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Supreme Court reviews the law of nuisance

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The recent decision of the Supreme Court in Coventry v Lawrence [2014] is an important case in the development of the law of private nuisance.

The case was brought by the claimants who sought an injunction to restrain the defendant racing track stadium’s racing activities. The claim was in respect of noise nuisance.  The claimants moved into their property, which is situated some 86 metres from the racing track, in 2006 whereas the defendant had been operating its business since 1975 pursuant to the grant of planning permission.

The Supreme Court took this opportunity to review the law and 5 key principles can be derived from the case:

Is there a right to commit noise nuisance by long use?

The Supreme Court concluded that an owner of land can establish the right to commit what would otherwise be regarded as a nuisance, provided they could show at least 20 years uninterrupted use of the land. This is known as acquiring a right by prescription.

The difficulty for a claimant is that the 20-year period only starts to run from when the nuisance is established (rather than just noise). Although the Court did acknowledge that the use need not be continuous, it is important to be aware of this.

Coming to the nuisance

It is one of the most well established principles of the law of nuisance that there is no defence to the land owner that the claimant ‘came to the nuisance’. Therefore, a defendant cannot argue that the activities already existed before the claimant arrived.

The Supreme Court confirmed this principle but they added that the case may be different where the Claimant does something with his land which makes the defendants actions a nuisance. This might be building on, or changing the use of the land. In such cases, the claimant’s case is more likely to fail as there is an argument that the claimant’s change has created the nuisance.

The character of the neighbourhood

Another well-established principle is that a defendant may be able argue that the activity complained of is consistent with the character of the neighbourhood and is therefore unlikely to be a nuisance.

The Court decided that a defendant can only rely on the activities as constituting part of the character of the neighbourhood to the extent that the activities can be conducted lawfully without nuisance. Therefore, if the activities could not be carried out without creating a nuisance, they could not be considered when assessing the character of the neighbourhood.

As was the case prior to this decision, each case will be decided on its facts.

Planning permission is not a defence

Another well-established principle is that the grant of planning permission to undertake the activity which creates the nuisance is no defence.

The Court confirmed this, but added that, where planning permission gives limits to the frequency and intensity of noise, then such conditions within a planning permission may be of some use to the claimant’s argument.

As a result, a Court is more likely to consider planning permission in cases involving noise nuisance.

Injunction over damages?

Perhaps the most significant point made by the Court in this case is in relation to the claimant’s remedy. It is well-established that where nuisance is established, the Court will grant an injunction. An injunction is an Order made by the Court to restrain the defendant’s actions.

However, the Court departed from this principle and considered that damages may be awarded instead. The Court relied on the earlier case of Shelfer v City of London [1895] which set out that damages can only be awarded over an injunction if 4 conditions are satisfied. These conditions are fulfilled when:

  1. the injury to the claimant's legal rights is small;
  2. the claimant can be compensated in money;
  3. a small payment would be adequate compensation for the claimant; and
  4. it would be oppressive to the defendant to grant an injunction.

The Court criticised the rigid use of the Shelfer test and stated that judges should avoid a mechanical application of an out of date test for awarding damages. They decided that the Shelfer test should not be applied so rigidly as to restrict the Court's discretion and they concluded that an injunction will not automatically be granted.

Although the Court acknowledged the default position that an injunction should be granted, it confirmed that it is open to a defendant to prove that damages are a suitable alternative.

The importance of this will be seen in future cases where the Courts are more likely to consider damages instead of automatically assuming an injunction is the appropriate remedy. This represents a significant change in the law and is something claimants will need to consider when pursuing a claim in private nuisance.

If you are subject to noise nuisance, contact our dispute resolution team for advice.

By Danielle Watts, Graduate paralegal in the Dispute Resolution team