Topics: Nuisance – Noise – Motor racing
Alternative Citations:  UKSC 13
Hearing Date: 26 February 2014
Court: Supreme Court
Judge: Lord Neuberger P, Lord Mance, Lord Clarke, Lord Sumption and Lord Carnwath SCJJ
Representation: Stephen Hockman QC and William Upton (instructed by Richard Buxton Environmental and Public Law) for the appellants. Robert McCracken QC and Sebastian Kokelaar (instructed by Pooley Bendall Watson) for the respondents.
Nuisance – Noise. In a case concerning private nuisance, the Supreme Court provided guidance on the following issues: (i) the extent, if any, to which it was open to a defendant to contend that he had established a prescriptive right to commit what would otherwise be a nuisance by means of noise; (ii) the extent, if any, to which a defendant to a nuisance claim could rely on the fact that the claimant ‘came to the nuisance’; (iii) the extent, if any, to which it was open to a defendant to a nuisance claim to invoke the actual use of his premises, complained of by the claimant, when assessing the character of the locality; (iv) the extent, if any, to which the grant of planning permission for a particular use could affect the question of whether that use was a nuisance or any other use in the locality could be taken into account when considering the character of the locality; and (v) the approach to be adopted by a court when deciding whether to grant an injunction to restrain a nuisance being committed, or whether to award damages instead, and the relevance of planning permission to that issue.
The judgment is available at:  UKSC 13
In February 1975, planning permission was granted to TW, an individual and one of the respondents, for the construction of a stadium (the stadium) in Suffolk, on agricultural land which he owned. In the precedings years, planning permission was obtained for ‘speedway racing and associated facilities’, stock car and banger racing and also there was a grant of a Certificate of Lawfulness of Existing Use or Development (CLEUD). To the rear of the stadium was a motocross track (the track), an undulating track on which that particular type of motorbike racing and practice took place. The track was constructed and used pursuant to a personal planning permission for motocross events, renewed from time to time and always subject to conditions which sought to control the frequency of events, and the amount of sound which was emitted during such events.
A few hundred metres away from the stadium and track was a bungalow called Fenland, which was built in the 1950s, which was otherwise surrounded by agricultural land. In 2006, the appellants purchased and moved into Fenland. Following complaints to the local authority, in 2008, the appellants issued proceedings in the High Court for nuisance. In those proceedings, the appellants contended that the activities at the Stadium and on the Track constituted a nuisance individually, or in the alternative cumulatively. They maintained this contention following the completion of the attenuation works. The respondents, the owners of the stadium and the track at the relevant time, filed a joint defence denying nuisance.
In April 2010, Fenland suffered a serious fire, which caused extensive damage and rendered it uninhabitable. Since then, no-one had lived there, due to it not being rebuilt. The judge concluded that the appellants had a case in nuisance (see - of the judgment) and in terms of remedies he stated that he was minded to grant an injunction to restrain the respondents from carrying on activities at the stadium or at the track which emitted more than a specified level of noise, which he had in mind to fix at specific levels which he identified, but would suspend the injunction due to the fact that Fenland was not inhabited at the time (see ,  of the judgment).
The respondents appealed against the decision. The Court of Appeal reversed the judge’s decision, holding that the appellants had failed to establish that the respondents’ activities at the stadium and the track constituted a nuisance. Further, it was held that the judge had erred in holding that the actual use of the stadium and the track over a number of years, with planning permission, or a CLEUD, could not be taken into account when assessing the character of the locality for the purpose of determining whether an activity was a nuisance. In those circumstances, it was unnecessary for the Court of Appeal to consider any other issue, although a provisional view was expressed that, contrary to the judge’s conclusion, it was possible to obtain by prescription a right to commit what would otherwise be a nuisance (see  All ER (D) 180 (Feb)) The appellants appealed to the Supreme Court.
The following issues fell to be determined: (i) the extent, if any, to which it was open to a defendant to contend that he had established a prescriptive right to commit what would otherwise be a nuisance by means of noise; (ii) the extent, if any, to which a defendant to a nuisance claim could rely on the fact that the claimant ‘came to the nuisance’; (iii) the extent, if any, to which it was open to a defendant to a nuisance claim to invoke the actual use of his premises, complained of by the claimant, when assessing the character of the locality; (iv) the extent, if any, to which the grant of planning permission for a particular use could affect the question of whether that use was a nuisance or any other use in the locality could be taken into account when considering the character of the locality; and (v) the approach to be adopted by a court when deciding whether to grant an injunction to restrain a nuisance being committed, or whether to award damages instead, and the relevance of planning permission to that issue.
The appeal would be allowed.
(1) It was well established that an eas
ement could be acquired by prescription as well as by express grant. In the light of relevant principles, practical considerations and judicial dicta,it was possible to obtain by prescription a right to commit what would otherwise be a nuisance by noise, or to put it another way, to transmit sound waves over neighbouring land (see ,  of the judgment).
R (on the application of Lewis) v Redcar and Cleveland Borough Council  All ER (D) 25 (Mar) applied.
(2) It had been long accepted that it was not a defence to a claim in nuisance to show that the claimant acquired, or started to occupy, her property after the nuisance had started. In other words, it was no defence that the claimant had come to the nuisance. The law was clear in a case where the claimant in nuisance used her property for essentially the same purpose as that for which it had been used by her predecessors before the alleged nuisance started: in such a case, the defence of coming to the nuisance had to fail. Further, the notion that coming to the nuisance was no defence was consistent with the fact that nuisance was a property-based tort, so that the right to allege a nuisance should, as it were, run with the land (see , ,  of the judgment).
Bliss v Hall  132 ER 758 applied; Miller v Jackson  3 All ER 338 applied.
(3) A defendant, faced with a contention that his activities gave rise to a nuisance, could rely on those activities as constituting part of the character of the locality, but only to the extent that those activities did not constitute a nuisance - and to avoid any misunderstanding, if the activities could not be carried out without creating a nuisance, then they would have to be entirely discounted when assessing the character of the neighbourhood. Similarly, any other activity in the neighbourhood could properly be taken into account when assessing the character of the neighbourhood, to the extent that it did not give rise to an actionable nuisance or was otherwise unlawful. There would frequently be many uses which might not have obtained a specific sanction (through being agreed to by the claimant, through a prescriptive right or through the court refusing an injunction), but which were unobjectionable as a matter of law, and might therefore properly be taken into account. In addition, the fact that it was not open to a neighbouring claimant to object to the defendant’s activities simply because they emitted noise did not mean that the defendant was fee to carry on those activities in any way he wished. The claimant was entitled to expect the defendant to take all reasonable steps to ensure that the noise was kept to a reasonable minimum (see - of the judgment).
Bamford v Turnley [1861-73] All ER Rep 706 applied.
(4) The mere fact that the activity which was said to have given rise to the nuisance had the benefit of planning permission was normally of no assistance to the defendant in a claim brought by a neighbour who contended that the activity caused a nuisance to her land in the form of noise or other loss of amenity. A planning authority had to consider the effect of a proposed development on occupiers of neighbouring land, but that was merely one of the factors which had to be taken into account. The planning authority could be expected to balance various competing interests, which would often be multifarious in nature, as best it could in the overall public interest, bearing in mind relevant planning guidelines. Some of those factors would play no part in the assessment of whether a particular activity constituted a nuisance. When granting planning permission for a change of use, a planning authority would be entitled to assume that a neighbour whose private rights might be infringed by that use could enforce those rights in a nuisance action; it could not be expected to take on itself the role of deciding a neighbour’s common law rights. However, there would be occasions when the terms of a planning permission could be of some relevance in a nuisance case. While the decision whether the activity caused a nuisance to the claimant was not for the planning authority but for the court, the existence and terms of the permission were not irrelevant as a matter of law, but in many cases they would be of little, or even no, evidential value, and in other cases rather more (see - of the judgment).
Barr v Biffa Waste Services Ltd  All ER (D) 141 (Mar) applied.
(5) The court’s power to award damages in lieu of an injunction involved a classic exercise of discretion, which should not, as a matter of principle, be fettered. When a judge was called on to decide whether to award damages in lieu of an injunction, there should not be any inclination either way: the outcome should depend on all the evidence and arguments. Where a claimant had a prima facie right to an injunction to restrain a nuisance, and the court decided to award damages instead, those damages should not always be limited to the value of the consequent reduction in the value of the claimant’s property. While double counting had to be avoided, the damages might well, at least where it was appropriate, also include the loss of the claimant’s ability to enforce her rights, which might often be assessed by reference to the benefit to the defendant of not suffering an injunction (see ,  of the judgment).
In the instant case, there was no question of the respondents being able to rely on the fact that the appellants had come to the nuisance, or any other similar argument. The respondents failed to establish a prescriptive right to create what would otherwise be a nuisance in the instant case because they did not show that their activities during a period of 20 years amounted to a nuisance. On the findings made by the judge, and the evidence as explained by him, it fell well short of establishing that the activities had caused a nuisance to Fenland for a continuous period of 20 years at any time between the commencement of the use of the stadium in 1976 and the date on which those proceedings were issued in 2008 (see , , , , , ,  of the judgment).
The injunction granted by the judge should be restored. The fairest way to deal with the point that the judge should have awarded damages instead of an injunction 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 (see , , , , ,  of the judgment).
Decision of the Court of Appeal, Civil Division  All ER (D) 180 (Feb) Reversed.
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