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Noise

Effect of planning permission - damages in lieu

Watson v Croft Promo-Sport Ltd
[2009] EWCA Civ 15

Summary

The claimants (the owners of private homes) complained about the noise caused by a nearby racing circuit. In coming to the conclusion that there was a nuisance the court applied the principle that the mere fact that there is planning permission in existence in respect of the activity does not of itself authorise the nuisance. On the facts the trial judge found that some of the activities did constitute a nuisance. However, he refused to grant an injunction and awarded damages in lieu. On appeal the Court of Appeal upheld the finding of nuisance but reversed the decision not to grant the injunction. An injunction was granted. The case contains a useful reminder of the factors that are taken into account when a court decides whether or not to award damages in lieu of an injunction.

Planning

There are two basic principles, which were expressed by the Chancellor in the judgment in the following way:
    "First, it is well established that the grant of planning permission as such does not affect the private law rights of third parties. … Second, the implementation of that planning permission may so alter the nature and character of the locality as to shift the standard of reasonable user which governs the question of nuisance or not" (para 32)
One of the arguments run by the defendant was that the judge erred in law in failing to conclude that the nature and character of the locality had been changed by the grant of the relevant planning permissions and the terms of a s106 Agreement. However, the Chancellor pointed out that in order to come to the conclusion that the nature of the locality has been changed the relevant change must have arisen from the implementation of those grants and that agreement, not their mere existence. Further neither the tortious activities of a defendant nor the intensification of a particular use can change the essential character of the locality (see para 35).

Whether there has been a change in the nature and character of the locality is a question of fact and degree. The judge had come to the conclusion on the evidence that there was not and he was entitled to find that there was a nuisance (paras 36 and 37).

Damages in lieu

The judge was wrong to refuse the injunction and grant damages in lieu. One of the factors that he took into account was that the claimants had shown that they were prepared to be compensated for noise on some of the days. However, the CA rejected that point and considered that this was clearly a case where an injunction should be granted. The Chancellor started with the basic test:
    "It is clearly established by the decision of the Court of Appeal in Shelfer that damages in lieu of an injunction should only be awarded under ‘very exceptional circumstances’. It also established that the circumstance that the wrongdoer is in some sense a public benefactor is not a sufficient reason for refusing an injunction."
He pointed out that in Jaggard v Sawyer [1995] 1 WLR 262 Sir Thomas Bingham MR referred to the Shelfer test as a good working rule but added:
    "..that the test is one of oppression, and the court should not slide into application of a general balance of convenience test."
He also quoted the recent summary of the position by Mummery LJ in Regan v Paul Properties Ltd [2007] Ch. 135:
    "(1) A claimant is prima facie entitled to an injunction against a person committing a wrongful act, such as continuing nuisance, which invades the claimant's legal right.
    (2) The wrongdoer is not entitled to ask the court to sanction his wrongdoing by purchasing the claimant's rights on payment of damages assessed by the court.
    (3) The court has jurisdiction to award damages instead of an injunction, even in cases of a continuing nuisance; but the jurisdiction does not mean that the court is 'a tribunal for legalising wrongful acts' by a defendant, who is able and willing to pay damages …
    (4) The judicial discretion to award damages in lieu should pay attention to well settled principles and should not be exercised to deprive a claimant of his prima facie right 'except under very exceptional circumstances' ...
    (5) Although it is not possible to specify all the circumstances relevant to the exercise of the discretion or to lay down rules for its exercise, the judgments indicated that it was relevant to consider the following factors: whether the injury to the claimant's legal rights was small; whether the injury could be estimated in money; whether it could be adequately compensated by a small money payment; whether it would be oppressive to the defendant to grant an injunction; whether the claimant had shown that he only wanted money; whether the conduct of the claimant rendered it unjust to give him more than pecuniary relief; and whether there were any other circumstances which justified the refusal of an injunction.."
The reasons given by the judge in this case were not related either to exceptional circumstances within the broad illustrations given by Mummery LJ in Regan or otherwise, nor to being oppressive of the defendant. The judge recognised the limitations on his discretion to withhold an injunction but when it came to exercising his discretion he did not give effect to them (para 47). Further:
    "The mere fact that a claimant may be prepared to accept monetary compensation up to a certain level of inconvenience does not mean that he is either willing or capable of being compensated with money for inconvenience suffered in excess of that level." (para 48)
And on the question of there being a public interest in the existence of the course:
    "There remains the public interest element to which the judge referred... In a marginal case where the damage to the claimant is minimal I can accept that, consistent with the principles of Shelfer, the effect on the public of the grant of an injunction is properly to be taken into account. But the fact that the public benefit might be relevant in those circumstances does not mean that its existence can, alone, negate the requirement of exceptional circumstances or oppression of the defendant which both Shelfer and Jaggard clearly require.."

Comment

There is no new law in this case but it does nicely emphasise that the existence of a planning permission and a s106 agreement does not give a landowner an automatic right to carry out the relevant activity. If the activity gives rise to an actionable nuisance the neighbouring properties retain their right to stop it. This is often overlooked and is similar to the position in relation to restrictive covenants. The existence of planning permission does not give an automatic right to have a restricted covenant modified to allow the development to go ahead.

The case also illustrates an increasing tendency in the courts not to allow tortfeasors to buy off their victims with damages (eg see the position in relation to rights to light: Regan v Paul Properties).


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.

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