UK: One Nuisance For Another

Last Updated: 4 November 2014
Article by Alexander Kingston-Splatt

The Court of Appeal has twice this year given judgments in the case Coventry and others v. Lawrence and another, first in February ("Coventry No. 1"; [2014] UKSC 13) and more recently in July ("Coventry No. 2"; [2014] UKSC 46).

The Facts

In the 1970s Mr Waters gained planning permission to construct on his farmland in Suffolk a motorcycle speedway stadium. The permission lasted for ten years, but was renewed in 1985. After the second permission was granted, the stadium was also used (without permission) for stock car and banger racing. Once ten years had elapsed, Mr Waters applied for, and in 1997 obtained, a Certificate of Lawfulness of Existing Use from the local authority. As a result, the use of the land for stock car and banger racing became lawful.

Wishing to expand the operation, in 2002 Mr Waters was granted permanent planning permission for a motocross racetrack in the fields adjacent to his existing stadium. Since 1992 he had been granted a series of temporary planning permissions for this activity, subject to certain conditions constraining the time of use of the land, and importantly a maximum noise level over any one hour period, measured at the boundary of the track.

Since 2008 Mr Coventry, a tenant of Mr Waters, and the other Respondent to the appeals had owned and operated both the stadium and the racetrack. In 2006, Ms Lawrence and Mr Shields, the Appellants, moved into a property 560 metres from the stadium, and 860 metres from the motocross racetrack.

They complained about the noise from both the stadium and racetrack, alleging that it affected their enjoyment of their property and constituted a nuisance. They first appealed to the local authority, which served noise abatement notices under a statutory procedure which deals with so-called "public" nuisances.

Not satisfied with the outcome, Ms Lawrence etc. issued a claim seeking an injunction to prevent future noise nuisance, and damages for the historic nuisance.

What is "Nuisance"?

As noted above, a nuisance may either be "public" or "private". The Coventry cases concerned private nuisance.

A private nuisance arises where a person commits an act on his own land which, although in itself lawful, becomes a nuisance when the result of his actions affect land belonging to his neighbour. A private nuisance may take many forms, ranging from damage caused to neighbouring foundations by tree roots to nuisance caused by noise or some physical disturbance, such as smoke or pollution. As the act in question may be lawful, it follows that the landowner may have planning permission to carry them out, as in the Coventry case, but those acts may nevertheless constitute a private nuisance.

The Coventry No. 1 Decisions

The High Court granted an injunction and made an award of damages. The basis for this decision was that the planning permissions and Certificate of Lawfulness had not permanently altered the local area. The Court of Appeal reversed this decision, broadly finding that it had not been established that the activities amounted to a nuisance.

The case then found its way to the Supreme Court, which reversed the decision of the Court of Appeal. In so doing, the Court made a number of observations which have helped clarify the law in this area, namely:

  1. A right to transmit sound waves over neighbouring land, which would otherwise be a nuisance, can also be the subject of an easement. An easement is a right, commonly a right of access, which one landowner has over a neighbouring landowner's property. Easements can be acquired by "prescription", in other words as a result of the act being carried out over a 20 year period without substantial interruption. Whether such a right could be acquired in respect of an activity which would otherwise constitute a nuisance had previously been doubted.
  2. Easements can be positive or negative in nature. For example, the right to receive support from a neighbouring property is a negative easement. But the right to emit noise, smoke or smells over a neighbouring property must, held the Court, be a positive easement. Importantly, therefore, the right does not "run with the land", that is does not pass automatically to any purchasers of the land.
  3. The Court affirmed that it is not a defence for the person causing the nuisance to show that the complainant "came to the nuisance", i.e. that the nuisance had already been ongoing for some time when Ms Lawrence and Mr Shields acquired their property in 2006. However, although it did not apply in this case, the Court confirmed that in certain circumstances a defence may be founded on the fact that the complainant has changed the use of or built on their land, meaning that the pre-existing activity may on its face become a nuisance.
  4. Although the main remedy for a successful claimant is an injunction preventing the defendant's nuisance, as well as an award of damages as compensation for the past nuisance, there are circumstances in which a defendant may be able to convince the Court that damages would be an adequate remedy and so an injunction is not therefore necessary. The Court held that, whilst the burden of arguing for damages in lieu of an injunction is with a defendant, the existence of planning permission authorising the activity in question will be a material factor which the Court will take into account when considering the appropriate award in nuisance cases.

Nuisance actions rarely reach higher than the Court of Appeal, and so the Court's decision is a welcome one in providing additional clarity and certainty in this area. Having found the circumstances insufficient to justify the acquisition of prescriptive rights, the Court restored the Order granted by the High Court in favour of Lawrence and Shields.

Coventry No. 2

The same case created a further issue which was not considered in the first appeal. This arose out of the fact that, through a series of convoluted arrangements, the stadium and track were let to Mr Coventry and others, who effectively controlled the operation of those facilities and who, as noted above, were found to be liable in private nuisance.

One of the main questions before the Court the second time around was whether the landlords of the track and stadium (Mr Waters and others) were also liable in nuisance. The High Court had originally dismissed the claim against the landlords. This question was revisited by the Supreme Court which held that, for a landlord to be liable for a tenant's nuisance, two questions must be answered, namely:

1. At the time of the letting, was the nuisance an inevitable, or nearly certain, consequence of the letting? In this case, the Court held that the fact that the landlords clearly knew what was to be the intended use of the track and stadium when they were let, and that such use in fact resulted in a nuisance, was not sufficient to render the landlords liable.

The key point was that the stadium and track could have been used for the various types of racing without any nuisance arising at all. In other words, the creation of a nuisance was not inevitable. Even though the lease documentation (as is standard) contained tenant obligations not to cause a nuisance, if the nuisance had been inevitable then this would not have assisted the landlords in resisting liability.

2.Did the landlords participate "actively" or "directly" in the nuisance? This issue was not considered in the High Court, and so from a factual perspective it was difficult for the Supreme Court to review it. However, on the evidence available, the Court considered that the landlords had not actively or directly participated, despite doing nothing to discourage the tenants from causing the nuisance, which importantly the Court held not to be sufficient to give rise to any liability.

As a result, the Court dismissed the nuisance claims as against the landlords. Nevertheless, the guidance given by the Supreme Court is helpful in clarifying the circumstances in which landlords may be liable for the actions of their tenants.

It would be an unusual situation for a landlord to participate with his tenant in the creation of a nuisance. More common for commercial landlords is the possibility of a nuisance being an inevitable or nearly certain consequence of the letting. One example might be the owner of premises who elects to lease them to a tenant for use as a nightclub. Much would depend upon the circumstances of the case, although in that situation it is at least conceivable that a nuisance may arise. The locality of the premises is crucial: a nightclub in a quiet town may be a nuisance even though in Soho its impact would be negligible.

Landlords are therefore well advised to consider the potential ramifications of any letting to the surrounding occupants, and if in doubt seek legal advice and the advice of other relevant professionals, including for example noise consultants.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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