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When does noise become a nuisance?

About The Author

Former Author (Assistant Editor)

Author is a King's College London Law graduate, currently working as a corporate paralegal for a firm based in South West England. Author is due to begin his BPTC at the University of Law in September 2015, having attained a scholarship from Middle Temple.

The tort of nuisance generally protects the property interests of individuals and had laid largely dormant and settled since the middle of the 20th century. Decisions in the last few decades have gradually restricted the scope of the tort but a decision in January has seemingly reversed this retrenchment. The litigation over private nuisance can be boiled down to a conflict between the competing interests of neighbours and it is the court’s task to decide who should succeed. The decision by the Supreme Court in Coventry v Lawrence has arguably shifted the balance to give a greater chance of success to the aggrieved neighbour rather than the one causing the so-called nuisance.

The tort is often seen as more than merely protecting individual rights and has previously been an important tool for the protection of the environment. In the late 19th century case of Attorney General v Birmingham (1858) 70 E.R. 220, the tort of nuisance was used to try to prevent the Birmingham Council from dumping waste directly into the river system which was having severe impacts upon the estate of Mr Adderley, a wealthy aristocrat. At the time there was very little environmental regulation and therefore the tort was employed to attempt to force the city to invest in adequate sewer facilities to deal with the problem. This sort of ‘public interest’ nuisance claim has a much less important role nowadays because of the extensive reach of environmental regulation. The UK now has separate regimes for pollution control, waste management, habitat conservation and many other environmental concerns and it was thought that in light of this private nuisance would have a much smaller role. The tort was seen until the decision in Coventry to also have been reduced because of the more extensive nature of the planning regime in England and Wales, which ensures a wide range of conditions and controls on the use of land. The question for the court is how to reconcile the regulatory regimes with individual property rights.

The general rules of private nuisance

The law of private nuisance is engaged when there are disputes between neighbours that go beyond the level of reasonably expected behaviour. There have been many famous cases over the years that have dealt with what behaviour can amount to a nuisance, which have refined the tests that the court will employ. The two requirements for a claim in nuisance are that the aggrieved party must have title to sue and that the nuisance must interfere with the reasonable use of the property of the aggrieved.

There is some confusion over what exactly will amount to a title to sue, but it is generally accepted that a claimant will need to occupy the property, with Lord Goff in Hunter v Canary Wharf going further saying that the party must have a ‘right to exclusive possession’. This will easily be satisfied in most cases as claimants will have a lease or be the freeholder of the property, but it is less clear if the claimant has only a licence.

The calculation of what is a ‘reasonable user’ is a balancing act based on broad criteria such as the claimant’s use of land, the nature and extent of damage/inconvenience, the locality involved and whether the defendant caused the disturbance in malice. Some considerations are exempted, such as if the claimant’s use of land is particularly sensitive, and the defendant will be unable to argue that he is providing a public benefit by his actions.

There are very few defences to a claim in nuisance if one is found to exist on a calculation of the above considerations. The existence of a permit or planning permission to engage in a particular activity does not provide an absolute defence, although it will arguably have some importance in the calculation.

Coventry v. Lawrence [2014] UKSC 13

The case concerned a lengthy dispute between the owners of a remote cottage in rural Suffolk and a speedway track. The facility was initially a small stadium and was established in the 1970s. Over time it had expanded quite extensively, and at the time of litigation the stadium had an additional motocross track and hosted stock car races. The facilities all had requisite planning permission and permits to operate and were found to operate within those limits for the majority of their operation, and the cottage in question was nearly a kilometre away. The owners of a cottage, Mr Lawrence and Ms Shields, found the noise to be interfering with their reasonable enjoyment of what should have been a peaceful countryside retreat. The council were engaged initially with trying to mediate between the two parties, but after 2 years of to-ing and fro-ing the claimants sued the owners of the track directly for nuisance.

The owners of the track thought that they had a complete defence by virtue of the fact that they had the relevant permissions to operate as they had, and indeed the claimants had 'come to the nuisance' i.e. the "we were here first" argument. The claim eventually reached the Supreme Court and judgment was handed down in January this year. The litigation spanned over four years, and two years in to the litigation the cottage burnt to the ground.

The Supreme Court held in favour of Mr Lawrence and Ms Shields that there was indeed a nuisance and that the regularity and level of noise amounted to a nuisance. This is despite the fact that the track complied with all relevant health and safety standards and thus would normally be termed 'safe'. Lord Neuberger provided some commentary on the interrelation of the planning regime with the law of private nuisance when he stated:

It seems 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 her with compensation, when there is no provision in the planning legislation which suggests such a possibility

He went on to comment:

While the decision whether the activity causes a nuisance to the claimant is not for the planning authority but for the court, the existence and terms of the permission are not irrelevant as a matter of law, but in many cases they will be of little, or even no, evidential value, and in other cases rather more.

Then came the radical part:

I am very dubious about the notion that it would always be safe to assume that the reasons given by planning officers for recommending that planning permission be granted were the actual reasons which the planning authority had in mind when granting planning permission

These comments are extremely surprising as Lord Neuberger is openly saying that he mistrusts the motivations for planning authority’s decisions in granting permission for certain developments. The comments clearly show though that nuisance has a part to play in the regulation of neighbourly disputes and not all grievances will be adequately protected by the planning system. It will be interesting to see how these comments translate into common practice, and whether judges and practitioners look to focus on the less radical comments of Carnwarth LJ.

Another aspect of the decision was that the court sought to change the approach to the issue of appropriate remedy for nuisance. The previous position was that the claimant would be granted injunctive relief unless the claim met the Shelfer criteria. These were that a claimant will only be granted damages in lieu of an injunction when the damage caused is relatively small, is compensatable and it would be undue burden on the defendant to grant an injunction. The court did not make a determination of the appropriate damages in the case at hand, but instead set down principles for the courts to apply in subsequent decisions. The court stated that there was a presumption in favour of an injunction, and it was for the defence to show that an injunction would be the wrong remedy on the facts. Lord Neuberger postulated that the very fact of planning permission may be a factor, but he left the ultimate decision to the trial judge to re-examine the extent to which the planning permission adequately addresses the damage felt by the claimants.

The Impact

The comments of Lord Neuberger (particularly 95-98) have managed to make a complicated balancing exercise arguably even more confusing. The overall outcome of this decision for businesses that operate noisy, smelly or otherwise unsightly activities is a great deal of uncertainty. This decision highlights that even after the extensive public participation procedures that have to be undertaken in planning, the business may still be liable for actions in nuisance. The impact on businesses is yet to be seen, but there are many scenarios where one may be liable for nuisance under these new rules. As an example, the disruption caused by the building of massive sub-basements in densely populated boroughs in London could arguably amount to a nuisance under the Coventry formulation.

There may be some solace for businesses in what seems to be a particularly gloomy situation. The question of remedies will undoubtedly be the subject of much litigation in the coming years, but this may mark a shift away from the default position of injunctive relief to a greater incidence of compensation. This means that although nuisance may be extended and more successful claims, the activities may not be stopped as a result.

A win for the environment?

Although this case is first and foremost about the disagreement between the cottagers and speedway track owners there is another element that should not be overlooked. This decision is good news for the environment more generally. The speedway track, although operating within health and safety limits, obviously was out of kilter with the idyllic Suffolk countryside in which it was situated. As every student who has studied tort knows, 'What is a nuisance in ... Belgrave Square is not necessarily so in Bermondsey'. This speedway track interfered with the peaceful nature of the surroundings and it is good to see that this juxtaposition is still considered to be relevant in an increasingly growth-focused society.

Final Thoughts

This decision may ultimately be seen as a landmark decision in the re-emergence of nuisance. However, the impact depends upon how it is interpreted by the lower courts in everyday practice. Indeed, the initial trial judge has been ordered to determine whether damages or an injunction would be most appropriate in the case. It will be interesting to see how this is handled and how far the court will be expected to take planning permission and permit conditions into account, especially in light of the drive to improve efficiency within the courts service.

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Tagged: Commercial Law, Environmental Law, Property Law, Tort Law

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