‘Right, for the wrong reasons’: The Supreme Court considers private nuisance

In late February 2014, the Supreme Court considered the tort of private nuisance for the first time in its five-year history 

In fact, some key aspects of private nuisance had never been considered by the Supreme Court’s predecessor, the (Appellate Committee of the) House of Lords either. So the judgment in Coventry v Lawrence [2014] UKSC 13 is likely to have staying power. 

This article is primarily based on Lord Neuberger’s leading judgment, with which the other justices broadly agreed. 

What is the tort of private nuisance?

Private nuisance is a tort committed against land. A person with a proprietary interest in land can bring an action in private nuisance against a person who disturbs their enjoyment of the land. A classic example of this is where emissions from a factory cause damage to a neighbouring property (see Tipping v St Helens Smelting Co. (1865) L.R. 1 Ch.App. 66).

What were the facts of the case?

The Respondents were the owners and operators of a speedway stadium in Suffolk. The stadium had been built on agricultural land in the mid-1970s. From 1984 onwards it had been used for stock car and banger racing as well as speedway. In 1992 a motocross track was added to the rear of the stadium.

Across the fields, around 560 metres from the stadium and 860 metres from the track, stood a detached bungalow. The Appellants bought the bungalow in 2006 and almost immediately began to complain about the noise coming from the Respondent’s land.

By 2010, the dispute had escalated to the High Court. In a 110-page judgment, Seymour J found in favour of the Appellants. On appeal, the Court of Appeal reversed Seymour J’s judgment.The Appellants appealed to the Supreme Court.

What were the issues in the appeal?

One of the reasons why this case is likely to have great staying power is because so many aspects of the tort of private nuisance were considered as part of the appeal. These will be discussed in turn.

UK Supreme Court
UK Supreme Court

Prescription

It is possible for an occupier of land to acquire rights they have not expressly been granted via a process called prescription. A right can be acquired by prescription where the person claiming the right can show that they have already been enjoying it in a practical, albeit not a legal sense, for 20 years without interruption or challenge. Prescription is a complete defence to a claim of private nuisance. 

In the present case, the Respondents argued that they had acquired a prescriptive right to emit noise over the Appellant’s land, as they had been emitting noise over the land since the 1970s. This presented a number of problems, not least whether it was even possible to acquire a prescriptive right to create noise. 

By classifying excessive noise as a type of pollution, Lord Neuberger was able to draw an analogy with Cairns LJ’s judgment in Baxendale v McMurray (1867) 2 Ch App 790. In that case, Cairns LJ had held that it was possible for an owner of land to acquire, by prescription, the right to polluting a watercourse. Just as a landowner might acquire a right to emit polluting material into a neighbour’s land, so he might acquire a right to emit polluting levels of noise into a neighbour’s land, Lord Neuberger reasoned. 

While the Supreme Court accepted that in principle it would be possible to acquire a prescriptive right to emit noise over another person’s land, they found that it was not made out in the Respondent’s case: the Appellants and the previous owners of the bungalow had made a series of complaints about the noise and therefore the Respondent could not say that he had emitted noise for 20 years without interruption or challenge.

Coming to the nuisance

The Appellants purchased the bungalow in 2006. But the Respondents had been operating their business in one form or another since the mid-1970s. Why should they have to be quiet on account of these relative newcomers? It had been assumed by the Court of Appeal in cases like Sturges v Bridgman (1879) 11 Ch D 852 and more recently Miller v Jackson [1977] QB 966 that it was no defence to say that the claimant came to the nuisance – but this had never been confirmed by a final appellate court.

Counsel for the Respondent argued that the Court of Appeal had been mistaken in both Sturges v Bridgman and Miller v Jackson.  Counsel cited Leeds v Shakerley (1600) Cro Eliz 751 – a case about the diversion of a watercourse – in support of this proposition.

The Supreme Court was not persuaded. Lord Neuberger described Leeds v Shakerley as a ‘dubious exception’ and declined to overturn the rule, accepted for over 180 years, that it is no defence to say that the claimant came to the nuisance.

The character of the locality – and the defendant’s effect on it

When assessing whether certain behaviour amounts to a nuisance, the court must have regard to the character of the locality in which that behaviour occurs. As Thesiger LJ famously put it in Sturges v Bridgman: What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.” 

This is fairly easy to apply to cases where the defendant’s activities only have a minor impact on the locality as a whole. For example, one more clothes shop on London’s Oxford Street would likely only have a minor impact on the street as a whole, no matter how much of an irritation it might be to an immediate neighbour.But what about the present case, where the area had been farmland before the arrival of the Respondent’s stadium – and the Respondent’s activities had become a defining (and also deafening) feature of the area?

Lord Neuberger said that the starting point was to consider what the nature of the locality would be if the defendant carried on his business in a way that did not cause a nuisance. Then, the alleged nuisance could be measured against the character of all the lawful behaviour taking place in the locality.

This presupposes that it is possible for the defendant to carry on his business in a way that does not cause a nuisance. Lord Neuberger acknowledged there was some circularity in this process, but concluded it was the least worst option when compared to other ways of tackling the problem: if a defendant’s lawful activities were ignored when considering the character of a locality this could produce harsh judgments against a defendant like the Respondent whose activities defined an area.

Conversely, if all a defendant’s activities including those that constituted the alleged nuisance were taken into account, the result would be that it would be more or less impossible to find such a defendant liable in private nuisance.

The effect of planning permission

The Respondent had planning permission to operate the stadium and the track, albeit with conditions. How could the Respondent’s behaviour be lawful (sanctioned by planning permission) and yet unlawful (a nuisance) at the same time? 

At first instance, the trial judge entirely ignored the issue of planning permission when considering whether the Respondent’s activities constituted a nuisance. Lord Neuberger described the reasons the judge gave for doing this as “largely unconvincing” and “baffling.”

When the case reached the Court of Appeal, Jackson LJ quoted Buckley J in Gillingham BC v Medway (Chatham) Dock Co Ltd [1993] QB 343 who said “planning permission is not a licence to commit a nuisance” but that “a planning authority can… through its decisions, alter the character of a neighbourhood.” Having considered this and the other authorities on planning permission and private nuisance, Jackson LJ concluded that planning permission could be a relevant factor when deciding if a large-scale activity was a nuisance, but would be less relevant to small, non-strategic decisions. 

Lord Neuberger
Lord Neuberger

Lord Neuberger said that it was wrong to try to draw a distinction between large and small or strategic and non-strategic planning decisions.  The ‘mere fact’ that a defendant had planning permission to carry out the activity that constituted the alleged nuisance should not assist that defendant. 

While planning decisions may be of some assistance in deciding a nuisance claim, Lord Neuberger said that the courts should remember that the role of a planning authority is to have regard to the wider public interest when making a planning decision. If an individual’s private rights were infringed as a result of a planning decision, it should be open to them to seek a remedy. These common law rights should not be shut down because planning permission has been granted. 

Despite the lower courts’ errors of reasoning, Lord Neuberger considered that they had reached the correct conclusion on this point: the Respondents could not argue that they had not committed a nuisance simply because they had been granted planning permission.

Damages v Injunctions

In the High Court, Seymour J awarded the Appellants damages to compensate them for nuisance already suffered, plus an injunction to prevent the Respondents from creating any further nuisance. 

On appeal, the Respondents argued that if they were guilty of creating a nuisance then the judge should have awarded the Appellants damages for future loss instead of an injunction. 

In most areas of law, damages are the courts’ preferred remedy. In nuisance, the courts tend towards the injunction. An often-cited authority in support of this proposition is Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, where Cairns LJ described the courts’ displeasure in situations where a person found to have committed an unlawful act should be allowed to carry on acting unlawfully and essentially ‘get away with it’ provided he or she could afford to pay damages. 

This was one area of the case where the Supreme Court justices differed in their reasoning, although they all reached the same broad conclusion: the courts should not fetter their discretion to award damages instead of an injunction, and they should have regard to the public benefit that might exist in the defendant’s continuing his activities – despite those activities being a nuisance to the defendant’s neighbours.

So who won?

The Appellants won – the Supreme Court reversed the decision of the Court of Appeal and reinstated the judgment of the High Court. To paraphrase Lord Neuberger, the Supreme Court held that the original trial judge had been right – but for the wrong reasons.

Amy Woolfson