Nuisance and Planning revisited

The Supreme Court has recently handed down an important decision on the tort of Nuisance (Coventry v. Lawrence [2014] UKSC 13) (26 February 2014). The case is of interest in the planning context, because the claim related to the use of a stadium built under a planning permission that had been granted in 1975. The permission authorised the construction of the stadium and permitted its use for “speedway racing and associated facilities” for a period of ten years (and this permission was renewed permanently in 1985, although subject to a condition making its use personal to the applicant).

The scope of the use of the stadium was in fact significantly extended, in breach of planning control, to include stock car and banger racing from 1984, but these additional uses became immune from enforcement under the 10-year rule, and a Certificate of Lawfulness of Existing Use or Development (a “CLEUD”) was issued by the LPA in 1995. A further CLEUD was issued in 1997 confirming that, for a period of ten years, there had been 20 stock car and banger racing events at the stadium each year, so that this use had become lawful. Furthermore, greyhound racing had been going on at the stadium since 1992.

In addition to this, at the rear of the stadium there is a motocross track, constructed and used under a personal planning permission for motocross events, granted in May 1992 for a year, and renewed from time to time thereafter, subject to conditions which sought to control the frequency of events, and the amount of sound which was emitted during those events. Eventually, in 2002, a permanent personal planning permission was granted for this use, subject to similar conditions, including one which limited the use of the track to a specified number of days within prescribed hours, and another which imposed a maximum noise level of LAeq 85 dB over any hour at the boundary of the track.

The stadium subsequently came into different ownership, and the trial judge had found that, between 1975 and 2009, the stadium had been used for speedway racing between 16 and 35 times per year, except for six years between 1990 and 2000 when it was not used at all for speedway racing. As for stock car racing, the judge found that it had occurred at the stadium between 16 and 27 times a year between 1985 and 2009 (although there was no stock car racing in 1991 or 1992). The judge also found that the track had been used for motocross to the full extent permitted by the relevant planning permission. In 1995, this activity had resulted in the service of noise abatement notices, under section 80 of the Environmental Protection Act 1990, which were then the subject of inconclusive proceedings.

The claimants (the appellants in this appeal) lived in a bungalow about 560 metres from the stadium, which they bought in 2006 from the previous owners, who had lived there since 1984. The claimants first complained to the local council about noise from the stadium and the track about three months after moving in, as well as complaining to the owner and operators of the stadium. Noise abatement notices in respect of this statutory nuisance were served by the council, and were eventually complied with by the completion of noise attenuation measures in 2009. A more general complaint of private nuisance was also pursued by the claimants, resulting in the present proceedings, which were commenced early in 2008, but seem to have taken rather a long time to come to trial.

The trial judge found that a nuisance had been committed, and granted an injunction to restrain and control the activities that were causing the nuisance. The Court of Appeal overturned this judgment, finding that what had occurred did not amount to a nuisance at common law, but the Supreme Court has now overturned the Court of Appeal’s decision and restored the decision of the judge at first instance, including the injunction that he had granted.

This was a unanimous decision of a strongly constituted 5-judge court. In five closely reasoned judgments, Lords Neuberger, Mance, Clarke, Sumption and Carnwath delivered what can only be described as a veritable tour de force in comprehensively reviewing the law of Nuisance. In doing so, they effectively overturned the law of nuisance as established in decisions of the Courts over the past three hundred years. This case will undoubtedly be seen as the locus classicus on the tort of Nuisance for many years to come.

It would be impossible to do justice to this decision in a single blog post, so I propose to concentrate solely on the relationship that planning law bears to the law of Nuisance, as confirmed by this decision. This was discussed in detail by both Lord Neuberger and Lord Carnwath, and I will try briefly to summarise the relevant observations of the latter on this topic. He identified this as the most difficult problem raised by the present appeal.

The issue has attracted particular attention over the last 20 years, since the judgment of the High Court in Gillingham BC v Medway (Chatham) Dock Co Ltd [1993] QB 343), and it has been considered by the Court of Appeal in two cases before the present action (Wheeler v J J Saunders Ltd [1996] Ch 19 and Watson v Croft Promosport [2009] 3 All ER 249) and once in the House of Lords (Hunter v Canary Wharf Ltd [1997] AC 655). In the Gillingham Docks case, planning permission had been granted to the defendant to develop part of the historic Chatham Royal Naval Dockyard as a commercial port. It had been clear to both the council and local residents at the time that the port would be operated on a 24-hour basis, and that the only access to the port for vehicles would be via two residential roads. In spite of strong objections by local residents the council decided that the promised economic benefits outweighed the inevitable disturbance of local residents.

The council subsequently had a change of heart, and brought an action in public nuisance seeking to restrain the use of the residential roads by heavy goods vehicles at night. (Modifying the planning permission to achieve the same effect would have involved the payment of compensation.) The judge rejected the claim. Although he accepted that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance, an LPA can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of making various activities, which prior to the change would have been an actionable nuisance, immune from any such claim. The grant of planning permission for the dock had authorised a change to the character of the neighbourhood, against which the reasonableness of the use was to be judged. The dock company was not operating the port other than as a normal commercial undertaking, and it could not operate a commercial port without disturbing nearby residents. It would not, the judge thought, be realistic to attempt to limit the amount of trade at the port.

That judgment was considered by the Court of Appeal, some three years later, in Wheeler v J J Saunders Ltd [1996] Ch 19. In 1988 and 1989, a company had obtained planning permission to construct two buildings on an existing pig farm to house some 800 pigs. One of these buildings was only 11 metres from a holiday cottage owned by the claimants in that case. Government guidelines recommended a normal separation distance of at least 100 metres from the nearest dwelling. The claimant succeeded in their action for damages and an injunction restraining the use of the new pig sheds, notwithstanding that they had been erected and used in accordance with planning permission. It was held by the Court of Appeal that the reasoning in Gillingham Docks had no application to the facts of the Wheeler case. The planning permission had not changed the character of the neighbourhood, which remained a pig farm but with an intensified use of part of it.

In the meantime, the Gillingham Docks case had been considered by the House of Lords in Hunter v Canary Wharf [1997] AC 655. A claim for nuisance was brought by local residents based on interference with television signals due to the construction of a tower (One Canada Square, which has become a well-known feature of the London skyline) as part of the Canary Wharf development. This development had been carried out under planning permission granted by the London Docklands Development Corporation. The House of Lords was unanimous in rejecting the nuisance claim so far as it related to TV reception. The case turned largely on other authorities, but it was also accepted that the situation at Canary Wharf was very similar to that in the Gillingham Docks case, where the character of the neighbourhood had been substantially changed by the development that had been authorised in the area, including the construction of One Canada Square.

More recently, the issue arose again, in circumstances much closer to those of the present case, in Watson v Croft Promosport Ltd (2009) 3 All ER 249. A World War II aerodrome had been turned into a motor racing circuit, pursuant to planning permission granted in 1963 after a public inquiry. Although there were no planning restrictions on the level of activities, its use was relatively limited until 1994 (involving no more than 10 meetings a year between 1982 and 1994), and this appears to have caused little disturbance to local residents. In that year, after the circuit had changed ownership, an application was made for more extensive use, involving 37 race days, 24 exclusive test days and 120 days when the track would be used for other purposes. Permission was granted by the LPA in July 1995.

In 1998, following a period of disputes with local residents, and an adjourned planning inquiry, the owner made a further application for planning permission on the basis that he was prepared to enter into a Section 106 agreement to set limits to the amount of noise from racing on the circuit. The proposed agreement contained a detailed set of measurement criteria by which noise from the circuit would be assessed and monitored, and it prescribed the racing activities which could be undertaken, and when quiet and rest days were to be held.

Planning permission was granted by the inspector on this basis. He accepted that “the Development Plan policies weigh heavily against the project” and that the noise had at times “been of such character, duration and intensity and tone as to seriously harm the amenity to which residents reasonably feel they are entitled”; but that had to be weighed against the existing planning permission which allowed uncontrolled use of the circuit. Bearing in mind “the very wide planning use rights which the site now enjoys”, he considered that the agreement would strengthen significantly the ability of the local planning authority to control noise at the circuit.

Local residents brought an action claiming that, even within the constraints set by the agreement, the activities constituted a nuisance. The judge at first instance, having noted the level of activity and the noise that it could generate, held that the character of the locality had been “essentially rural”, and that the circuit “could be, and was, run in a way that was consistent with its essentially rural nature”. He held that there was an actionable nuisance.

The finding of nuisance was upheld by the Court of Appeal. The court accepted that the implementation (not the mere grant) of planning permission might so alter the character of a neighbourhood as to render innocent an activity which would otherwise have been a nuisance, but whether it did so was a question of fact and degree. In this case the planning permissions had not changed the character of the local neighbourhood, which remained essentially rural, nor could the planning permissions be regarded as “strategic” in their effect.

Having reviewed these cases, Lord Carnwath commented that they suggest that a planning permission may be relevant in two distinct ways – first, it may provide evidence of the relative importance of the permitted activity as part of the pattern of uses in the area and, secondly, where a relevant planning permission (or a related section 106 agreement) includes a detailed, and carefully considered, framework of conditions governing the acceptable limits of a noise use, they may provide a useful starting point or benchmark for the court’s consideration of the same issues.

Lord Carnwath respectfully disagreed with reservations that had been expressed by Lord Neuberger as to the potential utility of planning officers’ reports as evidence of the reasoning of the planning authority itself. Judged by his own experience in practice and on the bench over some 40 years, he had found that a planning officer’s report, at least in cases where the officer’s recommendation is followed, is likely to be a very good indication of the council’s consideration of the matter, particularly on such issues as public interest and the effect on the local environment. The fact that not all the members will have shared the same views on all the issues does not detract from the utility of the report as an indication of the general thrust of the council’s thinking. That was illustrated by some of the planning reports in this case. In any event, in so far as the focus is on the evidence before the planning authority, rather than the decision itself, the planning officer’s report is likely to offer the most comprehensive summary of the relevant material.

On the issue of the relative importance of public and private interests in such cases, Lord Carnwath thought there should be a strong presumption against allowing private rights to be overridden by administrative decisions without compensation (see Wheeler – cited above). The public interest comes into play in a limited sense, in evaluating the pattern of uses “necessary… for the benefit of the inhabitants of the town and of the public at large”, against which the acceptability of the defendant’s activity is to be judged. Otherwise its relevance generally in Lord Carnwath’s view should be in the context of remedies rather than liability.

He accepted ,however, that in exceptional cases a planning permission may be the result of a considered policy decision by the competent authority leading to a fundamental change in the pattern of uses, which cannot sensibly be ignored in assessing the character of the area against which the acceptability of the defendant’s activity is to be judged. He read Staughton LJ’s use of the word “strategic” as equivalent to Peter Gibson LJ’s reference to “a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted”.

For this reason, in Lord Carnwath’s view (differing respectfully from Lord Neuberger on this point), the reasoning of the judge in Gillingham Docks can be supported. Similarly, the Canary Wharf development was understandably regarded by Lord Cooke as strategic in the same sense. But those projects were exceptional both in scale and in the nature of the planning judgements which led to their approval. By contrast, in neither Wheeler v Saunders nor in Watson v Croft Promosport Ltd did the relevant permissions result in a significant change in the pattern of uses in the area, let alone one which could be regarded as strategic; and, for the reasons he had noted in his judgment, neither decision could be regarded as reflecting a considered assessment by the authorities concerned of the appropriate balance between public and private interests.

Apart from such strategic cases, Lord Carnwath suggested that a planning permission may also be of some practical utility in a different way. As many of the cases show, a major problem when dealing with nuisance by noise is to establish any objective and verifiable criteria by which to judge either the existence of a nuisance or the limits of any injunction. In some cases there may have been a single planning permission which established, by condition or by a linked section 106 agreement, a framework of noise levels and time limits, which can be taken as representing the authority’s view, with the benefit of its expert advisers, of the acceptable limits.

Lord Carnwath pointed out that Watson v Croft Promosport Ltd offers one example of such a framework, in the form of a unilateral undertaking incorporating a relatively sophisticated set of noise criteria. This did not purport to be an assessment of what was seen by the planning inspector as objectively reasonable, but rather an attempt to control what had previously been the uncontrolled. However, some of the noise criteria found in the agreement were used by the judge in setting the threshold of what was acceptable, and by the Court of Appeal in framing the limits of their injunction.

Where the evidence shows that a set of conditions has been carefully designed to represent the authority’s view of a fair balance, there may be much to be said for the parties and their experts adopting that as a starting-point for their own consideration. It is not binding on the judge, of course, but it may help to bring some order to the debate. However, if the defendant seeks to rely on compliance with such criteria as evidence of the reasonableness of his operation, Lord Carnwath would put the onus on him to show compliance (see by analogy Manchester Corporation v Farnworth [1930] AC 171, relating to the onus on the defendant to prove reasonable diligence under a private Act). By contrast, evidence of failure to comply with such conditions, while not determinative, may reinforce the case for a finding of nuisance under the reasonableness test.

The present case, Lord Carnwath observed, is illustrative of the opposite case, where the conditions attached to the planning permissions were of little help to the judge. It was perhaps unfortunate that the LPA did not at some stage attempt to secure an overall agreement relating to the operation of activities on the combined sites. The permission for the stadium contained no noise limits, other than some limits on days and hours of use. Three breach of condition notices served by the planning authority between 2007 and 2009 related to apparently isolated breaches of those limits. The Lawful Development Certificate limited as to the hours that were lawful, but it was unclear how if at all these hours could be enforced. In relation to the noise limit of 85dB LAeq over one hour at the boundary of the site, set by the 1997 permission for the motocross site, the most recent evidence the court was shown of compliance was in a planning report of December 2001.

In the circumstances, Lord Carnwath held that the judge was entitled to regard the conditions in the planning permissions and the terms of the abatement notices as of very little assistance in establishing the appropriate noise limits of the defendant’s activity.

Earlier in this article, I wrote that in this case the Supreme Court effectively overturned the law of nuisance as established in decisions of the Courts over the past three hundred years. Other aspects of the law on this topic, which have not been discussed in this article (such as the acquisition of a prescriptive right to commit what would otherwise be a nuisance, the defence of ‘coming to a nuisance’, whether the defendant’s own activities should be taken into account in assessing the character of the area, and whether damages would be a sufficient remedy rather than an injunction) have indeed been substantially upset by this decision. However, so far as the effect of planning permission on an allegation of nuisance is concerned, this decision largely confirms the position that had been established by the cases that were discussed in Lord Carnwath’s judgment, but his further remarks on this topic represent a helpful commentary on the subject, and it is for that reason that I have reported them at some length.

It is to be hoped that, following this authoritative and definitive Supreme Court decision, it will not be necessary to revisit the principles governing the relationship between the grant of planning permission and the commission of the tort of nuisance for a good many years to come.

© MARTIN H GOODALL