The recent Supreme Court case of Coventry & Ors v Lawrence & Anor  involved the claimants’ bungalow which was across some fields from a speedway track and raised a number of issues in the law of private nuisance namely:
• How far a defendant may contend that he has established a prescriptive right to commit what would otherwise be a noise nuisance;
The court concluded that you can obtain by long use a prescriptive right to commit what would otherwise be a nuisance by noise, or, in short, to transmit sound waves over neighbouring property.
But you had to ask whether the nature and degree of the activity over a period of at least 20 years, taken as a whole, would make a reasonable person on the receiving end of that noise aware that a continuous right to enjoy making noise was being asserted and ought to be challenged if the plan was to resist it.
Here there were some non fatal gaps in the defendant’s claimed use of the track. However what was fatal to this defence was that they had failed to show that their activities during the 20 years amounted to a nuisance. It was even insufficent to show that the activity has created a noise for 20 years. What had to be established was that the activity had (or a combination of activities had) created a nuisance over 20 years.
• How far a defendant to a nuisance claim can rely on the fact that the claimant “came to the nuisance”;
In this case the speedway track had been going since 1976, the year after it got planning permission. Other motor sports and greyhound uses had been added to the planning later. However the claimants had only been there since April 2006 and their predecessors since 1984.
The court said that the victim “coming to the nuisance” was no defence to a nuisance claim. This stemmed from the fact that nuisance is a property-based legal wrong. The right to allege a nuisance ran with the land. So it would be odd if a defendant was no longer liable for nuisance merely because the neighbour had changed, even though his neighbour’s property was still being used the same way.
It followed that it might be a defence for a defendant that an activity had only become a nuisance because the claimant had changed the use of, or built on, their land.
• The extent, if any, to which it is open to a defendant to a nuisance claim to invoke the actual use of his premises, complained of by the claimant, when assessing the character of the locality;
Here the court got into most difficulty. The court accepted the initial premise that the defendant’s activities are to be taken into account when assessing the character of the locality. The leading judgment then said that they would however not be acceptable so far as they amounted to a legal nuisance which appears entirely circular.
However it said they would be deemed lawful for those purposes if a court had already awarded damages instead of an injunction in respect of them.
Looking at the judgment the court do not seem to have squared the circle here. Perhaps the test is whether seen against the backdrop of the locality the defendant’s activities stand out as being a legal nuisance to the claimant which the claimant ought not reasonably to be expected to put up with at all, or at any rate without compensation.
• How far the grant of planning permission for a particular use can affect that use being a nuisance;
The court adhered to orthodoxy. Granting planning permission did not mean that that development was entirely lawful. It just meant that the public law, public interest hurdle of planning permission had been cleared. Things could be a legal nuisance in the 19th century even when the requirement for planning permission had not existed.
Anyway it would be wrong in principle if a planning authority could deprive a property owner of their right to object to a nuisance, without compensation, when there is no appropriate provision for them getting such compensation in planning laws.
• The approach to be adopted by a court when deciding whether to grant an injunction to restrain a nuisance, or whether to award damages instead, and the relevance of planning permission to that issue
Current authorities on this point were inconsistent.
The leading judge said the approach of the courts should be much more flexible than that suggested in some of them. It was entirely a matter for the court’s discretion.
Damages could be based on the loss of value to the claimants’ property caused by the nuisance.
But it was also suggested that damages should not be limited to this if the defendant might have paid the defendant more for a licence to commit the nuisance.
However, the leading judgment said there were factors militating against nuisance damages being assessed based on the benefit to the defendant in no injunction being granted.
As the court had heard no argument on the issue and held differing views, rather than cloud the issue further, the leading judgment said the fairest way to deal with the point was to refuse the defendants permission to raise it, but to hold instead that the judge’s order should contain a proviso that the defendants be free to argue for the judge’s injunction stopping the nuisance noise to be discharged, and damages awarded instead.
The decision whether to award damages instead of an injunction may be dependent on a number of issues, including the behaviour and attitude of the parties The trial judge would be better able to assess these. However the defendants would have to give the claimants sufficient notice of their intention to raise such arguments to enable the claimants to prepare.
However some members of the court indicated that the fact planning permission had been granted would not of itself cause the court to order damages rather than an injunction.
This blog is posted out of general interest. It does not replace tne need to get proper legal advice in individual cases.