Land – Leasehold interest – Claimants alleging noise nuisance from racetrack – Defendant claiming noise levels reasonable – Whether nature and character of neighbourhood changing following planning permissions – Whether claimants acquiescing in infringement of rights – Whether injunctive relief appropriate – High Court holding activities constituting actionable nuisance but not appropriate case to grant injunction — Appeal court dismissing defendant’s appeal and allowing claimants’ appeal
The defendant company was the leaseholder of land that it used as a racing circuit. The claimants, whose homes were approximately 300m from the track, brought an action for nuisance in respect of noise.
They contended that, since March 2000, the defendant had wrongfully caused or permitted excessive noise of a loud, intrusive and repetitive nature. The circuit was used on around 190-200 days per year, on approximately 140 of which the racing produced high levels of noise constituting a nuisance throughout the day. The noise levels substantially exceeded what was considered to be reasonable. The claimants argued that that activity severely limited the enjoyment of their homes and they sought an injunction to restrict such use and to be paid damages.
The defendant accepted that the racing produced high levels of noise but contended that the claimants had no claim since the noise from the racetrack was what was to be expected in a locality whose nature and character was established, in 1963 and 1998, by the grant of planning permissions. By a unilateral agreement made under section 106 of the Town and Country Planning Act 1990, which constituted an enforceable planning obligation, the defendant had agreed to a number of monitored restrictions that would benefit all who might otherwise be affected by the unconfined use of the circuit.
Simon J concluded, inter alia, that the defendant’s activities constituted an actionable nuisance but that it was not appropriate to grant an injunction. The claimants received £149,000 in damages as compensation for the diminution in value of their properties and for loss of amenity: [2008] EWHC 759 (QB); [2008] PLSCS 118.
Both parties appealed. The defendant contended, inter alia, that the judge had been wrong in law not to conclude that the nature and character of the locality had changed. The 1963 and 1998 planning permissions granted had introduced an element of noise, which necessarily qualified to some extent the essentially rural nature of the locality. Those permissions were strategic planning decisions affected by considerations of public interest. In such cases, the grant of permission of itself affected the private rights of citizens to complain of a common law nuisance.
Held: The defendant’s appeal was dismissed; the claimants’ appeal was allowed.
In the instant case, it could not be said that the grant of planning permission of itself affected the private rights of individuals to complain of a common law nuisance. It was well established that the grant of planning permission as such did not affect the private law rights of third parties. Further, the implementation of that planning permission could so alter the nature and character of the locality as to shift the standard of reasonable user that governed the question of nuisance. In the light of those principles, it was difficult to understand how there could be some middle category of planning permission that, without implementation, could affect private rights without the specific authorisation of parliament. In any event, even if there were such a third category, neither grant of permission could come within it: Wheeler v JJ Saunders Ltd [1996] Ch 19 and Hunter v Canary Wharf Ltd [1997] AC 655; and Allen v Gulf Oil Refining Ltd [1980] 1 QB 156 considered.
The question as to whether there had been a change in the nature and character of the locality was a question of fact and degree and, on the evidence, it could not be said that the judge’s conclusion was so plainly wrong or perverse as to justify any interference with his decision.
However, he had failed to weigh his conclusion on whether to withhold an injunction with his later findings in relation to the diminution of the value of the claimants’ properties consequential on his finding of nuisance. Given the scale of his award of damages, the case appeared to be one of substantial injury to the claimants’ enjoyment of their properties. The grant of an appropriate injunction in order to restrict the defendant in its core activities would not be oppressive: Shelfer v City Of London Electric Lighting Co Ltd (No 1) [1895] 1 Ch 287 and Regan v Paul Properties Ltd [2006] EWCA Civ 1391; [2006] 3 EGLR 94; [2006] 46 EG 210 considered.
David Hart QC and Jeremy Hyam (instructed by Richard Buxton Environmental & Public Law) appeared for the claimants; Richard Jones QC and Gordon Wignall (instructed by Cobbetts LLP) appeared for the defendant.
Eileen O’Grady, barrister
