Land – Leasehold interest – Claimants alleging noise nuisance from race track – 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 being appropriate – Claim allowed in part
The defendant company was the leaseholder of land that was used as a motor circuit. The claimants occupied homes approximately 300m from the circuit and brought an action for nuisance in respect of the noise emanating from it.
The claimants contended that the defendant had wrongfully caused or permitted excessive noise of a loud, intrusive and repetitive nature since March 2000. The circuit was operated for around 190-200 days a year. On approximately 140 of those days, racing took place that produced high levels of noise constituting a nuisance throughout the day. The noise levels exceeded what was reasonable by a considerable margin. The claimants said that that activity severely limited the enjoyment of their homes. They sought injunctive relief to restrict such use as well as damages.
The defendant accepted that there were high levels of noise but contended that the claimants had no claim for damages or an injunction since the noise from the race track was what was to be expected in a locality whose nature and character had been 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 an elaborate set of monitored restrictions that benefited all who might otherwise be affected by the unconfined use of the circuit. A planning inspector considered that to be an appropriate balance between the competing interests of those affected by racing at the circuit, including the claimants and the defendant.
Issues arose as to the nature and character of the neighbourhood relevant for assessing the question of nuisance; whether the claimants had acquiesced in the infringement of their common law rights so that it would be unconscionable for them to be granted the relief sought; and, if not, whether the case was suitable for an injunction or should be limited to a claim for damages.
Held: The claim was allowed in part.
A planning authority, including a minister and an inspector, had no jurisdiction to authorise a nuisance, although it might have the power to permit a change in the character of a neighbourhood. Whether a permissive planning permission had changed the character of a neighbourhood so as to defeat what would otherwise constitute a claim in nuisance, was a question of fact and degree. It was more likely that a change in character could be identified where a strategic planning decision was affected by considerations of public interest.
In the instant case, it was clear that the circuit had been run consistently with its rural nature. That essential character had not changed despite the gradual development of the circuit with an intensification of the noise levels. In the light of the evidence as to the intensity, frequency and duration of the noise, the defendant could not establish the defence of reasonable user: Wheeler v JJ Saunders Ltd [1996] Ch 19 and Hunter v Canary Wharf Ltd [1997] AC 655 considered; Allen v Gulf Oil Refining Ltd [1980] QB 156 applied.
Acquiescence was an equitable doctrine under which equitable relief, by way of injunction or equitable damages, would be barred on the ground of delay coupled with matters that made it unconscionable for a party to continue to enforce its rights. In this case, there had been neither conduct nor inactivity by the claimants such that it would be unconscionable for them to continue to pursue their equitable claims: Gafford v Graham Ltd ([1999] 3 EGLR 75; [1999] 41 EG 159 applied.
This was not an appropriate case for granting an injunction. Although a willingness to compromise should not count against a party, a willingness to accept compensation instead of an injunction, as the claimants had indicated in this case, was a matter that counted against granting an injunction. It demonstrated that the claimants could be compensated by an award of damages: Regan v Paul Properties DPF No 1 Ltd [2006] EWCA Civ 1391; [2006] 3 EGLR 94; [2006] 46 EG 210 considered.
David Hart QC and Jeremy Hyam (instructed by Richard Buxton, of Cambridge) appeared for the claimants; Gordon Wignall (instructed by Cobbetts LLP, of Leeds) appeared for the defendant.
Eileen O’Grady, barrister
