Under common law, there are two categories of nuisance: public and private. The law of private nuisance is concerned with the relationship between neighbours. A person will be liable for causing a private nuisance if he encroaches onto, or causes physical damage to or interferes unduly with a neighbour’s quiet enjoyment of, his land.
Liability for private nuisance is controlled by applying the principles of give and take as between neighbours. If the user is reasonable, the defendant will not be liable for consequent harm to his neighbour’s enjoyment of his land, but if the user is unreasonable, the defendant will be liable, even though he may have exercised reasonable skill and care to avoid it.
In Watson v Croft Promo-Sport Ltd [2008] EWHC 759 (QB); [2008] PLSCS 118, local residents sought an injunction against the owners of a motor-racing circuit, complaining of excessive noise. The owner claimed that the use of the circuit had been authorised by the grant of planning consent. It accepted that a planning permission could not authorise a nuisance, but argued that it could change the character of the neighbourhood by which the standard of reasonable user fell to be judged.
The High Court ruled that the essential rural character of the neighbourhood had not changed, even though the circuit had been used for racing for many years. The judge was satisfied that the noise was, at times, of a serious character, duration, intensity and tone and that it occurred too frequently to constitute a reasonable use of land.
It has long been established that it is not a defence to prove that a claimant came to the nuisance, but the owners of the circuit argued that the law should be brought up to date. It suggested that the residents had “come to the nuisance” and that they should not be allowed to complain. The judge accepted that it can sometimes be unjust to allow someone who acquires property in the full knowledge of a nuisance to make a claim, but ruled that he was bound by the rules laid down in previous cases. He also held that no injustice arose in this case, because the residents had not come to the nuisance with full knowledge of it.
The judge declined to grant the residents an injunction because they had taken far too long to issue proceedings (although they had frequently complained of the nuisance). He did, however, award substantial damages to compensate the residents for the noise.
The circuit had been established for more than 40 years, but the longevity of user did not grant the owner immunity from an action in nuisance, especially since the user had changed and intensified over the years. The case underlines the importance of making careful enquiries before purchasing land to check whether the owner has received complaints of nuisance or, indeed, complained about a nuisance emanating from property nearby.
Allyson Colby is a property law consultant
