Reynolds Report December 2020 - "What a nuisance!"

For Property Law purposes nuisance is defined as an action (or failure to act) which is not otherwise authorised and which unduly interferes with the claimant’s enjoyment of his land.

It has been famously said that whether or not something is a nuisance is a question to be determined not merely by an abstract consideration of the thing itself but by reference to the circumstances and, in particular, an assessment of the locality in which the activity concerned is carried out.

“What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey” – to quote Thesiger LJ in the Court of Appeal in the 1879 case of Sturges v Bridgman 11 Ch D 852, 865.

The Supreme Court case of Coventry & Ors v Lawrence & Another [2014] UKSC 13 established, amongst other things, the principle that a planning authority is not, through the grant of a planning permission, able to deprive a property-owner of a right to claim in relation to what would otherwise be a nuisance and this important principle continues to be applied in more recent cases.

Looking then at the background to Coventry v Lawrence:

In February 1975 planning permission was granted to Mr Terence Waters for the construction of a stadium (“the Stadium”) on agricultural land which he owned three miles west of Mildenhall in Suffolk.  The permission allowed the Stadium to be used for speedway racing and associated activities for a period of ten years.

The Stadium was constructed and thereafter used for the permitted purpose by a company called “Fen Tigers Limited” – on the basis of a lease or licence from Mr Waters. Planning permission was renewed in 1985 and made permanent.

Stock car and banger car racing started at the Stadium in 1984.  These became established lawful uses following an application for a Certificate of Lawfulness of Existing Use or Development (“CLEUD”) applied for in 1995 and issued in July 1997.

To the rear of the stadium a motocross track (“the Track”) was also set up.  The Track was used pursuant to a personal planning permission for motocross events granted in May 1992 for a year and renewed from time to time thereafter – eventually becoming a permanent personal planning permission in 2002.

In August 2005 Mr Waters (Senior) sold the Stadium to his son James Walters who then leased it to Karl Harris.  For a period the business at the Stadium was then operated by David Coventry until Mr Coventry and his brother took on the lease and then acquired the Stadium in April 2008.

Fen Tigers Limited continued to practice speedway racing at the Stadium until going into liquidation in July 2010.  In September 2003 a ten year lease of the Track was granted to Moto-Land UK Limited who also operated various activities from the Track.

Some way away from the Track and the Stadium – across open fields – is a bungalow called “Fenland” which was built in the 1950s.  Fenland stands in about 0.35 hectares of garden and is otherwise surrounded by agricultural land.  The nearest residential property to Fenland is around half a mile away and the small village of West Row is about 1.5 miles to the south east.

In January 2006 Katherine Lawrence and Raymond Shields bought and moved into Fenland. By April 2006 Messrs Lawrence and Shields had become concerned about the noise coming from the motocross events on the Track.

They complained about this to the local council and wrote to the owners threatening proceedings.  The complaints to the council resulted in various noise abatement notices and carrying out of attenuation works intended to reduce the amount of noise.

Messrs Lawrence and Shields also argued however that the stadium and the track were being used in such a way as to constitute an actionable nuisance.  Settlement discussions having failed to produce an acceptable outcome, they applied to the High Court, in early 2008, for an injunction to restrain the nuisance.

The defendants denied nuisance and – notwithstanding that Fenland suffered extensive damage as a result of a fire in April 2010 which rendered it uninhabitable (and it remained uninhabited) – the matter rolled on through a first level decision in the High Court, then to the Court of Appeal eventually ending up in the Supreme Court on 12, 13 and 14 November 2013.

The issues which fell to be decided included the extent, if any, to which the grant of planning permission for a particular use can affect the question of whether that use is a nuisance.

In the lead judgment, Lord Neuberger found:

At para 89: The grant of planning permission for a particular development does not mean that that development is lawful.  All it means is that a bar to the use, imposed by planning law in the public interest, has been removed.

Para 90: Quite apart from this, 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 where there is no provision in the planning legislation which suggests such as a possibility.

He then quotes the statement from Peter Gibson LJ in Wheeler v JJ Saunders Limited [1996] Ch 19 (at 35): “The court should be slow to acquiesce in the extinction of private rights without compensation as a result of administrative decisions which cannot be appealed and are difficult to challenge.”

Lord Neuberger then goes on to contrast the position under general planning law with specific instances where there is explicit provision for compensation where nuisance is created.

On the whole, then, the courts remain robust in the defence of private property rights against any possible interference with those rights created by public/administrative decisions.

Further Reading:

The Midas Touch of an Acceptable Planning Permission – Reynolds Report

The impacts of COVID19 on the property market

Ways in Which You Can Extend a Lease

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