JUNE 2014
  • Planning Permission for an Activity Creating a Nuisance

    Stephen Todd
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We all know that a defendant cannot avoid liability in nuisance by claiming that the plaintiff chose to acquire or build on the land knowing that it was subject to the interference constituting the nuisance. As the point is usually expressed, coming to the nuisance is no defence. Again, it cannot be said that an activity causing a nuisance is statutorily authorised if it only began following the grant of planning or resource consent, even if the use of that consent means that a nuisance is inevitable or highly likely. Rather, in such a case, the question whether a nuisance exists must be determined on ordinary bases, balancing the interest of one occupier in using land as he or she thinks fit with a neighbour’s interest in the quiet enjoyment of his or her property. The interference is actionable only if it is “unreasonable”, in the sense that it exceeds what an ordinary person in the plaintiff’s position can reasonably be expected to tolerate. In making this judgment, the court takes into account the character of the neighbourhood, which may change over time in a way which leads to a reduction in the level of freedom from interference which the plaintiff can reasonably expect. If a nuisance is established, the plaintiff usually is seen as prima facieentitled to an injunction to restrain the interference, but the court has power to award damages in lieu of such injunction. 5

The application of all the above propositions was in issue before the UK Supreme Court in its recent decision in Lawrence v Fen Tigers Ltd. In 1975, an owner of land, acting pursuant to planning permission, constructed a stadium to be used for motor sports. In 1992, he obtained temporary planning permission to use adjoining agricultural land as a motocross track, and in 2002, following several temporary renewals, he was granted permanent permission. The conditions attached to the permissions limited the frequency and times of activities at the stadium and track, but not the level of noise. In 2006, the claimants bought a house nearby, and shortly thereafter complained about the noise. The local planning authority served abatement notices on the organisers of events at the stadium and the lessee of the track, causing work to be done to reduce the noise. However, the claimants alleged that the noise remained unacceptable and issued proceedings in nuisance against, inter alia, the owners, the organisers and the lessee. The trial judge upheld the claims and ordered injunctive relief, but the Court of Appeal allowed appeals by the organisers and the lessee, on the basis that the noise of motor sports had become an established part of the character of the neighbourhood and so the nuisance claim fell to be dismissed. The claimants appealed to the Supreme Court, which allowed the appeals and restored the order of the trial judge.

The leading judgment was delivered by Lord Neuberger of Abbotsbury. His Lordship held first, contrary to the view expressed in a leading text, that an easement to commit a nuisance by noise could be acquired over 20 years by prescription. Problems in showing consent or acquiescence by the owner of the servient tenement and in identifying the extent of the easement were largely practical in nature. They might present the owner of the alleged dominant land with difficulties in making out his case, but that was no reason for holding that he should not be entitled to on appropriate facts. The precise extent of the right would be fact sensitive, and the servient owner would have cause for complaint if he could show a greater amount of injury arising from an increase in the level or frequency of noise. On the facts, however, the noise from the defendants’ activities had not caused a nuisance to the claimants’ land for sufficient period to establish a right by prescription.

Lord Neuberger then turned to the question of “coming to the nuisance”. He recognised that the law was clear, at least in a case such as that before the court: where the claimant used her property for essentially the same purpose as that for which it had been used by her predecessors since before the alleged nuisance started, the defence of coming to the nuisance had to fail. This was consistent with the fact that nuisance was a property-based tort, so that the right to allege a nuisance should, as it were, run with the land. But there was much more room for argument that a claimant who changed the use of her property after the defendant had started the activity alleged to cause a nuisance should not have the same rights to complain. That raised the question whether the alteration could give rise to a claim if the activity would not have been a nuisance had the alteration not occurred. It might well be that it should normally be resolved by treating any pre-existing activity as part of the character of the neighbourhood. So it might be wrong to hold that the activity constituted a nuisance, provided that it only affected the senses of those on the claimant’s land, it was not a nuisance beforehand, it was otherwise a reasonable and lawful use of the land carried out in a reasonable way, and it caused no greater nuisance than when the claimant first changed the use of the land. This possible qualification did not apply in the instant circumstances, as the claimants always used their property as a residence.

Next, Lord Neuberger focussed on reliance on the defendant’s own activities in defending a nuisance claim. This brought into consideration an assessment of the character of the locality or, if the concept was thought too monolithic, the “established pattern of uses” in the locality. His Lordship accepted that one started with the proposition that the defendant’s activities were relevant when assessing this question, but to the extent that they were a nuisance to the claimant they should be left out of account, or to put it another way, they should be notionally stripped out of the locality when assessing its character. Otherwise, the defendants would be invoking their own wrong against the claimants in order to justify their continuing to commit that very wrong. But the position would be different if the defendant could show a prescriptive right to create the nuisance, or if the activities had been held to be a nuisance but the court had sanctioned them by refusing an injunction and awarding damages instead. If the activities could not be carried out without creating a nuisance, they would have to be entirely discounted when assessing the character of the neighbourhood.

This brought his Lordship to consider the effect of planning permission on an allegation of nuisance. What weight should be given to the fact that planning permission had been granted for the very activities which the claimant contended gave rise to a nuisance by noise? The implementation of a planning permission could give rise to a change in the character of the locality, but for the most part this was no different from any other change of use which did not require permission. Thus, if implementation of the permission resulted in the creation of a nuisance to the claimant, then it could not be aid that the implementation had led to a change in the character of the locality (save in the ways already explained). But this conclusion was subject to the extent, if any, to which the defendant could rely on the fact that the grant or its terms and conditions permitted the very noise or other disturbance which was alleged by the claimant to constitute the nuisance. The grant of permission for a particular development did not mean that the development was lawful. All it meant was that a bar to the use imposed by planning law in the public interest had been removed. It would be wrong in principle that a planning authority should be able to deprive a property owner of a right to object to what would otherwise be a nuisance without providing compensation. So his Lordship was satisfied that the mere fact that an activity had the benefit of planning permission was normally of no assistance to the defendant in a nuisance claim alleging loss of amenity. A planning authority had to balance various competing interests in the overall public interest, bearing in mind relevant planning guidelines. Some of the factors, such as many political and economic considerations, would play no part in the assessment of whether a particular activity constituted a nuisance. And a planning authority would be entitled to assume that a neighbour could enforce private rights in a nuisance action; it could not be expected to take on itself the role of deciding a neighbour’s common law rights. However, there would be occasions when the terms of a planning permission could be of some relevance. So the fact that the planning authority took the view that a noisy activity was acceptable at certain times or at a certain level might be of real value, at least as a starting point. While the decision whether the activity caused a nuisance was not for the authority but for the court, the existence and terms of the permission were not irrelevant as a matter of law. In many cases, they would be of little or no value, in others rather more.

Applying these principles, Lord Neuberger determined that the trial judge’s conclusion, that nuisance was made out, ought to be restored. The concern was over the level of noise, which was not a matter specifically covered by the planning permissions. Their grant was not normally a matter of much weight, and this was not an exceptional case. The evidence showed that it was not an easy decision whether to grant the permissions, as was demonstrated by the planning officers’ cautious approach. There was a wealth of evidence put before the judge, all of which he took into account.

Finally, there was the issue of the award of damages instead of an injunction. Lord Neuberger recognised that prima faciea claimant who had established a nuisance was entitled to an injunction to restrain the conduct in the future. However, the court had power to award damages instead, their quantum being conventionally based on the reduction in the value of the claimant’s property as a result of the continuation of the nuisance. AL Smith LJ in Shelfer v City of London Electric Lighting Co had maintained as “a good working rule” that damages might be given if the injury was small, was capable of being estimated in money and could be adequately compensated by a small money payment, and the case was one in which it would be oppressive to grant an injunction. Some recent cases11 made an almost mechanical application of AL Smith LJ’s four tests and required very exceptional circumstances for damages to be awarded in lieu of an injunction. However, his Lordship thought that the approach to be adopted should be much more flexible. The court’s power involved a classic exercise of discretion which should not be fettered in the way suggested. The prima facieposition was that an injunction should be granted, so the legal burden was on the defendant to show why it should not. Subject to that, there should be no inclination either way and the outcome should depend on all the evidence and arguments.

A particular question for the court to consider in deciding on a remedy was the public interest. Lord Neuberger found it hard to see how there could be any circumstances in which the question arose where it could not, as a matter of law, be a relevant factor. So the fact that a defendant’s business might have to shut down if an injunction was granted should obviously be a relevant fact, and it was hard to see why relevance should not extend to the fact that a number of the defendant’s employees would lose their livelihood or, conversely, that other neighbours were badly affected by the nuisance. The grant of planning permission also was relevant and could provide strong support for the contention that the activity was of benefit to the public. This factor would have real force in cases where it was clear that the planning authority had been reasonably and fairly influenced by the public benefit of the activity, and where the activity could not be carried out without causing the nuisance. But even in such cases, the court would still have to weigh all the competing factors. Sometimes, the court might be impressed by a defendant’s argument that an injunction would involve a waste of resources on account of what might be a single claimant, or that the financial implications of an injunction for the defendant would be disproportionate to the damage done to the claimant if she was left to her claim in damages. In such cases, an injunction might well not be the appropriate remedy.

The trial judge had not been asked to award damages rather than an injunction, and accordingly he did not address the issue. In the result all members of the court agreed that the Judge’s order for injunctive relief should be restored. It was varied in one respect, however, by giving the defendants liberty to apply to have the order discharged and damages awarded in lieu.

Their Lordships’ decision can be seen to have ranged over a number of significant issues. Let us consider some key points. First, while the fact that a plaintiff has “come to the nuisance” is not a defence, the court expressed the opinion that the position may be different if he or she changes the use or uses of the land. The reason for this difference is obscure. If the right to allege a nuisance is property based, as stated by Lord Neuberger, why should plaintiffs not be able to fully protect the right to change or develop their property as they wish and defendants be able to avoid paying compensation for their interference with a new use? If, say, a plaintiff’s land is used for agricultural purposes, so at that time the plaintiff has no basis for complaining about sensory matters, and then is developed for residential building, the defendant seemingly may now have acquired an immunity from liability for an interference which otherwise would constitute a clear nuisance. This suggested qualification to the old rule is the more unacceptable in light of the changed approach towards the granting of an injunction, about which more below.

Second, the approach to the question whether a nuisance exists perhaps is open to criticism for appearing to treat the character of the neighbourhood as a decisive factor, so if the activity fits the locality then it follows that there cannot be a nuisance. It might be preferable to treat the character of the area simply as providing the context for deciding the orthodox inquiry into whether the interference was substantial and unreasonable, taking into account the need for give and take between neighbours. But maybe their Lordships did not intend to suggest any more than this. As for any grant of planning permission, we certainly can agree that it should be of little relevance. In Lord Sumption’s view, it may at best provide some evidence of the reasonableness of the particular use of the land in question.

Third, we come to the critical question of the appropriate remedy where a nuisance is made out. Their Lordships have made a major change by effectively bypassing Shelfer, by affirming that the court’s discretion in determining whether to give damages or grant an injunction is flexible and unfettered, and by emphasising that the “public interest” should be taken into account in the exercise by the court of its discretion. Indeed, Lord Sumption (with Lord Clarke agreeing) favoured a more radical approach to the question of remedy. His Lordship considered that Shelfer was out of date and that it was unfortunate that it had been followed so recently and so slavishly. It was devised for a time in which England was much less crowded, when comparatively few people owned property, when conservation was only beginning to be a public issue, and when there was no general system of statutory development control. The whole jurisprudence in this area needed to be reviewed, and there was much to be said for the view that damages were ordinarily an adequate remedy for nuisance and that an injunction should not usually be granted in a case where it was likely that conflicting interests were engaged other than the parties’ interests. In particular, it might well be that an injunction should as a matter of principle not be granted in a case where a use of land to which objection was taken had received planning permission. But Lord Mance considered that the right to enjoy one’s home without disturbance was one which many, indeed most, people valued for reasons largely if not entirely independent of money. He saw Lord Sumption’s views as putting the significance of planning permission and public benefit too high and preferred Lord Neuberger’s nuanced approach.

Lord Sumption’s approach would effectively invert the position under Shelfer, by making damages the normal remedy and an injunction the exception. Lord Mance’s reminder of the value placed by most people on the ease and comfort of their home is timely.

A commentator on recent developments has said that the continued strength of private nuisance in a regulatory state probably depends on a more flexible approach to remedies. It is difficult to disagree. It is true that a problem with Lord Neuberger’s judgment, let alone that of Lord Sumption, is the evident difficulty in determining what the public interest requires. How should a landowner’s interest in the undisturbed enjoyment of his or her land be balanced against the interest of others in watching motor races or the interest of stadium employees in keeping their jobs? Perhaps all one can say, somewhat unsatisfactorily, is that the judge must do his or her best in the light of the evidence presented. The abandonment of Shelferwill at least encourage the parties to adduce all relevant evidence bearing upon the financial implications of granting or denying an injunction.