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Supreme Court reassesses remedies in nuisance cases

View profile for Justin Emerson
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The move which will be greeted with relief by developers, who have long been nervous about the potential for injunctions to be granted against them preventing the progress of their project or requiring them to demolish their work. 

This particular case (Coventry v Lawrence) related to a nuisance claim, however the judgment may be applicable to other property rights, for example, right to light.

The claimant in this case complained about the noise created by a stock car racing stadium, which had planning permission.  In deciding the case, the judges had to consider several aspects of the tort of private nuisance:

Prescription (long use)

The court acknowledged that a right to commit a nuisance may be acquired by prescription although in this case, whilst the activity had been ongoing for a period of over 20 years, the first complaint about the noise had only been made 16 years ago.  On the facts of this case therefore, the right had not accrued.

Coming to a nuisance

Where a claimant uses their property for the same purpose as their predecessors before the nuisance started, the defendant cannot rely on the defence that the claimant 'came to the nuisance'.

The character of the locality

In order to define the character of the area, the court should begin by considering the defendant's activities but only to the extent that they do not cause a nuisance to the claimant.  Therefore, if the activities cannot be carried out without creating a nuisance, such activities will be entirely discounted in the assessment of the character of the locality.  Further, any activities in breach of planning permission will not be considered. 

Relevance of planning permission

The court decided that the issue of common law nuisance is the ambit of the court and not the relevant planning authority, therefore the grant of planning permission does not legalise the relevant activity.  Planning permission would however be relevant where it stipulates conditions regarding limits of frequency and intensity of noise.

Remedies: Injunctions -v- Damages

Once a nuisance has been established, the focus turns to remedies.  Traditionally, the courts have been bound by a four part test set out in a case which dates back to 1895 (Shelfer v City of London Electric Lighting Co).  They were obliged not to award damages unless all four parts of the test were satisfied, which ultimately has led to injunctions being awarded in the large majority of cases.

The Supreme Court criticised the courts' slavish adherence to the test which has caused consternation in the building community.  This ruling has created a more flexible approach and a move away from only granting damages in very exceptional cases.  The judge reiterated that even where all parts of the test are not satisfied, courts should consider damages as a suitable remedy in appropriate circumstances.  

The above is not legal advice; it is intended to provide information of general interest about current legal issues.

If you require further information please contact Justin Emerson or Michael Callaghan on 01245 228113 or email emersonj@gepp.co.uk