Supreme Court brings private nuisance into the 21st century
3 March 2014
Coventry v. Lawrence [2014] UKSC 13, 26 February 2014, read judgment
The law of private nuisance is the way of balancing the rights of neighours, the right to be noisy or smelly, and to be free of noise or smells. Hitherto it is has been explicitly a private law remedy, and has slightly odd rules. But it has been struggling with public interests for some years; are they irrelevant, or can they carry the day for claimant or defendant in a private nuisance claim?
Fortunately, enough of the big issues bedevilling this area of the law came before the Supreme Court in one fell swoop. And they have led to an important re-balancing of the rules. In particular, public interest is relevant, but not at the first stage of deciding whether someone has a claim, but later – can they get an injunction to stop the noise or should they be confined to damages?
And all this arose in the context of some speedway, stock car, banger and motocross racing in an otherwise fairly rural bit of Suffolk.
Speedway has been happening in a stadium near Mildenhall since the mid 1970s, with motorcross following in the early 1990s at a track nearby. There are some neighbouring properties, including one owned by the claimants a little over 500 metres from the stadium. The claimants moved in during 2006, but the property had been occupied since the 1950s. They sued the operators. The judge found for them. There seems to have been more than one noisy event every week for some years before the trial.
The operators said – we have been doing this a long time, and we have planning permission for what we do. Planning permission involves a balancing of public interests, so the courts should not interfere with the balance thus set.
The claimants said – that is all irrelevant, you are making far too much noise, and, on the judge’s findings, you could make less noise if you put your mind to it.
Thus were the battle-lines drawn. These relatively simple facts cut across all sorts of rather arcane bits of property law.
Prescription
There is an ancient, and quite frankly, deeply muddy concept that if you have been doing something for 20 years or more you get a prescriptive right to do it. This is the simple version: the more complex is summarised at [30]-[31] of Lord Neuberger’s judgment. The easy cases of prescription involve the right to light or similar; if there is a building in the way of your light for 20 years, you cannot sue. But what happens if you have a rather more fluctuating problem like noise or smell or dust? The Supreme Court has decided that this can give rise to a defence – but only if the noise etc has been so bad for 20+ years that it has amounted to a nuisance. One complication: you don’t have to show that the nuisance happened throughout the 20 years. Interruptions of some years may not be fatal as long as on all the evidence there is enough continuity about the activity.
The stadium failed to make this out on the facts; they could not prove that the noise throughout the 20 years before the claim was started was sufficiently uniform as to amount to a nuisance.
But the defence may well assist operators who have been carrying on a reasonably uniform industrial activity for more than 20 years. The Supreme Court has given a green light to such defences; previously the law was somewhat unclear on the position.
The claimant coming to the nuisance…
…is no defence, every law student knows. And so it remains, according to the Supreme Court, despite a rearguard action by the operators to dust off some 1590s law and make it fit modern times. But this comes with an important twist. If the claimant not only came to the nuisance but also changed her use of the land (say, putting a house on hitherto unoccupied land) so that the defendant’s activities now caused a nuisance whereas they previously had not done so, this does amount to a defence.
A nuisance in Belgravia, not necessarily so in Bermondsey
Still the law, even though Bermondsey has gone considerably upmarket since a Victorian judge came out with this 1st year law apothegm; nuisance may be affected by the character of the locality. But what happens if Belgravia becomes more like Bermondsey because of the activities of the defendant? Obvious answer, you might have thought – a defendant cannot rely upon his own wrong to change the nature of the locality.
The Supreme Court, reversing the Court of Appeal, agreed. A noisy activity or set of activities may now be relevant to the character of the locality, but the principle does not go so far as to justify noises so loud as to amount to a nuisance: [65]. For the latter, the claimant can still sue.
Does planning permission authorise a nuisance?
This was the difficult bit, because there were two sets of previous cases pointing in previous directions. Permissions for small or smallish scale developments (a extended pig farm in Wheeler or – a case of mine- motor racing in Watson) have been held not to authorise a nuisance, whereas large infrastructure projects (Canary Wharf or Gillingham dock) were so held. The Supreme Court, again disagreeing with the CA, thought that this was illogical. Why should something causing a nuisance to lots of people be more readily justified that something causing a nuisance to a few? So it reversed decisions suggesting that a planning permission could authorise a nuisance. That is not to say that a court might not be assisted by the evidence before a local planning authority or planning inspector, but it was no more than evidence. Planning decisions explicitly do not determine private rights.
Injunction or damages?
For the last 120 years, the circumstances have been limited in which a court, finding for a claimant in nuisance, has been able to confine him to damages and refuse an injunction stopping or restricting the activity. The courts should not be in the business of sanctioning wrongs, unless it was oppressive to make an injunction: see the Victorian case of Shelfer discussed at [103]-[104] of the present case.
The Supreme Court has emphatically disapproved of this straight-jacketing of the discretion to make or disallow an injunction. Lord Neuberger, with the majority, would accept that the prima facie position is that an injunction should be granted. Lord Sumption would not even go that far – saying that there was much to be said for the view that damages are ordinarily an adequate remedy for nuisance -Lord Mance disagreed – most people value the right to enjoy their home for reasons largely independent of money.
But the majority agreed that the existence of planning permission may well be of particular relevance to the remedy to be granted. All speeches are well worth reading, though those from Lord Neuberger (a property lawyer in practice) and Lord Carnwath (a planning lawyer in practice) bring particular expertise to the balancing exercise which the courts will have to carry out in future.
But what sort of damages?
Conventionally, if you fail to get an injunction, you are left with damages, for the diminution in value of your property caused by the nuisance, coupled with some annual payments for past nuisance. But Lord Neuberger floated the possibility that damages in these circumstances might be assessed by reference to the benefit to the defendants of not suffering an injunction: [128], and see [173] from Lord Clarke – put shortly, a slice of the (defendant’s) action. Lord Carnwath was doubtful about this: [248].
Ultimately, the Court was tentative on this issue. This was because the issue did not directly arise on the appeal. But it will undoubtedly arise in the near future.
So what happened?
The claimants got their damages. The CA had wrongly decided that there was no nuisance. The judge had granted an injunction, but he should now reconsider this in the light of the Supreme Court’s change in the law about injunctions. So the balance between noisy living and speedway fun remains in the balance, though the claimants will end up with some damages.
Comment
This is a highly important recalibrating of private and public law arrived at by looking at a host of controversial issues in one case. A number of issues were pronounced upon rather tentatively by the Supreme Court, for understandable reasons, and so there are a number of things to be sorted out in later cases. But the law is a good deal more nuanced and coherent than it has been for a long time.
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