Applying the correct test for an injunction

We represented the claimants, in this important case involving noise nuisance brought against the owner of an old aerodrome that had been repurposed as a motor race circuit. As the case concluded in the Court of Appeal, it is often cited on important principles of civil liabilities in the context of environmental harm.

Between 1949 and 1957 the site known as Croft Aerodrome was used intermittently for car race meetings. The aerodrome was built in WWII and covers some 195 hectares. The relevant part of the site included an airfield that was repurposed as a race circuit. There was a complicated history of consent being given to use the site for racing. First, there were two relevant planning decisions granting permission (first granted in 1963 and then again in 1998), and a planning agreement between the defendant and freehold owner of the site.

The original permission to use the aerodrome as a racetrack was granted with a condition that there are no more than 4 formula car race car meetings a year. Before the site was sold, the only motor racing had been rallycross taking place 10 days a year. In the 1980s the owner for the time being was granted permission to remove the old runway debris to spoil heaps to allow the land to be returned to agricultural use. This didn’t happen, however, and the permission was not implemented.

By 1994 the defendant had acquired the leasehold over the part of the site used as a race circuit. The defendant resurfaced the circuit relying on the 1963 permission and in 1997 motor racing recommenced. The defendant and the freehold owner of the airfield then entered an agreement to allow the defendant to use the circuit for motor events subject, among other things, to restrictions on noise levels measured at a defined point on the circuit.

Planning permission granted in October 1998 allowed the defendant to continue using the circuit for motor events, subject to the restriction on noise levels but no longer restricted to a certain number of race car meetings a year (i.e.., the condition imposed by the original 1963 permission).

In March 2006 the claimants brought a claim alleging that the use of the circuit by the defendants gave rise to excessive noise and constituted a nuisance. Following a 6-day trial in 1998, the judge found in favour of the claimants and awarded damages to both Mr and Mrs Watson. Damages were awarded instead of an injunction restricting the use of the circuit that the Watsons’ believed was appropriate and so they appealed. The defendant also appealed the judge’s conclusion that there was nuisance and renewed its argument that the planning history supported the position that the character of the neighbourhood had been changed noting, among other things, that the land had not been returned to agricultural use in the 1980s and otherwise had largely remained in use for motor events.

The Court of Appeal dismissed the defendants appeal and allowed Mr and Mrs Watson’s appeal. The court granted an injunction restricting the use of the circuit for events according to type of event, noise, and frequency level to 40 such events per year. Damages should rarely be substituted for an injunction in nuisance cases and, in this case, it was possible to grant an injunction limiting the defendant’s use of the circuit to a level which was considered, in the circumstances, to be the threshold for nuisance.