Planning permission no defence to private nuisance claim

statue-of-justice-302776-mfreeimages

The Supreme Court has given an important judgment on the principles of private nuisance for the 21st century. The case related to a noise nuisance caused by the respondents’ motocross and speedway stadium.
A nuisance is an act (or a failure to act) on the part of a respondent, which is not otherwise authorised and which causes an interference with the claimant’s reasonable enjoyment of her land.
The Supreme Court unanimously granted the appeal by the claimants who lived near to the stadium. Lord Neuberger gave the lead judgment, concluding that:
• The respondents’ activities at the Stadium and the Track constitute a nuisance and, as the respondents failed to establish a prescriptive right to carry out these activities, the injunction granted by the judge is restored,
• It is possible to acquire a right to commit what would otherwise be a noise nuisance by prescription (over 20 years).
• It is not generally a defence to a claim in nuisance to show that the claimant “came to the nuisance” by acquiring or moving into their property after the nuisance had started. However, in some circumstances, it may be a defence that it is only because the claimant has changed the use of their land that the respondent’s pre-existing activity is claimed to have become a nuisance.
• A respondent can rely on its activities as constituting part of the character of the locality, but only to the extent that those activities do not constitute a nuisance.
• It is wrong in principle that the grant of planning permission should deprive a neighbouring property owner of a right to object to what would otherwise be a nuisance, without providing compensation. However, there will be occasions when the terms of a planning permission could be of some relevance in a nuisance case.

speedway-419239-sfreeimages

• The existence of a planning permission which expressly or inherently authorises carrying on an activity in such a way as to cause a nuisance can be a factor in favour of a court refusing an injunction and compensating the claimant in damages. In a number of recent cases, judges have been too ready to grant injunctions without considering whether to award damages instead.
• The starting point is that an injunction should be granted, so the legal burden is on the respondent to show why it should not. The existence of a planning permission which expressly or inherently authorises carrying on an activity in such a way as to cause a nuisance can be a factor in favour of refusing an injunction and compensating the claimant in damages. In a number of recent cases judges have been too ready to grant injunctions without considering whether to award damages instead.
• Lord Neuberger concluded that the respondents’ activities at the Stadium and on the Track do constitute a nuisance and that, as the respondents had not established that their activities amounted to a nuisance during a period of at least 20 years, they failed to establish a prescriptive right to carry out these activities. Accordingly, the claimant’s appeal succeeded and the injunction granted by the judge restored. However, when and if the matter goes back before the judge, he should be entitled to consider whether to discharge the injunction and award damages instead.

speedway-419237-sfreeimages

 

 Comment
• The legal burden is on the respondent to show why an injunction should not be granted. However, the Supreme Court decided that the public interest has to be taken more into account in this approach.
• A more flexible position should be adopted by a judge, when being asked to award damages instead of an injunction, than that suggested in recent cases.
• The judgment contains other important and useful observations, in particular, on reasonable user of land and the impact of planning on character of the locality.
• In some circumstances, particularly where the activity has planning permission, Nuisance claims may be more open to being settled by damages for compensation.

gas-horn-1064039-sfreeimages

 The Supreme Court’s decision is not only important for operators of noisy or controversial activities, but also to developers and Local Planning Authorities when considering the role and impact of planning permission.

 Case
Coventry and others v Lawrence and another [2014] UKSC 13

J Paul Sykes LLB LLM
First Published
March 2014

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s