Clearing the air: further clarity for private nuisance by the Supreme Court

When the Supreme Court handed down its judgment in Coventry & Ors v Lawrence & Anr [2014] UKSC 13 in February, it clarified a number of important aspects about private nuisance. The common law tort involves an act or omission by one person that interferes with the reasonable use or enjoyment of another’s land.

Private nuisance is a property-based tort rather than, say, statutory nuisance, which also considers matters that are prejudicial to health. It has a number of components including that:

• there must be material interference or harm suffered by a claimant;
• a claimant has an interest in the land affected (see Hunter v Canary Wharf [1997] AC 655; HL);
• there is unresonable use of a defendant's neighbouring land; and
• it must have been reasonably forseeable that the harm would arise (something often evident in e.g. noise, dust and smell-based nuisances, but less clear with, say, underground water contamination as in Cambridge Water v Eastern Counties Leather [1994] 2 AC 264.

These various components themselves may be influenced by a number of factors including the potential defences of acquiring the right to commit a nuisance (e.g. by prescription), the concept of ‘coming to the nuisance’, reliance on the defendant’s own activities and the grant of planning permission. It is these factors, plus a concern about remedies, that was considered,
with Lord Neuberger giving the lead judgment.

The ruling was placed in the context of noise nuisance from the development and use of Mildenhall Stadium, in rural Suffolk, for motor sports activities such as speedway racing, stock car and banger racing, and other associated activities. The judgment can reasonably be applied to many of the environmental-based nuisances including air pollution, e.g. smoke, dust, fumes, odour and light pollution.

Relevant activity

In relation to acquiring a right to commit what would otherwise be a nuisance, the court held at paragraphs 28 to 46 that it was possible to obtain by prescription a right to commit what would otherwise be a nuisance.

However, it was clear that what has to be established by the defendant is that the relevant activity has indeed created a nuisance for over
20 years ‘as of right’.

Lord Neuberger referred to R (Lewis) v Redcar & Cleveland BC No. 2 [2010] 2 AC 70 relating to prescriptive rights in village-green cases. He noted that ‘as of right’ meant not by force, stealth or with licence of the owner, and that a person claiming a prescriptive right “must by their conduct bring home to the landowner that a right is being asserted against him…”

Importantly, Lord Neuberger noted at paragraph 43 that a defendant has to establish that it has committed a nuisance for over 20 years. This may, in practice, be a risky litigation strategy.

No defence

At paragraphs 47 to 58, the Supreme Court reiterated the principle that a claimant ‘coming
to a nuisance’ is no defence. Lord Neuberger concluded, however, that it may be possible for a defendant to contend that if a claimant has come to the land and then built on or otherwise changed the land use, a claim that the defendant’s
pre-existing activity is a nuisance may fail.

This appears to overrule the 19th-century rationale that new development should not be hindered. Indeed, it would be interesting to how the facts of Sturges v Bridgman (1879) 11 Ch D 852 (the physician’s surgery in Marylebone built close to his neighbour’s disturbing noise and vibration from his confectioner’s grinding pestle and mortar) would be as successful on this reasoning.
Possibly not.

Lord Neuberger considered whether it is permissible for a defendant to rely on their own activities when the judge in a claim is assessing
the character of the locality. He concluded at paragraph 74 that they can, but only to the
extent that those activities do not constitute
a nuisance and added that: “… to avoid any misunderstanding, if the activities couldn’t be carried out without creating a nuisance, then they would have to be entirely discounted when assessing the character of the neighbourhood.”

In addition, any other activity in the neighbourhood can also properly be taken into account when assessing the character of the neighbourhood, to the extent that it too does
not give rise to an actionable nuisance or is otherwise unlawful.

Planning permission

At paragraph 90, Lord Neuberger said that it seemed wrong in principle that by granting planning permission a planning authority should be able to deprive a property owner of a right to object to what would otherwise be a nuisance, without providing the owner with compensation.

This was particularly so when there is no provision in the planning legislation that suggests this. Importantly, the discussion of planning permission and nuisance appears to shift the balance away from the High Court decision in Gillingham BC v Medway (Chatham) Dock Co Ltd [1993] QB 343. Lord Neuberger stated, at paragraph 99 that although the actual decision in Gillingham could stand it may, as Lord Carnwath suggested, be preferable to consider it as a decision based on discretion with much of
the analysis relating to no liability in nuisance being wrong.

Importantly, the court found that a planning authority can be expected to balance competing interests as best it can in the overall public interest and some of those interests may play no part in the assessment of whether a particular activity constitutes a nuisance.

However, it was noted that there will be occasions when the terms of planning permission could be of some relevance in a nuisance case, e.g. the fact that the planning authority takes view that noisy activity is acceptable after a certain time in the morning may be a useful starting point in the evaluation of a nuisance. However, it is clear that the Supreme Court sees the planning authority’s role as granting permission and the court’s position as considering whether a nuisance exists.

Damages award

The final key matter considered was whether, on finding a nuisance exists, the court should award damages instead of an injunction. The Court of Appeal’s decision in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 has broadly been that, unless very exceptional circumstances provide otherwise, an injunction should follow the finding of nuisance (see Watson v Croft).

In Lawrence, the court shifted the emphasis from Shelfer. At paragraph 121, Lord Neuberger stated that the prima facie position is that an injunction should be granted so that the legal burden is on the defendant to show why it should not.

He added at paragraph 125 that planning permission, which expressly or inherently authorises carrying on an activity in such a way
as to cause a nuisance, could be a factor in favour of refusing an injunction and compensating the claimant in damages.

Before leaving the question of damages, the courts then considered how much compensation should be awarded if damages are in lieu of
an injunction.

At paragraph 128, Lord Neuberger suggests
that they should not always be based on the consequent reduction in the value of the claimant’s property, as has previously been
the case. An alternative approach could be considering the value of the rights that have been lost, referring to the Court of Appeal decision in trespassing case Jaggard v Sawyer [1995] 1 WLR 269, which upheld a decision awarding damages in lieu of an injunction.

While the lords unanimously allowed the appeal, many gave reasons on particular points that were a variance to Lord Neuberger. In relation to need for an injunction, Lord Sumption did not agree that an injunction should be the starting remedy, while Lord Mance disagreed on the basis that most people value the right to enjoy their homes largely independent of the financial value that may arise.

The judgment is welcome in clarifying a number of factors and builds on the outcome of Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312, which was refused an application to appeal.

Notably, it reaffirms the importance of
common law rights alongside legislative controls, including land-use planning, and that individual rights continue to have real relevance in
ensuring that a peaceful environment, free
of material interference and disturbance,
means something today. SJ

Dr Paul Stookes is a solicitor-advocate and partner at Richard Buxton Environmental & Public Law, a part-time lecturer and an accredited mediator. His firm represented the claimants in Coventry v Lawrence

www.richardbuxton.co.uk