The Court of Appeal has awarded damages and an injunction to local residents affected by noise from a nearby racing circuit.
The Court of Appeal decided that the racing circuit was causing a nuisance even though it had planning permission and was operating within the terms of a binding agreement with the local council.
The claimants in Watson and ors v Croft Promo Sport Limited (26 January 2009) lived just to the north of a motor circuit managed by Croft. The circuit, formerly an aerodrome, had been used for car racing of one sort or another since 1949.
- From 1949 to 1962, it was used as a relief airfield and for car racing.
- In 1963, planning permission was granted (following a local enquiry and subject to conditions) for motor and motorcycle events, for driving tuition and as a sports centre.
- From 1963 to 1979, it was used for car racing on not more than 20 days per year, together with additional associated practice days.
- From 1980 to 1994, it was used for rallycross on 10 days per year.
- Croft became interested in the circuit in 1994 and started to intensify activities there. From 1995 to 1997, it was used for sporadic race meetings interspersed with track alteration and improvements.
- In 1998, there was a further enquiry as Croft tried to remove some of the conditions that had been attached to the 1963 planning permission. Croft entered into a unilateral undertaking (the "Section 106 Agreement") as to the frequency and intensity of noisy events. The inspector decided to grant planning permission for the continued use of the circuit for motor and motorcycle events and as a sports centre free from the 1963 planning conditions, but subject to the conditions set out in the Section 106 agreement.
- From 1998 until 2007, the circuit was used for between 144 and 207 days per year, with most activity concentrated in the summer months.
In 2006, the claimants brought an action in nuisance against Croft. Forty to fifty days per year of car and motorcycle racing was fine, but the vehicle testing and track days on top were excessive. They sought damages for the nuisance that they had endured in the past and an injunction to restrain future excessive activity.
Croft's defence was that, although its activities did cause noise and some discomfort and inconvenience to the claimants, there was no actionable nuisance because the use of the circuit was reasonable having regard to the nature and character of the area arising from the grant of planning permission in 1963 and 1998. In addition, it claimed that, if actionable nuisances had been caused, the claimants should not be granted an injunction.
The judge held that the nature and character of the locality had not been changed by the planning permissions or the Section 106 Agreement and remained essentially rural. Croft's intensified activities constituted an actionable nuisance. He awarded damages for the diminution in value of the claimants' property and loss of amenity, but declined to grant an injunction.
Both parties appealed. Croft was unhappy with the finding that its activities amounted to a nuisance. The claimants were unhappy that the judge had not granted an injunction.
The Court of Appeal recognised that the implementation of planning permission may alter the nature and character of the locality as to shift the standard of reasonable user which in turn governs whether a nuisance is being caused to third parties. However, the mere grant of planning permission does not in itself affect the private law rights of third parties or the nature of the area, even where the grant follows an exhaustive consideration of the consequences of the development in question.
As to whether the implementation of the planning permissions had in fact changed the nature and character of the locality from being predominantly rural, the Court of Appeal agreed that it had not. The actual activity at the circuit allowed by the planning permission had been modest until the recent intensification. The Court held that the current levels of noise represented an actionable nuisance.
The Court also granted an injunction restricting Croft to its core activity of 40 racing days per year. It said that, where there was an actionable nuisance and the claimant was oppressed, an injunction was a claimant's right. It was not really a question of where the "balance of convenience" lay. Damages in place of an injunction should only be awarded in exceptional circumstances. None appeared to be present.
- Croft's circuit was the only one in the area and this was a key reason behind the grant of planning permission. However, the Court said that the fact that a wrongdoer is a public benefactor is not sufficient reason for not granting an injunction.
- The Court said that the effect of the grant of an injunction on the public should be taken into account but it is only likely to prevent an injunction in marginal cases where damage to the claimant is minimal. There was no evidence of any adverse effect on the public interest resulting from restricting Croft to its core activities.
- Croft had spent money on improvements at the circuit. On closer inspection, however, it was clear that the expenditure related in the main to Croft's core activities which were not the focus of the injunction.
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