Coventry & Ors v Lawrence & Anor [2014] UKSC 13

Homeowners near a motor sports stadium and motocross track in Suffolk sued for nuisance by noise. The Supreme Court allowed their appeal, restoring the trial judge’s injunction, and clarified key principles on prescription, planning permission, locality and remedies in private nuisance.

Facts

The appellants, Katherine Lawrence and Raymond Shields, purchased a bungalow known as ‘Fenland’ in rural Suffolk in January 2006. Approximately 560 metres away stood a stadium used for speedway, stock car and banger racing since the 1970s and 1980s, and about 860 metres away lay a motocross track constructed in 1992. Various planning permissions (some personal), a Certificate of Lawfulness of Existing Use or Development (CLEUD) issued in 1997, and noise abatement notices formed the regulatory background. The appellants complained of noise nuisance and, following the completion of attenuation works in January 2009, continued to pursue proceedings for an injunction against the operators and owners of the stadium and track (the respondents).

The trial judge, HHJ Seymour QC, found that the activities constituted a nuisance and granted an injunction limiting noise levels. The Court of Appeal reversed him, holding that the actual use of the stadium and track, carried on under planning permissions, had to be taken into account in assessing the character of the locality. The appellants appealed to the Supreme Court.

Issues

Lord Neuberger identified five issues:

• Whether a defendant can acquire a prescriptive right to commit what would otherwise be a nuisance by noise;
• Whether a defendant may rely on the fact that the claimant ‘came to the nuisance’;
• Whether a defendant’s own activities (alleged to be a nuisance) can be relied on when assessing the character of the locality;
• The extent to which the grant of planning permission affects whether an activity constitutes a nuisance or alters the character of the locality;
• The correct approach to remedies, particularly whether damages should be awarded in lieu of an injunction, and the relevance of planning permission.

Arguments

The respondents contended that their long-standing activities, carried on under planning permissions and a CLEUD, had become part of the character of the locality, that they had acquired a prescriptive right to emit the noise, and that in any event damages in lieu of an injunction should have been considered. The appellants argued that the judge had rightly disregarded activities that constituted the very nuisance complained of, that no prescriptive right had been established (particularly given gaps in use), and that the injunction should be restored.

Judgment

Prescriptive right

The Supreme Court held that a right to emit noise which would otherwise constitute a nuisance is capable of being an easement, and can in principle be acquired by prescription. However, time only runs for prescription while the activity amounts to an actionable nuisance, so that the servient owner has the opportunity to object. On the facts, the respondents could not show 20 years of continuous nuisance-level activity, and their prescription claim therefore failed.

Coming to the nuisance

The Court reaffirmed the long-established principle that it is no defence that the claimant ‘came to the nuisance’ where the claimant uses her property for essentially the same purpose as her predecessors. Lord Neuberger acknowledged, however, that where a claimant changes the use of or builds on her land, and this alteration is what causes a pre-existing lawful activity to become a nuisance, different considerations may apply.

Character of the locality

The Court held that a defendant’s activities can form part of the character of the locality only to the extent they do not themselves constitute the nuisance complained of. To include the very activities alleged to be a nuisance would allow the defendant to rely on his own wrong. The Court of Appeal had erred in reversing the judge on this basis.

Planning permission

The mere grant of planning permission does not authorise a nuisance nor, save in exceptional cases, alter the character of the locality so as to defeat a nuisance claim. The Court disapproved the broad approach in Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343 to the extent it suggested a planning permission could of itself change the character of a locality and defeat a nuisance claim without compensation. Lord Neuberger endorsed Carnwath LJ’s statement in Barr v Biffa Waste Services Ltd [2013] QB 455 that:

“The common law of nuisance has co-existed with statutory controls, albeit less sophisticated, since the 19th century. There is no principle that the common law should ‘march with’ a statutory scheme covering similar subject matter. Short of express or implied statutory authority to commit a nuisance…, there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights.”

The terms of a permission may, however, provide some evidential value, particularly as a possible starting point on questions such as acceptable hours or noise levels.

Remedies

The Court signalled an important shift away from a rigid application of the four tests in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287. Lord Neuberger stated that mechanical application of A L Smith LJ’s tests and the requirement of ‘very exceptional circumstances’ before awarding damages in lieu were ‘simply wrong in principle’. The prima facie remedy remains an injunction, with the burden on the defendant to justify damages instead, but the court has a broad discretion, taking into account public interest factors including, potentially, the existence of a planning permission. Lord Sumption went further, describing Shelfer as ‘out of date’ and suggesting damages will often be an adequate remedy, particularly where planning permission has been granted. Lord Mance and Lord Carnwath were more cautious, emphasising the value of the right to enjoy one’s home undisturbed.

Disposition on the facts

The judge had erred in disregarding the planning permissions entirely, but this did not undermine his overall conclusion of nuisance. The respondents’ prescription defence failed on the evidence. As they had not asked the trial judge to award damages in lieu, they were refused permission to raise that argument on appeal, but were given liberty to apply to the trial judge under the existing order. The appeal was allowed and the judge’s injunction restored.

Implications

The decision provides authoritative modern guidance on several key aspects of the law of private nuisance:

• It confirms that a right to emit noise can, in principle, be acquired by prescription, provided the activity has amounted to an actionable nuisance for 20 years.
• It reaffirms that ‘coming to the nuisance’ is generally no defence, though leaves open a qualification where the claimant has changed the use of her land.
• It clarifies that a defendant cannot rely on his own nuisance-causing activities as part of the character of the locality.
• It significantly restricts the role of planning permission in nuisance claims. Save in exceptional ‘strategic’ cases, planning permission is not a defence and cannot deprive a neighbour of a common law right to complain of nuisance without compensation.
• It marks a decisive move away from the rigid Shelfer approach to remedies, recognising a broader discretion to award damages in lieu of an injunction, including where public interest considerations arise.

The judgment is of considerable importance to practitioners advising landowners, developers, operators of noisy activities and local planning authorities. It rebalances the relationship between planning law and private nuisance, reinforcing the protection of private property rights, while giving courts greater flexibility in fashioning appropriate remedies. Several points, notably the precise principles for damages in lieu and whether gain-based damages are available in nuisance, were expressly left open for future development on a case-by-case basis.

Verdict: Appeal allowed. The order of HHJ Seymour QC, including the injunction restricting noise from the stadium and track, was restored, with the respondents given liberty to apply to the trial judge for the injunction to be discharged and damages awarded in lieu under the existing permission to apply provision.

Source: Coventry & Ors v Lawrence & Anor [2014] UKSC 13

See also: Coventry v Lawrence (No 2) [2014] UKSC 46 (23 July 2014)