Share it

On appeal from [2012] EWCA Civ 26Poloko Hiri

Brief Facts

Katherine Lawrence and Raymond Shields moved into a residential property near a stadium, the operators of which carried out noisy motor cross activities having acquired planning permission to do so. An injunction to restrict the activities was sought. The operators argued they had acquired a prescriptive right to carry out the noisy activities.

Supreme Court Judgment

The Supreme Court unanimously allowed an appeal by Lawrence and Shields, holding inter alia that:

(i) It is possible to obtain by prescription a right to commit what would otherwise be a nuisance by noise. It has to be established that the relevant activity has created a nuisance for over 20 years “without interruption”. However, in this case, the operators had not established this and so they failed to establish a prescriptive right to carry out their noisy activities, hence the activities constituted a nuisance.

(ii) Coming to a nuisance is not a defence, provided the claimant uses the property for essentially the same purpose as his or her predecessors before the alleged nuisance started.

(iii) A defendant who faces an accusation that his or her activities constitute a nuisance can rely on those activities as constituting part of the character of the locality, but only to the extent that those activities do not constitute a nuisance.

(iv) The granting of planning permission does not mean the activity in question is not a nuisance. Lord Neuberger stated that it seemed wrong in principle that through the grant of planning permission, a planning authority should be able to deny a property-owner the right to object to what would otherwise be a nuisance, without providing compensation.

The decision of whether or not an activity causes a nuisance is for the court, not the planning authority. However, there will be some instances when the terms of a planning permission could be relevant in a nuisance case.

(v) Where it is established that the defendant’s activities constitute a nuisance, the prima facie position is that an injunction should be granted and the legal burden is on the defendant to show why it should not. However, in a number of recent cases, the court had been too quick to grant injunctions without looking at whether to award damages instead. In the present case, the injunction would be restored (albeit stayed because the house was yet to be rebuilt after a fire) but if the matter were to go back before a judge then that judge should be able to consider whether to award damages instead.

Comment

The Supreme Court’s decision is a significant one for the law of nuisance. In particular, it cements the fact that it is indeed possible to acquire by prescription a right to carry out what would otherwise be a nuisance by noise, if specific conditions are met.

Until this decision, the granting of a planning permission could be of some limited assistance to a defendant in specific circumstances. However, the Supreme Court has essentially ruled that planning permission does not extinguish private rights and is not necessarily relevant to liability. Planning permission can thus only be taken into consideration, for example, to the extent that the activity in question does not cause a nuisance when considering the character of the locality. Planning permission can however be relevant to remedies.

This blog post is the winning entry in a competition run by Matrix Chambers and GSM London.

Poloko Hiri is a final year LLB (Hons) student at GSM London. He has a keen interest in a career at the Bar and he will be enrolling onto the BPTC in September. His academic achievements so far are swaying him towards the Chancery, however being of a military background, he has not ruled out re-enlisting as a Legal Officer. He has a fascination with the CJEU and he is writing his dissertation on accusations of judicial activism at the court, particularly the problems instigated by a lack of a consensus on a precise definition of the term by those who make the accusation.