A dead cert… or a nuisance?

When a developer has obtained planning permission, has he gained commercial certainty for his development? In particular, is he free from any complaints about nuisance that might lead to proceedings in the civil courts with the result that an injunction might be granted cutting down the scope of the planning permission?

In most small-scale undertakings, the common sense answer is 'no'. If an officer of the local planning authority uses devolved powers to allow a householder to make alterations to his building, but these changes cause smoke to vent into the air and then into a neighbouring bedroom through an open window, you couldn't begrudge the affected person the right to complain to a judge.

Tolerating the effects

The other end of the scale is also fairly clear cut. Where there is a truly 'strategic' development of great significant local or even national importance, then the affected individuals will normally be expected to tolerate the effects. This was the result in Gillingham Borough Council v Medway (Chatham) Dock Co [1993] QB 343.

In this case, the local planning authority granted various permissions which turned the local disused naval dockyard into a 24-hour, roll-on roll-off freight terminal. The residents along the road leading out of the docks suffered a disastrous increase in traffic volume. The judge decided that the nature and character of the area had been changed by the planning permissions which had been granted. The residents were not entitled to complain by civil proceedings because the traffic noise was to be expected from the activity now permitted at the yard '“ there was a 'reasonable user'.

But what about the cases in the middle, for instance sporting venues, factories and other entities which cause a degree of pollution?

This was the problem that faced the Court of Appeal, in Watson v Croft Promosport [2009] EWCA 15. Here, planning permission had been obtained in 1963 for the use of a former aerodrome as a race track. The restrictions in the use of the site were minimal and the planning permission was implemented.

While there were some very significant meetings in the early history of the track after 1963, its use diminished over the years until about 1995 when racing recommenced at the venue. Over the last decade it has become one of the premier motor-racing tracks in the UK.

To ensure commercial certainty the new owners applied for planning permission. In 1998 the developers entered into a unilateral planning obligation permitting defined amounts of noisy racing for 210 days a year. There was a public inquiry in the same year, and several site visits from the inspector who granted permission.

Thereafter the owners spent some £1.7m developing the track. In 2006 Mr Watson, whose house is 300-500 metres from the side of the track, commenced private nuisance proceedings and claimed an injunction.

Reasonable use

The defendant objected, saying the issue of noise had been determined at a public hearing by an inspector for whom noise had been the principal issue. All parties at the inquiry had presented expert acoustic evidence. Subsequently the local planning authority, on the advice of leading counsel, had accepted that the planning permission granted in 1998 had changed the nature and character of the area, with the effect that so long as the restrictions set out in the s.106 undertaking were observed there was a reasonable user of the circuit.

Simon J, at first instance, did not accept that the development could be described as 'strategic'. He decided that a reasonable use of the track would allow only 40 days of racing a year, but he refused to grant an injunction. The Court of Appeal disagreed with Simon J, and granted an injunction to prevent racing (as described in the s.106 agreement) for more than 40 days a year. The court did not take into consideration any wider matters of public interest when it came to the question whether or not there should be an injunction.

Recent years have seen a variety of attacks on the 'virility' of private nuisance as a tort. Some have argued that in some of its manifestations it should be abolished and replaced with negligence; but it has real value for claimants as a tort of strict liability.

Despite comments in some House of Lords' cases that private individuals must take second place to interests that are recognised and endorsed by the planning system, this case demonstrates great reluctance on the part of judges to allow public law decisions by experienced judges in the planning system to take precedence.

In this case the Court of Appeal was impressed by the fact that there had been a period when the activities at the circuit had been at a reduced level. In a sense the owners had brought its difficulties on itself, and the inspector's hands in 1998 had been tied because of the breadth of the 1963 permission (the developer intending to rely on this as its fall-back if permission was refused in 1998). The likelihood is, notwithstanding these distinctions, that the fact that a full planning inquiry into the same merits has previously taken place will not be able to assist a defendant in private law proceedings.

The result, in cases of significant (but not 'strategic') interest, is that a developer cannot be safe in his investment. He must reckon on having to pay out compensation to those locals who are affected to a limited degree by the development but, where others are more significantly affected, he must also take on the chin the real possibility that he may not be entitled to continue using the development at all.