Monday, 10 March 2014

The Supreme Court set an important precedent in regards to Noise Nuisance

Dani Fiumicelli 
Technical Director

If you move into an area with an activity that could be considered a nuisance, should the nuisance be allowed to continue? This is a question that often arises but the Supreme Court has now given an answer.

COVENTRY & ORS v LAWRENCE & ANOR (2014) [2014] UKSC 13

This case involved claims of noise nuisance from motor sport activities. In 2006 the appellant (Lawrence) had moved to a bungalow near a stadium, constructed in 1976, where speedway and stock-car racing had taken place and where a motocross track operated at the rear of the stadium. Planning permissions covering the speedway racing and motocross activities had been granted, while a certificate of lawful use covered the stock-car racing. At the High Court the judge heard competing evidence from noise experts for both parties, the stadium’s expert preferring to compare the motorsport noise to fixed benchmark criteria, and the complainant’s expert favouring the comparison of the motor sport noise to the existing noise climate. The High Court judge gave considerable weight to the subjective evidence from the complainants and decided that the noise coming from the stadium and track amounted to a nuisance. But the judge's finding was reversed at the Court of Appeal. This caused the following issues to be presented to the Supreme Court for decision:
  1. Did the fact that the stadium and motocross had operated for a relatively long time give them a prescriptive right to cause noise nuisance? 
  2. Did the operators of the stadium and motocross have a defence to say they were there first i.e. the complainants had "come to the nuisance" ? 
  3. Should the use of the premises for stock car racing, speedway and motocross be taken into account when assessing the character of the locality as part of the appraisal of nuisance? 
  4. Could the grant of planning permission affect the question of whether the permitted use was a nuisance? 
  5. What was the approach to be adopted by a court when deciding whether to grant an injunction to restrain a nuisance or whether to award damages instead?

The Supreme Court decided that:

  1. It was possible to obtain by prescription a right to commit a noise nuisance, but in this case the necessary test to establish that right had not been satisfied. Because it was not enough to show that the activity which created the noise had been carried on for 20 years. It was not even enough to show that the activity had created a noise for 20 years. What had to be established was that the activity had created a nuisance over 20 years.
  2. It was no defence to argue that the complainant came to the nuisance. Although it might well be a defence, at least in some circumstances, for a defendant to argue that, as it was only because the complainant had changed the use of, or built on, his land that the defendant's pre-existing activity was claimed to have become a nuisance, the claim should fail. 
  3.  A defendant, faced with a claim that his activities gave rise to a nuisance, could rely on those activities as constituting part of the character of the locality, but only to the extent that they did not constitute a nuisance. Similarly, any other activity in the neighbourhood could properly be taken into account when assessing the character of the neighbourhood, to the extent that it did not give rise to an actionable nuisance or was otherwise unlawful. 
  4. The existence of planning permission would normally be of no defence to  a claim of nuisance . Among other things, it was wrong in principle that, through the grant of a planning permission, 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 him with compensation, when there was no provision in the planning legislation which suggested such a possibility.
  5. The court's power to award damages in lieu of an injunction involved a classic exercise of discretion, which should not, as a matter of principle, be fettered, although the prima facie position was that an injunction should be granted. 

The Supreme Court’s decision reinforces and clarifies some important principles in regard to the legal notion of nuisance; not least of which is that the often criticised variable (even erratic) nature of the concept lends it to being flexible enough to cover a far wider range of scenarios that could ever be sensibly prescribed by a more doctrinaire legal mechanism.

The full judgement can  be seen at:

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