Nuisance — Noise Injunction — Motor-racing circuit — Local residents claiming noise from circuit excessive and seeking to restrict number of race days — Whether planning permission for circuit effecting change in character of neighbourhood — Whether damages to be awarded in lieu of injunction
The defendant was the leaseholder of land that it used as a motor-racing circuit. The claimants, who occupied homes nearby, brought an action against the defendant, contending that the use of the circuit gave rise to excessive noise and constituted a nuisance. They sought damages and injunctive relief.
The defendant accepted that there were high levels of noise, but contended that the claimants had no claim in nuisance since the noise was to be expected in a locality whose nature and character had been established by planning permissions for the circuit granted in 1963 and 1998, the latter being the subject of a detailed planning agreement. Allowing the claim in part, Simon J held that: (i) the planning permissions had not changed the character and appearance of the area, which had remained essentially rural; (ii) the defendant’s activities constituted an actionable nuisance, exceeding the threshold of reasonable user, which he assessed at 40 racing, vehicle-testing or track days per year; and (iii) no injunction should be granted, but damages should be awarded in lieu for the diminution in value of the claimants’ properties and loss of amenity. In refusing an injunction, he took into account that the claimants had demonstrated a willingness to accept 40 days, rather than the 20 they contended for, upon payment of compensation.
Both parties appealed. The claimants challenged the refusal to grant an injunction while the defendant contended that the judge had been wrong in law not to conclude that the nature and character of the locality had changed as a result of the planning permissions.
Held: The claimants’ appeal was allowed; the defendant’s appeal was dismissed. (1) The grant of planning permission as such does not affect the private law rights of third parties, although the implementation of that planning permission may so alter the character and appearance of the locality as to shift the standard of reasonable user that governs the question of whether a nuisance has occurred. There is no middle category of planning permissions, granted as the result of a strategic planning decision affected by considerations of public interest, that, without implementation, can affect the private rights of the citizen to complain of a common law nuisance. In any event, neither of the planning permissions upon which the defendant relied were “strategic” in nature. The question of whether the nature and character of the locality had changed is a question of fact and degree and, on the evidence, it could not be said that the judge’s conclusion on that matter, or on the threshold of reasonable user, was so plainly wrong or perverse as to justify any interference with his decision. Accordingly, a nuisance had been established. (2) The claimants were entitled to an injunction. Damages in lieu should be awarded only in exceptional circumstances, where the grant of an injunction would be oppressive to the defendant. The mere fact that a claimant is prepared to accept monetary compensation up to a certain level of inconvenience does not mean that a money award can compensate that claimant for inconvenience in excess of that level. Public benefit arising from the defendant’s activities is relevant but cannot negate the requirement of exceptional circumstances or oppression. Its activities had caused substantial injury to the claimants in their enjoyment of their properties, and the grant of an appropriate injunction restricting the defendant to its core activities would not be oppressive.
The following cases are referred to in this report.
Allen v Gulf Oil Refining Ltd [1980] QB 156; [1979] 3 WLR 523; [1979] 3 All ER 1008; [1979] JPL 674, CA
Dennis v Ministry of Defence [2003] EWHC 793 (QB); [2003] 2 EGLR 121; [2006] RVR 45; [2003] JPL 1577
Gillingham Borough Council v Medway (Chatham Docks) Co Ltd [1993] QB 343; [1992] 3 WLR 449; [1992] 3 All ER 923; (1991) 91 LGR 160; (1991) 63 P&CR 205; [1992] 1 PLR 113; [1992] JPL 458
Hunter v Canary Wharf Ltd; sub nom Hunter v London Docklands Development Corporation [1997] AC 655; [1997] 2 WLR 684; [1997] 2 All ER 426, HL
Jaggard v Sawyer [1995] 1 WLR 269; [1995] 2 All ER 189; [1995] 1 EGLR 146; [1995] 13 EG 132, CA
Regan v Paul Properties DPF No 1 Ltd [2006] EWCA Civ 1391; [2007] Ch 135; [2006] 3 WLR 1131; [2006] 3 EGLR 94; [2006] 46 EG 210
Shelfer v City of London Electric Lighting Co Ltd (No 1); Meux’s Brewery Co v City of London Electric Lighting Co [1895] 1 Ch 287, CA
Watson v Croft Promo-Sport Ltd; sub nom Watson v Croft Promosport Ltd [2008] EWHC 759 (QB); [2008] 3 All ER 1171; [2008] 2 EGLR 149
Wheeler v JJ Saunders Ltd [1996] Ch 19; [1995] 3 WLR 466; [1995] 2 All ER 697, CA
This was an appeal by both parties from a decision of Simon J, sitting in the Newcastle-upon-Tyne District Registry of the Queen’s Bench Division, allowing a claim by the claimants, Derek Watson, Julia Watson and Jill Wilson, against the defendant, Croft Promo-Sport Ltd, for noise nuisance, but awarding damages in lieu of an injunction.
David Hart QC and Jeremy Hyam (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the claimants; Richard Jones QC and Gordon Wignall (instructed by Cobbetts LLP, of Leeds) represented the defendant.
Giving judgment, Sir Andrew Morritt CVO said:
Introduction
[1] The Croft Motor Circuit, covering around 195ha on the site of the Croft Aerodrome, built during world war two at Dalton-on-Tees, near Darlington, County Durham, is occupied and managed by the defendant, Croft Promo-Sport Ltd. Three hundred metres to the north of the circuit, at Vince Moor East, lie the houses owned and occupied by the claimants, Mr Derek Watson and Mrs Julia Watson and their daughter Mrs Jill Wilson. On 16 March 2006, the claimants instituted proceedings against the defendant, alleging that the use of the circuit by |page:58| the defendant gave rise to excessive noise and constituted a nuisance. They sought an injunction to restrain the continuation of the alleged nuisance and damages as compensation for its commission in the past.
[2] The claim was defended by the defendant on a number of grounds. In particular, it contended that although its activities did cause noise and some discomfort and inconvenience to the claimants, there was no actionable nuisance because its use of the circuit was reasonable having regard to the nature and character of the area arising from the grant of planning permissions in 1963 and 1998. In addition, it claimed that if, contrary to that and its other defences, actionable nuisances had been caused, the claimants should not be granted any injunction to restrain its future commission.
[3] The action was tried by Simon J in Newcastle over six days in January 2008. In addition to hearing oral evidence from the claimants, the defendant and others, Simon J viewed the circuit and its immediate surrounding area, including the claimants’ houses. On 16 April 2008, Simon J handed down his judgment (see [2008] EWHC 759 (QB)*) setting out the reasons for his decisions, among others, that (1) the nature and character of the locality had not been changed by the planning permissions granted in 1963 or 1998 but remained essentially rural so that (2) the activities of the defendant did constitute an actionable nuisance, but that (3) it was not an appropriate case for the grant of an injunction. In the event, he awarded damages of £109,600 to Mr and Mrs Watson and of £40,000 to Mrs Wilson as compensation for the diminution in value of their properties and loss of amenity.
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* Editor’s note: Reported at [2008] 2 EGLR 149
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[4] Both parties now appeal from the order of Simon J with the permission of Jacob LJ. The defendant contends that the judge was wrong on issue (1) and, for that reason, on issue (2). It submits that the action should have been dismissed. The claimants, by contrast, are content with the judge’s decisions on issues (1) and (2), but submit that, given those conclusions, the circumstances did not justify his refusal of an injunction to restrain future nuisance so that he was wrong on issue (3). I will in due course consider the contentions of the defendant first and then, in the light of my conclusion in respect of issues (1) and (2), the claimants’ submission that the judge should have granted injunctive relief. First, it is necessary to set out the facts and the judge’s conclusions in a good deal more detail.
Facts
[5] As I have indicated, Croft Aerodrome was built during the second world war and covers some 195ha. Between 1949 and 1957, it was used intermittently for car-race meetings. In addition, in 1951, it was designated as a relief airfield. In 1962, the then owner of the airfield applied for planning permission for a change of use so as to permit motor trials, motor and motorcycle races and other sporting events, including pedal cycling and athletics and use by aircraft, helicopters and gliders. The first application made in July was refused on the ground of anticipated noise. A second, amended application was made in September. In the letter accompanying the amended application, it was explained that the application had been amended so as to limit the use to not more than four race meetings per annum for formula cars in order to satisfy Croft Council. This application was also refused by the local planning authority. The applicant appealed, a local inquiry was held in March 1963 and, in his report to the minister dated 28 April 1963, the inspector recommended that the appeal be allowed.
[6] In his report, the inspector set out the rival contentions of the parties. He found as a fact that there was a need for a motor and motorcycle racing track in the North East. He noted that the only objection of the local planning authority was on the ground of noise. In his conclusion, he indicated that he had been impressed by the evidence of need for the proposal and the apparent convenience of the site to satisfy that need. He continued:
In my opinion it has not been demonstrated that the disturbance to the public due to noise would be sufficient to justify rejecting the proposal, provided the use is restricted by the conditions which the appellant indicated would be acceptable.
[7] The minister accepted the recommendation of his inspector and, in a decision letter dated 15 August 1963, granted planning permission for:
(a) the use of that part of Croft Airfield… shown on the plan submitted with the application for motor and motor cycle events, for driving tuition and as a sports centre…
There followed a number of conditions and further permission as set out in para (b), none of which is material. Neither the permission granted in para (a) nor the conditions attached to it reflected the restriction to not more than four race meetings a year to which the letter accompanying the amended application had referred.
[8] From 1963 to 1979, the part of the airfield to which the permission extended was used for motor racing on not more than 20 racing days per year together with additional days of practice associated with the racing days. In 1979, the airfield, including the racing circuit, was sold. In 1981, the new owner applied for planning permission for the formation of spoil heaps of concrete and stone from the old runways that would arise if his intention to return the airfield to agricultural use was implemented. Such permission was granted but not implemented. In the period 1979 to 1994, there was no motor racing on the airfield except for rallycross on 10 days a year and some engine testing on other days. (Rallycross consists of racing modified production cars on a mixture of loose and sealed surfaces.)
[9] By around 1994, the defendant had acquired a leasehold interest in, at least, that part of the airfield occupied by the circuit. It implemented the planning permission granted in 1963 by resurfacing the circuit and certain other works. In May 1995, there was held what was called the Croft Renaissance Meeting. In late 1996 and early 1997, the configuration of the circuit was changed. Motor racing recommenced in April 1997 under the auspices of the Croft Classic & Historic Motorsport Ltd, to which a management contract had been awarded by the defendant in 1996.
[10] In September 1998, there was a further public inquiry in respect of a deemed refusal of permission for the removal of the conditions imposed in 1963 and for other matters. After the hearing, on 8 October 1998, the defendant, as lessee, the freehold owner of the airfield and circuit and their mortgagee executed a unilateral undertaking, made under section 106 of the Town and Country Planning Act 1990, for the regulation of the circuit for motor and motorcycle events, for driving tuition and as a sports centre. The defendant agreed to ensure that no vehicle using the circuit should exceed certain maximum noise levels and that the use of the circuit for motor and motorcycle events should be limited by reference to noise levels measured at a defined point on the circuit. The details are not material. It is sufficient to summarise them by reference to type of event, noise level and frequency as follows:
|
Event |
Level |
Frequency |
|
N1 |
under 95dBA |
no more than 10 days |
|
N2 |
93dBA |
40 |
|
N3 |
85dBA |
70 |
|
N4 |
78dBA |
110 |
|
N5 |
70dBA |
unlimited |
[11] By his letter dated 26 October 1998, the inspector allowed the appeal. In paras 7 to 16, he rejected the argument that the permission granted in 1963 was subject to the limitation to not more than four race meetings a year expressed in the letter accompanying the amended application but not carried forward into the permission actually granted. In paras 17 to 22, he rejected the argument that the 1963 permission had been abandoned. In paras 24 to 32, he considered the issues. He concluded that:
the project would seriously diminish residential amenity in a rural area especially in the summer and at weekends. |page:59|
[12] In paras 33 to 42, he referred to other material considerations. These included the 1963 permission, the section 106 agreement and its detailed terms. In that connection, he considered that:
[37] Bearing in mind the very wide planning use rights which the site now enjoys, I am very firmly convinced that the project would strengthen significantly the ability of the local planning authority to control noise at this long established circuit.
[38] By the s106 Agreement a series of measures would control the nature and intensity of the use of the site, as well as noise impact on the locality, compared to virtually no controls provided by the existing planning permission… The Council’s concern about noise… is echoed by local residents who are worried that significantly higher noise levels than occasionally occur now would happen on many days… Without the undertaking, however, there could be racing every day and, what is more significant, little control by the Council over unsilenced vehicles.
[13] His conclusion, expressed in para 43, was:
If this appeal were allowed, objectors would be very upset. If it were dismissed their experiences would be very likely to remain the same; the Council would only have the planning controls that they could have enforced under the existing planning permissions. … The complaints indicate there has been a serious loss of amenity, which the Council as the local planning authority have not remedied. … It is clear to me that the project would effectively reduce the almost unrestricted rights which the operators now enjoy to operate the circuit… I conclude that the project would achieve a reasonable compromise between amenity, particularly in terms of noise experienced in the local community, and the operation of the racing community…
[14] In the result, the inspector granted planning permission for the continued use of the land for motor and motorcycle events, a sports centre and other immaterial uses free from the conditions imposed in 1963, but subject to the conditions undertaken in the section 106 agreement.
[15] Thereafter, until 2007, as recorded by Simon J in [30] of his judgment, the activity at the circuit ranged from a low of 144 days in 2001, of which 98 were N1 to N4 days, to 207 days in 2000, of which 147 were N1 to N4 days. All these days were concentrated in the summer months.
[16] Thus, the use of the circuit since 1949 falls into five distinct periods:
(1) 1949 to 1962: intermittent use for car racing;
(2) 1963 to 1979: car racing on not more than 20 days per year together with additional associated practice days;
(3) 1980 to 1994: 10 days a year rallycross;
(4) 1995 to 1997: sporadic race meetings interspersed with track alteration and improvements;
(5) 1998 to 2006: between 98 and 147 N1 to N4 days per year, as defined in the section 106 agreement.
Judgment of Simon J
[17] After setting out the facts substantially as I have summarised them, the judge made certain preliminary observations on the evidence, including his view and the attitude of Mr Watson to the activities of the defendant. In [33], he made the important observation that:
The Claimants’ objections are not to the car and motor-bicycle racing fixtures which amount to about 20 (N1 and N2) events each year (over approximately 45-50 days); but to the noise from the circuit’s other activities, in particular Vehicle Testing Days and Track Days (when members of the public drive vehicles at speed all day) at noise levels which reach N2N4 levels.
[18] Simon J then set out the issues before him, in [34]. They were:
(i) What is the nature and character of the neighbourhood relevant for assessing the question of nuisance? In particular, is the effect of the planning permissions and the s106 Agreement such that the character of the neighbourhood must be determined by reference to the activities undertaken at the Circuit subsequent to those planning permissions and s106 Agreement? As of what date is it to be said that any change in the nature and character of the area has been effected?
(ii) If the Defendant fails to establish that the nature and character of the area must be determined by reference to the planning instruments, then have the Claimants established an unreasonable user of land by the Defendants and hence a nuisance, and if so to what extent?
(iii) Did either of the Claimants ‘come to the nuisance’ and if so does that amount to a defence to their Claims?
(iv) To the extent that the Claimants establish a nuisance in the light of the answer to the above, then have the Claimants acquiesced in the infringement of their common law rights such that it would be unconscionable for them to be granted (1) equitable relief in the form of an injunction, and/or (2) a remedy in damages?
(v) To the extent that any rights and remedies of the Claimants are not barred by acquiescence, then should the Court’s discretion be exercised to grant them an injunction, or should the Claimants be limited to a claim in damages?
(vi) If the Claimants are entitled to an injunction, then what should be the terms of the Court’s Order?
(vii) If nuisance is proved, in the light of the Court’s conclusions on injunctive relief, what is the value of (1) the Claimants’ claim for diminution in value of Pond House and the Granary attributable to the nuisance; (2) a claim for general damages for past nuisance since March 2000? The answer to these questions involve an assessment of:
(a) the un-blighted value of Pond House and the Granary, including what if any reductions to that un-blighted value should be made;
(b) the blighted value of each property in consequence of the Defendant’s activities at the Circuit;
(c) the extent to which the diminution in value of the properties is to be reduced by the activities at the Circuit which do not amount to a nuisance.
It was no part of the defendant’s case that it enjoyed a prescriptive right to commit a nuisance by noise arising from long usage of the circuit for motor racing or otherwise.
[19] For reasons that I will deal with in detail when considering the first issue on this appeal, the judge concluded that neither the planning permissions nor the section 106 agreement nor usage of the circuit thereunder had altered the nature and character of the locality. It remained essentially rural. In respect of the second issue, the judge considered that the threshold of reasonable user was 40 N1 to N4 days per year and not the larger number permitted by the section 106 agreement. Since such threshold had been substantially exceeded, the defendant was unable to make out a defence of reasonable user.
[20] The law did not permit a defence of “coming to the nuisance”. In any event, the claimants did not do so with full knowledge of it. There is no appeal from either of those conclusions. Similarly in respect of the fourth issue, Simon J concluded, in [80], that although there had been “a significant lack of activity between March 2003 and February 2005”, the defence of acquiescence, upon which the defendant relied, was not made out because:
the Claimants do not seek to prevent the core-racing activities of the Circuit; and that such expenditure as the Defendant has incurred during the periods of nuisance was incurred largely so as to enable racing to take place.
There is no appeal from those conclusions either.
[21] In respect of the fifth issue, the judge concluded that he should not grant injunctive relief for reasons that I shall consider in detail when dealing with the claimants’ appeal. Accordingly, the sixth issue did not arise before the judge. I did not understand that there was any dispute before us that if we take a different view the form of the injunction should reflect the threshold of reasonable use as found by the judge.
[22] In the light of the judge’s conclusions on the fifth issue, the questions in respect of damages reflected in his formulation of the seventh issue were important. He assessed damages under two heads, namely: (1) net diminution in the value of the claimants’ properties owing to the nuisance; and (2) damages for past nuisance. Under the first head, he assessed the damage sustained by Mr and Mrs Watson at £93,600 and that incurred by Mrs Wilson at £34,000. In respect of the second head, he assessed proper compensation for Mr and Mrs Watson at the rate of £2,000 pa and for Mrs Wilson at the rate of £750 pa. The respective awards worked out as £16,000 for the former and £6,000 for the latter. Thus, the total award of damages was £127,600 under head (1) and £22,000 under head (2), making a total award of £149,600. The defendant has not appealed against any part of these awards. It appears to me that if we dismiss the appeal of the defendant on issues (1) and (2), as described in [3] above, and allow that of the claimants on |page:60| issue (3), the quantum of damages awarded by the judge for diminution in value may have to be revisited.
Nuisance or no nuisance?
[23] I turn then to the appeal of the defendant in respect of issues (1) and (2) as described in [3] above. The judge’s consideration of the nature and character of the neighbourhood and the effect of the planning permissions of 1963 and 1998 and of the section 106 agreement is contained in [35] to [57] of his judgment. In [35] to [39], he recorded the submissions of counsel. The remaining paragraphs in this section contain the reasons for his conclusion.
[24] The judge started by setting out two principles of law that he described as “reasonably well settled”. They were that: (i) a planning authority (including a minister and an inspector) have no jurisdiction to authorise a nuisance, although they may have the power to permit a change in the character of a neighbourhood (see [41]); and (ii) the question of whether a permissive planning permission has changed the character of a neighbourhood so as to defeat what would otherwise constitute a claim in nuisance is one of fact and degree: see [47]. In support of the first proposition, he relied upon and quoted from the judgments of Cumming-Bruce LJ in Allen v Gulf Oil Refining Ltd [1980] QB 156, at p174G-H, of Buckley J in Gillingham Borough Council v Medway (Chatham Docks) Co Ltd [1993] QB 343, at p359, of all three members of the Court of Appeal in Wheeler v JJ Saunders Ltd [1996] Ch 19, at pp28A-H, 30C-D, 34G-H and 38B, of Pill LJ in Hunter v Canary Wharf Ltd [1997] AC 655, at p669A-B and the speech of Lord Cooke of Thorndon on appeal, at p722F-G. In support of the second proposition, he referred again to the judgment of Staughton and Peter Gibson LJJ in Wheeler, at pp30D-E and 35G and the speech of Lord Hoffmann in Hunter, at p710B-D.
[25] His conclusions in respect of the application of the second principle are set out in [52] to [55] in the following terms:
52. The 1963 consent permitted the use of the circuit for the purposes of racing; but neither the consent nor the actual limited use of the Circuit for the permitted purposes changed the essential rural character of the neighbourhood.
53. The 1981 application was to allow for the reversion of the airfield to agricultural use and the application was granted. In fact the permission was not implemented; but the permission did not change the character of neighbourhood, it reinforces the impression of its essentially rural character.
54. I accept that the 1998 decision was robust in the sense that it was based on a full and thorough Inquiry; and the Defendant may be right to say that there could not have been a better forum for a consideration as to what the nature and character of the area should be. However, I do not accept that there was a decision as to the nature and character of the area, which defeats the present claim. It is clear that the Inspector regarded the 1963 planning permission as providing the developer with a very wide consent; and the s106 Agreement as a protection against what he otherwise described in [43] of the Report as “the almost unrestricted rights which the operators now enjoy to operate the circuit”. The decision cannot properly be regarded as a strategic decision affected by considerations of public interest. The Inspector considered that some controls were better than none; and it was only to that extent that a public interest arose.
55. The Defendant is correct in saying that the noise from racing has occurred for forty years; but I do not accept that the character of the neighbourhood has been changed. From 1949 to 1994 the character and nature of the locality was essentially rural, but with the use of the former airfield for a limited number (no more than 20) of races each year. It is clear that the circuit could be, and was, run in a way that was consistent with its essentially rural nature. That essential character did not change, despite the gradual development of the Circuit with an intensification of the level of noise.
[26] In [56] and [57], the judge dealt with two specific submissions made to him. The first, made by reference to a passage in the speech of Lord Hoffmann in Hunter, was to the effect that the planning system may provide a better means of control on development than an action for private nuisance. This principle was rejected in its suggested application to the 1998 planning permission on the ground that that permission merely sought to control the otherwise largely unlimited permission granted in 1963. The second, as described by Simon J, was to the effect that it is wrong for a civil court to deal with the same issues as a planning inquiry and reach an inconsistent decision. The judge rejected this submission on the basis that it was inconsistent with the first principle that he had set out at the start of this section of his judgment, namely that the planning authority have no jurisdiction to authorise a nuisance.
[27] These conclusions are criticised by counsel for the defendant, but before considering those criticisms I should also refer to the judge’s conclusions on the second issue. In that connection, he noted that the common law of nuisance requires some degree of “give and take” so that a defendant that is using its land in a reasonable manner is not liable for any consequential harm to its neighbour arising from that reasonable use. He concluded, in [61], that:
In the light of the evidence I have heard as to the intensity, the frequency and duration of the noise (as well as the Defendant’s realistic concession) I am clear that the Defendant cannot establish the defence of reasonable user.
[28] The judge then considered what would be a reasonable use given that the claimants did not wish to preclude the normal racing activities of the defendant: see [17] above. The case for the defendant had been throughout that, on one basis or another, it should be permitted to do whatever the terms of the section 106 agreement allowed. In effect, this would have meant that reasonable user would permit some 110 N1 to N4 days.
Simon J recorded the submission of the claimants that reasonable user of the circuit for the core activities of the defendant would be 20 N1 to N4 days per year, but that they would accept compensation for another 20 such days. The judge’s conclusion, in [66], was:
It seems to me that, even adopting the Claimants’ approach, the threshold for which they contend is too low. In striking a proper balance between the respective legitimate interests of the parties, in the light of the past and present circumstances, it seems to me that it is appropriate to take a threshold figure of 40 N1N4 days.
[29] The submissions for the defendant on this appeal may be summarised as follows: (i) the judge was wrong in law in not concluding that the nature and character of the locality had been changed by the planning permissions of 1963 and 1998 and by the section 106 agreement; (ii) the correct test for resolving that question is whether: (a) there is some new and distinctive feature concerning the locality that has been effected by the planning consent under consideration; and, if so, (b) whether that feature was the product of a planning process that involved a fair and conclusive adjudication on matters of public interest in such a way as to restrict private right or is otherwise “strategic” in nature; and (iii) the judge’s conclusions as to what constituted reasonable user was perverse and insufficiently reasoned.
[30] Logically, the second submission should be considered first, notwithstanding that, in his oral argument, counsel for the defendant made it plain that it was very much a secondary argument. Counsel for the defendant emphasised the inconvenience that may result if the outcome of a statutory process, such as that which governs whether any particular development, should be permitted from a public perspective is to be revisited in a private law tort claim. He stressed that, in this case, both the permission of 1963 and that of 1998 had been granted after an exhaustive consideration of the consequences of the noise that would be generated by the developments for which permission was then being sought. He suggested that the consequence of those permissions was to introduce an element of noise that necessarily qualified the essentially rural character of the locality to the extent of the noise element so introduced. Given that that noise element was restricted by the terms of the section 106 agreement, that should be the benchmark for a consideration of both the nature and character of the locality and/or the standard of reasonable user.
[31] In support of that submission, counsel for the defendant relied upon certain dicta in Wheeler, at p30E, and Hunter, at p722E, in respect of the effect of those planning decisions that may properly be regarded as “strategic planning decision[s] affected by considerations of public interest”. It is suggested that, in such cases, the grant of planning permission of itself affects the private rights of the citizen to complain of a common law nuisance. |page:61|
[32] I would reject this submission for a number of reasons. First, it is well established that the grant of planning permission as such does not affect the private law rights of third parties. This was clearly stated by Cumming-Bruce LJ in Allen, at p174G-H, and has been consistently applied in all the subsequent cases, see per Buckley J in Gillingham Council, at p359, all three members of the Court of Appeal in Wheeler, at pp28A-H, 30C-D, 34G-H and 38B, Pill LJ in Hunter, at p669A-B, and the speech of Lord Cooke of Thorndon on appeal at p722F-G. Second, the implementation of that planning permission may so alter the nature and character of the locality as to shift the standard of reasonable user that governs the question of nuisance or not. This, too, is clearly recognised in the judgments of Staughton and Peter Gibson LJJ in Wheeler, at pp30D-E and 35G, and the speech of Lord Cooke of Thorndon in Hunter, at p722G.
[33] In the light of these two well-established principles, I find it hard to understand how there can be some middle category of planning permission that without implementation is capable of affecting private rights, unless such effect is specifically authorised by parliament. It has not been suggested to us that there is any section in the statutory code governing the application for and grant of planning permission that could have that result. For that reason alone, I would reject the second ground of appeal put forward by the defendant.
[34] In any event, even if there be some middle category such as that for which the defendant contends, neither of the grants of planning permission upon which the defendant relies can properly be described as “strategic”. The 1963 grant was specific to the part of the airfield to which it applied. It dealt with the issue of noise, but in a more confined context than what might reasonably be described as “strategic”. In the case of the 1998 grant, it is plain from the passages in the inspector’s report to which I have drawn attention that the purpose and effect of that grant was to introduce some restriction and control over the otherwise unrestricted activities authorised by the 1963 grant. In effect, it dealt with the unimplemented parts of the 1963 grant. It follows that, on the facts of this case, neither grant of permission can come within any such third category.
[35] I turn then to the first ground of the defendant’s appeal summarised in [29] above. The defendant submitted that the judge erred in law in failing to conclude that the nature and character of the locality had been changed by the grant of planning permission in 1963 and 1998 or by the terms of the section 106 agreement. The relevant change must have arisen from the implementation of those grants and that agreement, not their mere existence. However, the consideration of that implementation must be made in the context, as the claimants submit, that neither the tortious activities of a defendant (Dennis v Ministry of Defence [2003] EWHC 793 (QB)*) nor the intensification of a particular use (Wheeler) can change the essential character of the locality. These submissions were made to the judge and, apparently, accepted by him, although not expressly. They were not challenged on the hearing of this appeal. Nor did the defendant challenge the judge’s conclusion that whether there has been a change in the nature and character of the locality is a question of fact and degree.
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* Editor’s note: Reported at [2003] 2 EGLR 121
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[36] It follows, and counsel for the defendant accepted this in the course of his oral submissions, that the case for the defendant on its first ground is to the effect that the judge’s conclusion was plainly wrong or perverse. I would reject that submission. The judge had the benefit of a view, which we have not. He analysed the uses made of the circuit in the five periods to which I have referred in [16] above. He dealt with the first three periods in [55] of his judgment, which I have quoted in [25] above. Given the evidence to which he had earlier referred, and that I have summarised, his conclusion on those periods are plainly conclusions to which he was entitled to arrive. It is not suggested that the fourth period wrought the fundamental change upon which the defendant relies.
[37] So, this issue boils down to the question of whether the events and activities of the defendant in the fifth period could produce the change to the nature and character of the locality to the extent suggested by the defendant. The last sentence of [55] of the judge’s judgment is somewhat obscure. He stated that:
That essential [ie rural] character did not change, despite the gradual development of the Circuit with an intensification of the level of noise.
I am not sure if that was a reference to the fifth period or a recognition that the intensification of use from the fourth period in the fifth period, whether tortious or not, could not alter the nature or character of the locality. Either way, it does not justify this court interfering with the judgment of Simon J on the essential issue of fact and degree.
[38] So, I turn to the third submission for the defendant to the effect that the judge’s judgment when adopting the threshold of 40 N1 to N4 days as the standard of reasonable use is insufficiently reasoned. Counsel for the defendant submitted that no explanation was given for the threshold adopted or why the judge rejected the threshold of the section 106 agreement advanced by the defendant.
[39] I would reject this submission too. The arguments before the judge involved the two extremes of 20 N1 to N4 days advanced by the claimants and, in effect, 110 N1 to N4 days, as permitted by the section 106 agreement, for which the defendant contends. The judge would have had in mind that the objection was not to what was described as the core activities at the circuit that occurred on 45 to 50 days a year (see [33] of the judgment) as opposed to the other activities, namely vehicle-testing days and track days. No doubt, he could have picked a number of other points in the spectrum between the case for the claimants and that for the defendant. The point that he did select is plainly within the permissible range open to him. It was a matter for his judgment, not for any further reasoning.
[40] For all these reasons, I would dismiss the defendant’s appeal from the judge’s conclusions on issues (1) and (2). It follows that the appeal of the claimants must be approached on the basis of an established nuisance against a threshold of reasonable use of 40 N1 to N4 days per year. In those circumstances, what was the appropriate remedy?
Injunction or damages instead?
[41] Simon J dealt with this issue in [83] to [88] of his judgment. In [83] and [84], he summarised the arguments of the parties. In the case of the claimants, they were to the effect that if a nuisance is established it should be restrained because only in exceptional circumstances should they be deprived of their rights. They relied upon the well-known decision of the Court of Appeal in Shelfer v City of London Electric Lighting Co Ltd (No 1) [1895] 1 Ch 287 and later cases in which the principle was applied. The argument of the defendant was to the effect that the only proper standard was that struck by the section 106 agreement, so that there was no basis for the proper grant of an injunction.
[42] Simon J then referred to and quoted from the judgment of Mummery LJ in Regan v Paul Properties DPF No 1 Ltd [2006] EWCA Civ 1391; [2007] Ch 135*, in [35] to [37], as to the continuing effect of the decision in Shelfer. He quoted from the judgments of Sir Thomas Bingham MR and Millett LJ in Jaggard v Sawyer [1995] 1 WLR 269†, at pp278, 286 and 288. His conclusions were:
87. I am firmly of the view that this is not an appropriate case for granting an injunction. First, although falling short of giving rise to a defence of acquiescence, there has been considerable delay in bringing these proceedings. Secondly, the Claimants have shown that they are prepared to be compensated for noise on N1N4 days on more than 20 days, up to 40 days. Whilst a willingness to compromise should not count against a party, it seems to me that a willingness to accept compensation instead of an injunction constitutes a matter which counts against granting an injunction. Put in conventional terms, |page:62| it demonstrates that the Claimant can be compensated by the award of damages. For these reasons I decline to grant an injunction.
88. There is one further matter which in my judgment can properly be taken into account without disregarding the approach set out in the Shelfer case. The Circuit is a well-run business providing both employment locally and an opportunity for those who wish to race cars at speed, legally and in relative safety. The racing of cars at speed is plainly enjoyed by some people; and I suspect that part of the enjoyment comes from the loudness of the noise which comes from the racing, just as the loudness of music at outdoor venues may be the source of enjoyment for others. Although it was not investigated at trial, it is clear that there are a limited number of places where the range of activities carried out at the Circuit can take place. It seems to me that this is a legitimate matter to be taken into account when balancing the interests of the parties to this private dispute. However, as I have indicated, I have come to the conclusion that an injunction is not an appropriate remedy without taking these matters into account.
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* Editor’s note: Also reported at [2006] 3 EGLR 94
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† Editor’s note: Also reported at [1995] 1 EGLR 146
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[43] The judge’s conclusions are challenged by the claimants on two basic grounds. The first is that the judge failed to apply the proper test. The second is that the grounds that he gave are illogical and insufficient. The defendant disputes both contentions and submits that the judge’s conclusion was right even if some of his reasons were illogical. In my view, the claimants’ objections are well made.
[44] I start with the appropriate test. It is clearly established by the decision of the Court of Appeal in Shelfer that damages in lieu of an injunction should be awarded only under “very exceptional circumstances”. It also established that the circumstance that the wrongdoer is in some sense a public benefactor is not a sufficient reason for refusing an injunction.
[45] In Jaggard, Sir Thomas Bingham MR referred, at p278, to the Shelfer test as a good working rule but added, at p283:
that the test is one of oppression, and the court should not slide into application of a general balance of convenience test.
To the same effect was Millett LJ, at pp287 and 288.
[46] In Regan, Mummery LJ summarised, in [36], the relevant principles to be derived from Shelfer as:
(1) A claimant is prima facie entitled to an injunction against a person committing a wrongful act, such as continuing nuisance, which invades the claimant’s legal right. (2) The wrongdoer is not entitled to ask the court to sanction his wrongdoing by purchasing the claimant’s rights on payment of damages assessed by the court. (3) The court has jurisdiction to award damages instead of an injunction, even in cases of a continuing nuisance; but the jurisdiction does not mean that the court is “a tribunal for legalising wrongful acts” by a defendant, who is able and willing to pay damages: per Lindley LJ, at pp315 and 316. (4) The judicial discretion to award damages in lieu should pay attention to well settled principles and should not be exercised to deprive a claimant of his prima facie right “except under very exceptional circumstances.” (per Lindley LJ, at pp315 and 316). (5) Although it is not possible to specify all the circumstances relevant to the exercise of the discretion or to lay down rules for its exercise, the judgments indicated that it was relevant to consider the following factors: whether the injury to the claimant’s legal rights was small; whether the injury could be estimated in money; whether it could be adequately compensated by a small money payment; whether it would be oppressive to the defendant to grant an injunction; whether the claimant had shown that he only wanted money; whether the conduct of the claimant rendered it unjust to give him more than pecuniary relief; and whether there were any other circumstances which justified the refusal of an injunction: see AL Smith LJ, at pp322 and 323, and Lindley LJ, at p317.
[47] In reaching his conclusions, Simon J referred to the summary of Shelfer contained in the judgment of Mummery LJ in Regan. In addition, he referred to the judgments of Sir Thomas Bingham and Millett LJ in Jaggard, but not to those parts of them that equated the exceptional circumstances required by Shelfer to justify withholding an injunction to oppression of the defendant if an injunction is granted. The reasons given by the judge, in [87] of his judgment, are not related either to exceptional circumstances within the broad illustrations given by Mummery LJ in Regan or otherwise or to being oppressive of the defendant. I agree with counsel for the claimants that although, at an earlier stage, the judge recognised the limitations on his discretion to withhold an injunction when it came to exercising his discretion, he did not give effect to them.
[48] I also accept the criticism of counsel for the claimants that the second reason given by the judge in [87] of his judgment is illogical. The mere fact that a claimant may be prepared to accept monetary compensation up to a certain level of inconvenience does not mean that he is either willing or capable of being compensated with money for inconvenience suffered in excess of that level. For these two reasons, I accept that the judge’s conclusion is one with which this court is entitled to interfere; the remaining question is whether we should.
[49] Counsel for the defendant seeks to justify the judge’s conclusions with a raft of considerations that the judge did not mention. He relied upon the delay to which the judge referred and the expenditure incurred by the defendant in improving the circuit and minimising the effect of the noise it generates. He submitted that the court should have regard to the public interest to which the judge referred in [88] of his judgment, the facts that the evidence established that there is nowhere else in the North East where the defendant’s activities can be carried on and that those activities are subject to the control of the local planning authority in accordance with the section 106 agreement.
[50] Counsel for the claimants dealt with these points seriatim in his written argument in reply. For the most part, I accept his observations. At the core of them is the basic position of the claimants, as recorded by Simon J in [33] of his judgment, to the effect that the claimants do not seek to prevent the defendant’s core activities. Most of the expenditure on the circuit upon which the defendant relies is directed to those activities, as the judge recognised in [80] of his judgment. The fact that some of the expenditure was on unsuccessful measures to avoid a nuisance can hardly support a case for refusing an injunction. The judge must have concluded that the defendant’s core activities could be carried out within the limit of the 40 N1 to N4 days that he considered as being the threshold for the alleged nuisance. Since the section 106 agreement allowed many more, by definition, it could not be the appropriate restriction of the defendant’s activities.
[51] There remains the public interest element to which the judge referred in [88]. In a marginal case in which the damage to the claimant is minimal, I can accept that, consistent with the principles of Shelfer, the effect upon the public of the grant of an injunction is properly to be taken into account. However, the fact that the public benefit might be relevant in those circumstances does not mean that its existence can alone negate the requirement of exceptional circumstances or oppression of the defendant that both Shelfer and Jaggard clearly require. There was no evidence or finding of the judge as to the effect on the public interest of a restriction on the defendant’s use of its circuit to its core activities. However, even if there were, I am unable to see how this could be regarded as a marginal case so as to let in consideration of the public interest.
[52] The judge did not weigh his conclusion on whether to withhold an injunction with his later findings in respect of the diminution in the value of the claimants’ properties consequential on the nuisance he found. Given the scale of his award of damages, the injury to the claimants’ rights can hardly be described as small. Nor are any of the other illustrative circumstances referred to by Mummery LJ in [36(5)] of his judgment in Regan present in this case.
[53] In summary, this case appears to me to be one of substantial injury to the claimants in their enjoyment of their properties. The grant of an appropriate injunction so as to restrict the defendant to its core activities would not be oppressive of it. Nothing occurred in the period of delay to which the judge referred, namely March 2003 to February 2005, to render the grant of an injunction unconscionable; in particular, the expenditure of the defendant was directed to its core activities, not just those of vehicle testing or track days to which the claimants objected.
[54] For these reasons, I conclude that Simon J was wrong not to have granted an injunction to the claimants restricting the defendant’s use of its circuit to 40 N1 to N4 days per year. I would allow the claimants’ appeal and grant such an injunction. |page:63|
Summary of conclusions
[55] For all these reasons, I would:
(1) dismiss the appeal of the defendant;
(2) allow the appeal of the claimants; and
(3) vary the order of Simon J so as to include an injunction on the lines of that described in [54] above.
For the reasons given in [22] above, if the other members of the court agree with my conclusions, I would invite counsel for the parties to consider and, if possible, agree on the extent to which the judge’s award of damages needs to be varied to take account of the grant of the injunction to which I have referred.
Richards LJ said:
[56] I agree.
Hallett LJ said:
[57] I also agree.
Claimants’ appeal allowed; defendant’s appeal dismissed.
