Nuisance ruling to create 'massive burden' for councils




Solicitors Journal



Jackson LJ says planning permission 'cannot authorise' nuisance

A ruling by Lord Justice Jackson on private nuisance will create a "massive burden" on councils when deciding whether to grant planning permission, a leading environmental lawyer has said.

Katherine Lawrence and Raymond Shields bought a house in West Row, Suffolk, and objected to the noise produced by a nearby motor racing stadium and motorbike track. They sued the owners and operators for nuisance.

Richard Buxton, who runs his own environmental and public law practice in Cambridge, acted for the couple. He said the impact of the ruling would mean that a "planning permission that results in a nuisance-causing activity can change the character of an area so that activity is regarded as acceptable".

Buxton went on: "This ruling will create a massive and countrywide burden on public authorities to make sure any planning permissions they grant do not result in a nuisance. Otherwise people will have no redress."

Lucinda Brown, partner at Hewitsons in Cambridge, acted for the joint owners of the freehold of the motorcross track - the fourth, fifth and sixth defendants in the case.

She said Jackson LJ had made it clear that "the character of the locality established by planning permissions going back to 1975 could not be ignored by the judge when considering whether the noise amounted to a nuisance".

Brown said that, before granting planning permission, Forest Heath District Council had carried out a "careful weighing of private interests against public benefits" that the motorsport activities provided.

She went on: "This definitely had a bearing on the decision. It was not a slapdash approach."

Lawrence and Shields were awarded damages of £20,850 for nuisance and an injunction at the High Court.

Dismissing the nuisance claim at the Court of Appeal, Jackson LJ said "the noise of motorsports emanating from the track and the stadium are an established part of the character of the locality".

He said they could not be "left out of account" when a court was considering whether the matters complained of constituted a nuisance.

Giving the leading judgment in Coventry (trading as RDC Promotions) v Lawrence and Shields [2012] EWCA Civ 26, Jackson LJ said planning permission ‘cannot authorise the commission of' a nuisance.

He said the grant of planning permission "may change the character of the locality" and it was a "question of fact in every case" whether the grant and implementation of planning permission had that effect.

If the character had changed, the question of whether activities constituted a nuisance "must be decided against the background of its changed character" and a consequence may be that "otherwise offensive activities in that locality cease to constitute a nuisance".

Jackson LJ said it would be "most surprising" if Lawrence and Shields had bought the house unaware of the "various forms of motorsport" taking place in the stadium and on the track.

He went on: "The relevant planning permissions and certificate of lawful use were all available for inspection on the register maintained by the local planning authority.

"It is a matter of prudence, indeed basic common sense, to inspect that register before purchasing a property in a rural location."

The court heard that planning permission for the stadium had been granted in 1975 and for the motorcross track in 2002.

Recognising that the outcome of the litigation would be a "disaster for the claimants", Jackson LJ allowed the appeal and dismissed the nuisance action.

Lord Justices Lewison and Mummery agreed.