|
|
Noise
Effect of planning permission - damages in lieu
Watson v Croft Promo-Sport Ltd
[2008] EWHC 759 (QB)
Summary
In a case in which the claimants complained about the noise caused by a racing circuit the court applied the rule that the fact that there is planning permission in existence in respect of the sue does not of itself authorise the nuisance. Some of the activities did constitute a nuisance. However, damages were awarded in lieu of an injunction, primarily because of the delay in bringing proceedings. The damages were calculated on the basis of loss in value of the neighbouring properties.
Planning
There are two basic principles. The first is that a planning authority has no jurisdiction to authorise a nuisance, although it may have the power to permit a change in the character of a neighbourhood. The second principle is that the issue of whether a permissive planning permission has changed the character of the neighbourhood so as to defeat what would otherwise constitute a claim in nuisance, is a question of fact and of degree.
Damages in lieu
Simon J:"In the light of the above I have concluded that there has been neither conduct nor inactivity by the Claimants such that it would be 'unconscionable' for them to continue to seek to enforce their rights; and that the Defendant has not made out a defence of acquiescence so as to defeat the Claimants' equitable claims. I note that the Claimants also have continuing rights at common law; although I would not have been persuaded that the existence of those rights favour the equitable solution to capitalise such claims into one award of damages, as Mr Hart submitted." However at para 87:"I am firmly of the view that this is not an appropriate case for granting an injunction. First, although falling short of giving rise to a defence of acquiescence, there has been considerable delay in bringing these proceedings. Secondly, the Claimants have shown that they are prepared to be compensated for noise [on some of the days]. Whilst a willingness to compromise should not count against a party, it seems to me that a willingness to accept compensation instead of an injunction constitutes a matter which counts against granting an injunction. Put in conventional terms, it demonstrates that the Claimant can be compensated by the award of damages. For these reasons I decline to grant an injunction."
From above - floor coverings
Stannard v Charles Pitcher Ltd
[2002] EWHC 2760 (QB)
Claimant successfully established that noise from an upstairs flat constituted an actionable nuisance. An injunction was granted requiring the defendant to install appropriate floor coverings with acoustic barriers.
Prescriptive right to commit a nuisance
Dennis v Ministry of Defence
[2003] EWHC 793
Noise from Harrier jets operating from an RAF base constituted a nuisance. The MOD unsuccessfully argued that as the Harriers had been flying since 1969 it had acquired a prescriptive right to commit the nuisance. The defence was unsuccessful. Although in principle a prescriptive right to commit a nuisance can exist the right must be capable of forming the subject matter of a grant and the user has to have been as of right. In this case it would not have been possible to draft the easement with certainty and there had been a number of complaints. Further, the military activities were not to be regarded as an ordinary use of the land. The area was essentially rural. The noise constituted a breach of C's human rights under Articles 1 and 8 of the Convention. C's awarded damages but no injunction.
Back to top
|
|
|