to make some fundamental changes to previously well established principles. The important judgment, amongst other things, clarified that it is possible to acquire, via prescription, a right to commit an act that would otherwise be deemed a noise nuisance, and that the grant of planning permission does not remove the ability of a property owner to object to an act that would, in the absence of that permission, be a nuisance. The existence of planning permission may, however, be a factor which would sway a court to refuse an injunction and compensate the claimant in damages instead.

The law

When a person undertakes something on their own land which they are legally entitled to do, but the consequences of which negatively impact on the land of their neighbour, the tort of private nuisance is committed.

Whether or not an activity actually constitutes a nuisance can in part be determined by assessing the character of the locality in which the activity is carried out. If the assessment concludes that the use of the land is reasonable, then the act will not amount to a nuisance. Consideration of the act itself is not sufficient, the circumstances of the act must be considered – what constitutes a nuisance in one area may not be so in another.

Whilst the grant of planning permission permitting the act complained of is not in itself a defence to a private nuisance claim, as a local planning authority does not have jurisdiction to authorise a nuisance affecting the private law rights of third parties [2], the implementation of planning permission may affect the character of the locality sufficiently to move the standard of reasonable user which is at the heart of the question as to whether a nuisance has been committed [3]. A change in the standard of reasonable user may thereby permit an action which may, in the absence of the planning permission, otherwise have been a nuisance [4] .

A claimant can bring a civil action for private nuisance against a defendant for either damages to compensate them for their loss, or an injunction to abate the nuisance and prevent recurrence, or both.

Facts

In 1975 the defendant, Mr Waters, was granted planning permission to construct a stadium on his land for motorcycle speedway racing (the stadium). The permission was for a period of ten years. The permission was renewed in 1985 on a permanent basis but made personal to Mr Waters. During the period from 1984 to 1997 the property was, in addition to the permitted use, used for stock car and banger racing events. In 1997 a ‘Certificate of Lawfulness of Existing Use of Development’ was issued in respect of the additional uses. As a result the previously unauthorised uses became lawful and immune from planning enforcement.

In 2002, an additional personal permanent permission was granted to Mr Waters permitting the use of part of the site as a motocross racetrack (the racetrack). The permission for the racetrack was subject to conditions limiting the number of days for which it could be used, restricting the hours of use and also specifying maximum noise levels.

The claimants, Ms Lawrence and Mr Shields, purchased a house 560 metres from the stadium and 860 metres from the racetrack in 2006. The claimants lodged complaints with the local authority regarding noise from the stadium and racetrack alleging that it constituted a nuisance. Noise abatement notices were served by the local authority requiring the defendants to undertake works to mitigate noise levels. The works were completed in 2009.

The claimants commenced private nuisance proceedings in 2008 and obtained an injunction preventing activities at the stadium and racetrack that produced noises above a certain level. The Court of Appeal reversed that decision in 2012 and held that the activities did not constitute a nuisance. Permission to appeal to the Supreme Court on the following five grounds was granted in July 2012:

  • The extent to which the defendant can allege that a prescriptive right to commit a noise nuisance has been acquired
  • The extent to which the defendant can rely on the fact that a claimant ‘came to the nuisance’
  • The extent to which a defendant can refer to the actual use of the premises when assessing the character of the locality
  • The extent to which the grant of planning permission for a particular use has any impact on whether that use is a nuisance and whether it can be taken into account when assessing the character of the locality
  • The correct approach to be adopted by a court when considering whether to grant an injunction or award damages.

The decision

Judgment was delivered by the Supreme Court on 26 February this year. The appeal was unanimously allowed and concluded that the defendant’s activities constituted a nuisance and, as they had failed to establish a prescriptive right to carry out the activities, the injunction originally granted by the High Court was to be restored.

In addressing the five points it had to consider the Supreme Court concluded as follows:

  • The court confirmed that a right to make a noise that would otherwise have been a nuisance can be acquired by prescription (i.e. long use). However, the defendant would have to prove that the noise complained of constituted a nuisance for the full 20 years. In the present case, the defendants could not prove that the noise from the motocross events had been sufficiently excessive to constitute a nuisance for the required period.
  • The Court affirmed the long-established principle that it is not a defence to a nuisance claim for a defendant to allege that the claimant acquired their land after the nuisance had started in cases where the claimant uses his or her property for essentially the same purpose as their predecessors. If on the other hand the claimant changes the use of, or builds on their land, and as a result the defendant’s pre-existing activity becomes a nuisance, the defence of ‘coming to the nuisance’ may succeed.
  • With respect to the assessment of the character of the locality, the Supreme Court confirmed that it was an issue of fact and judgment for the court. It suggested that, rather than referring to the ‘character’ of an area, a better description would be to ascertain the established pattern of uses in the locality. The court should start with the proposition that the defendant’s activities are to be taken into account when assessing the established pattern of uses; however those activities should only be considered to the extent that they do not constitute a nuisance. In this case the established pattern of uses includes the stadium and racetrack which could lawfully be used for speedway, stock car and banger racing and motocross but only to the extent that those activities did not cause a nuisance.
  • With regard to the relevance of planning permission, the Supreme Court concluded that the notion that a local authority could deprive a property owner of a right to object to what would otherwise be a nuisance without paying compensation was wrong in principle. The issue of common law nuisance is one for a court to decide, not the local authority. Notwithstanding these comments, where a planning permission prescribes time limits as to frequency and intensity of noise, such conditions may be relevant in determining whether an activity constitutes a nuisance.
  • In the past, where a claimant has established that a nuisance has been committed, he is entitled to an injunction preventing the continuing commission of the activity in question (together with damages for past nuisance). The legal burden is then on the defendant to evidence why an injunction is not appropriate. In assessing whether an injunction should be granted the court may consider the test laid down by the Court of Appeal in Shelfer v City of London Electric Lighting Co [5] which states that a claimant may not be entitled to an injunction where:
    • the injury to the claimant is small
    • the injury is capable of being assessed in monetary terms
    • the claimant can be adequately compensated by payment of a small sum of money
    • the case is one where the grant of an injunction would be oppressive.

The Supreme Court took the opportunity to issue guidance on when damages were more appropriate than an injunction and signalled “a move away from the strict criteria derived from Shelfer”. The Court has an “unfettered” discretion not to award an injunction and to instead compensate a claimant in damages and there should be no preference either way, other than it is for the defendant to prove that an injunction should not be granted once the wrong is established. So, while the Shelfer factors are still of relevance, the court’s discretion would include factoring in, for example, the existence of planning permission authorising the activity complained of. It could (but not necessarily) lead the court to conclude that an injunction is not appropriate and that it is in the public interest for damages to be awarded instead.

WM Comment

This judgment is an important one for a number of reasons. Previously, most of the authorities on the subject had been given in the Court of Appeal or lower courts, and a Supreme Court judgment provides a helpful clarification of the principles of private nuisance and damages in lieu of an injunction, bringing the law into the modern era.

A significant impact of the case is that it has clarified that a right to make a noise nuisance can be acquired by prescription. This point had previously been contentious as noise can often be intermittent (as compared to a prescriptive right to light which is constant). By extrapolation, therefore, prescriptive rights to vibration or odour may be obtained, but like the motocross noise in this case, the vibration/odour must not merely exist but constitute a nuisance for the entire prescriptive period.

But perhaps the biggest sea change introduced by this case is the shift in practice courts should make when considering the award of injunctions. When considering whether damages are more appropriate, they will not simply consider the rigid criteria set out in Shelfer, but their discretion should involve an assessment of all factors pertinent to the case before them, both of public interest and rights private to the parties.

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[1] Coventry and Others v Lawrence and another [2014] UKSC 13
[2] Wheeler and another v JJ Saunders Ltd and others (CA) [1996] Ch 19
[3] As decided by the Court of Appeal in the earlier hearing of the present case – Coventry t/a RDC Promotions and another v Lawrence and others [2012] EWCA Civ 26.
[4] There is some doubt though as to whether this point can be relied upon, as the Court of Appeal has also stated that a planning permission itself could not alter the character of a neighbourhood sufficiently to affect the standard of reasonableness, albeit a policy to transform an area giving rise to the grant of planning permission could – Barr and others v Biffa Waste Services Ltd [2012] EWCA Civ 312.
[5] [1895] 1 Ch 287

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