Lawrence and another v Coventry (t/a RDC Promotions) and others
Mummery, Jackson and Lewison LJJ
Private nuisance – Motor sports – Respondents succeeding in claim for private nuisance in respect of noise emanating from stadium and track – Planning permissions existing for motors sports uses – Whether planning permissions to be taken into account when whether noise from motor sports constituting private nuisance – Whether permissions changing character of locality – Appeal allowed
The appellants organised motor sports events at a stadium and track located on former farmland just outside a village. The second appellant held the site on a lease from the landowner. The motor sport uses had the benefit of personal planning permissions and a lawful use certificate. In 2006, the respondents purchased a house in the village. They subsequently complained to the district council about the noise generated by motor sports at the site. In 2007, the council served abatement notices on the appellants under section 80 of the Environmental Protection Act 1990, resulting in works being carried out to reduce the noise escaping from the site. The council were satisfied with those works and took no further action on subsequent complaints submitted by the respondents.
The respondents brought proceedings against the appellants, and against other individuals and organisations involved in the activities at the site, seeking an injunction and damages on the ground that the noise generated by the motor sports amounted to a private nuisance. In the court below, the judge held that the noise constituted a nuisance to the occupiers of the respondents’ property, for which the appellants were responsible, and awarded damages of £20,850, which were apportioned between the appellants save for £100 payable by the landowner. He also granted injunctive relief against the appellants, restricting the times at which noise could be generated and the permissible levels of such noise.
The appellants appealed. Their primary contention was that the planning permissions had changed the nature of the locality and that the judge should have taken that changed character into account when assessing whether the noise constituted a nuisance. They also submitted that if it was a nuisance, they had acquired a right by prescription to cause it. The respondents cross-appealed against the dismissal of their claim against the other defendants.
Held: The appeal was allowed; the cross-appeal was dismissed.
The planning system existed to protect the public interest, not private interests, although both grants and refusals could impact on private interests, sometimes to a substantial extent. Although a planning authority could not, by the grant of planning permission, authorise the commission of a nuisance, the grant of planning permission followed by the implementation of that permission might have the effect of changing the character of a locality, with consequential effects on private rights. It would be a question of fact in each case whether the character of the locality had been changed in that way. If it had, then whether particular activities in that locality constituted a nuisance would have to be decided against the background of its changed character and, consequently, otherwise offensive activities in that locality might cease to constitute a nuisance: Allen v Gulf Oil Refining Ltd [1980] QB 156, Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343; [1992] 1 PLR 113, Wheeler v JJ Saunders Ltd [1996] Ch 19; [1995] 1 PLR 55, Hunter v Canary Wharf Ltd [1997] AC 655; [1997] EGCS 59, Hirose Electrical UK Ltd v Peak Ingredients Ltd [2011] EWCA Civ 987; [2011] Env LR 34; [2011] PLSCS 213 and Watson v Croft Promo-sport Ltd [2009] EWCA Civ 15; [2009] 3 All ER 249; [2009] 2 EGLR 57; [2009] 18 EG 86 considered.
When the respondents acquired their property, various forms of motor sports had been taking place at the appellants’ site for the past 13 years and on numerous occasions throughout the year. It was irrelevant that the planning permission was personal in nature. Those noisy activities were an established, and indeed a dominant, feature of the locality. The noise of motors sports emanating from the site was an established part of the character of the locality and could not be left out of account when considering the matters that the respondents claimed to constitute a nuisance. The judge’s finding of private nuisance was based on an error of law and could not stand. The activities in question did not constitute a nuisance in the changed locality and the claim in private nuisance should be dismissed.
Per curiam (Lewison LJ): The appellants’ claimed “easement of noise” would be a positive easement consisting of the right to transmit sound waves over the servient tenement. Such an easement could in principle be acquired by prescription. The main problem in such cases would to establish what level of noise had been created over the whole period of prescription, so as to entitle the putative dominant owner to continue to make noise at the same level.
Robert McCracken QC and Sebastian Kokelaar (instructed by Pooley Bendall & Watson Solicitors, of Cambridge) appeared for the appellants; Peter Harrison QC and William Upton (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the respondents; Edward Denehan (instructed by Hewitsons LLP) appeared for the respondents to the cross-appeal.
Sally Dobson, barrister
Private nuisance – Motor sports – Respondents succeeding in claim for private nuisance in respect of noise emanating from stadium and track – Planning permissions existing for motors sports uses – Whether planning permissions to be taken into account when whether noise from motor sports constituting private nuisance – Whether permissions changing character of locality – Appeal allowedThe appellants organised motor sports events at a stadium and track located on former farmland just outside a village. The second appellant held the site on a lease from the landowner. The motor sport uses had the benefit of personal planning permissions and a lawful use certificate. In 2006, the respondents purchased a house in the village. They subsequently complained to the district council about the noise generated by motor sports at the site. In 2007, the council served abatement notices on the appellants under section 80 of the Environmental Protection Act 1990, resulting in works being carried out to reduce the noise escaping from the site. The council were satisfied with those works and took no further action on subsequent complaints submitted by the respondents.The respondents brought proceedings against the appellants, and against other individuals and organisations involved in the activities at the site, seeking an injunction and damages on the ground that the noise generated by the motor sports amounted to a private nuisance. In the court below, the judge held that the noise constituted a nuisance to the occupiers of the respondents’ property, for which the appellants were responsible, and awarded damages of £20,850, which were apportioned between the appellants save for £100 payable by the landowner. He also granted injunctive relief against the appellants, restricting the times at which noise could be generated and the permissible levels of such noise.The appellants appealed. Their primary contention was that the planning permissions had changed the nature of the locality and that the judge should have taken that changed character into account when assessing whether the noise constituted a nuisance. They also submitted that if it was a nuisance, they had acquired a right by prescription to cause it. The respondents cross-appealed against the dismissal of their claim against the other defendants.Held: The appeal was allowed; the cross-appeal was dismissed. The planning system existed to protect the public interest, not private interests, although both grants and refusals could impact on private interests, sometimes to a substantial extent. Although a planning authority could not, by the grant of planning permission, authorise the commission of a nuisance, the grant of planning permission followed by the implementation of that permission might have the effect of changing the character of a locality, with consequential effects on private rights. It would be a question of fact in each case whether the character of the locality had been changed in that way. If it had, then whether particular activities in that locality constituted a nuisance would have to be decided against the background of its changed character and, consequently, otherwise offensive activities in that locality might cease to constitute a nuisance: Allen v Gulf Oil Refining Ltd [1980] QB 156, Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343; [1992] 1 PLR 113, Wheeler v JJ Saunders Ltd [1996] Ch 19; [1995] 1 PLR 55, Hunter v Canary Wharf Ltd [1997] AC 655; [1997] EGCS 59, Hirose Electrical UK Ltd v Peak Ingredients Ltd [2011] EWCA Civ 987; [2011] Env LR 34; [2011] PLSCS 213 and Watson v Croft Promo-sport Ltd [2009] EWCA Civ 15; [2009] 3 All ER 249; [2009] 2 EGLR 57; [2009] 18 EG 86 considered.When the respondents acquired their property, various forms of motor sports had been taking place at the appellants’ site for the past 13 years and on numerous occasions throughout the year. It was irrelevant that the planning permission was personal in nature. Those noisy activities were an established, and indeed a dominant, feature of the locality. The noise of motors sports emanating from the site was an established part of the character of the locality and could not be left out of account when considering the matters that the respondents claimed to constitute a nuisance. The judge’s finding of private nuisance was based on an error of law and could not stand. The activities in question did not constitute a nuisance in the changed locality and the claim in private nuisance should be dismissed.Per curiam (Lewison LJ): The appellants’ claimed “easement of noise” would be a positive easement consisting of the right to transmit sound waves over the servient tenement. Such an easement could in principle be acquired by prescription. The main problem in such cases would to establish what level of noise had been created over the whole period of prescription, so as to entitle the putative dominant owner to continue to make noise at the same level.Robert McCracken QC and Sebastian Kokelaar (instructed by Pooley Bendall & Watson Solicitors, of Cambridge) appeared for the appellants; Peter Harrison QC and William Upton (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the respondents; Edward Denehan (instructed by Hewitsons LLP) appeared for the respondents to the cross-appeal.
Sally Dobson, barrister
