The Supreme Court decision in case of Coventry v Lawrence [2014] UKSC 13 is likely to have ramifications in property disputes beyond the immediate subject matter of the case.
Facts of the case
The case involved proceedings brought against the owners of a motor sports stadium and track claiming that noise generated by the stadium and track amounted to a private nuisance. Since the 1970s, the track at Mildenhall Stadium had been used variously for speedway racing, stock-car rallies, banger racing and greyhound racing. From 1993, the track had been used for motocross. Over time, the activities had obtained the benefit of various planning permissions or certificates of lawful use allowing for motor racing, subject to conditions regarding times of the year, days of the week, and hours of the day when the track could be open for use or events. The appellants had acquired residential property close to the track in 2006, unaware, it seems, of the various forms of motor sports taking place at the track.
The judge at first instance held that the noise generated by the motor sports constituted a nuisance to the claimants and awarded damages in the sum of £20,850, together with an injunction to limit the level of noise emanating from the track, and restricting use to certain times and days. The defendants appealed, not least because the terms of the injunction would result in the closure of their business operations. The Court of Appeal overturned the High Court decision in ruling that, while a planning authority could not, through the grant of a planning permission, validate activity to authorise the commission of a nuisance, noise from the motor sports had nevertheless become an established feature of the locality and therefore any nuisance had to be assessed in the light of that. However, the Supreme Court has now turned matters around again in holding that the defendants were liable for the nuisance caused by the track and stadium. It restored the injunction awarded by the High Court, but with power for the defendants to ask the court to award damages in lieu by application in the High Court’s original order.
Arguments in defence
In defending the action in this case, the defendants pursued several lines of defence:
(1) That, through long user, the defendants had established a prescriptive right to commit what would otherwise be a nuisance by means of noise.
The Supreme Court accepted that a landowner could, by long user, acquire a prescriptive right to commit what would otherwise be a nuisance by means of noise; (a right to transmit sound waves over neighbouring land). However, on the evidence available, 20 years long user was not established since it was only within that period that sound appeared to give rise to a nuisance. It is interesting to note, however, that Lord Neuberger establishes the existence of a new easement: “I am of the view that the right to carry on an activity which results in noise, or the right to emit a noise, which would otherwise cause an actionable nuisance, is capable of being an easement.”
(2) That the claimants had acquired their property subject to an existing state of affairs so that they had effectively ” come to the nuisance”.
The Supreme Court was clear that it was no defence to an action in nuisance to say that the claimant came to the nuisance, unless the activity only became a nuisance because of the way in which the claimant had altered its property after acquisition.
(3) That the use of the race track had necessarily changed the character of the locality over time, so that any alleged nuisance had to be assessed by reference to that character.
The Supreme Court accepted that the defendants could rely upon their own activities in establishing the character of the locality, but only to the extent that those activities were not a nuisance. Hence, as use of the race track amounted to a nuisance, its use could not be relied upon to establish that the character of the area had changed.
(4) That the grant of planning permission for the use complained of was relevant to whether a nuisance was being carried out, and also in considering the character of the locality in general.
The Supreme Court stated that, whether or not an activity had the benefit of planning permission, if the activity resulted in a nuisance, the activity was to be disregarded in assessing any change in the character of the locality. The defendants were held liable in nuisance.
What did the Supreme Court say about the appropriateness of remedies?
The Supreme Court confirmed that a nuisance was being committed. However, what remedy was to be awarded? Ordinarily, one might expect the court to award an injunction to prevent further commission of the nuisance. However, the court has power to award damages in lieu of an injunction. Where considering the possibility of awarding an injunction to restrain an infringement of a property right, the courts have applied the principles laid down in Shelfer v City of London Electric Lighting Co. [1895] 1 Ch 287. While the starting presumption has been that, where property rights are interfered with, the interference should be restrained, the “working rule” adopted by the courts was that, if the injury to the claimant’s legal rights is small, and is one that is capable of being estimated in money, and that can adequately be compensated by a small money payment, and the case is one in which it would be oppressive to the defendant to grant an injunction, then damages in substitution would be given. This approach, says the Supreme Court, is out of date. A wider discretionary approach is to be adopted, taking into account, amongst other things, the public impact of awarding an injunction (e.g. that people might lose jobs through business closures; that the public might be deprived of certain services or facilities). Lord Neuberger said that:
“…it is right to emphasise that, when a judge is called on to decide whether to award damages in lieu of an injunction, I do not think that there should be any inclination either way (subject to the legal burden [of proof]): the outcome should depend on all the evidence and arguments.”
Lord Neuberger
While the burden of proof would remain with the defendant to show why an injunction should not be awarded, the courts were instructed to be more flexible and to apply a broad discretion in considering whether to award damages in lieu. An overly rigid application of the Shelfer principles resulted in damages being awarded only in very exceptional circumstances. This, said Lord Neuberger, was “simply wrong in principle”. While the starting point would remain that an injunction should be granted, and if the Shelfer principles applied and circumstances did not point in a different direction, damages would normally be awarded in lieu, a failure to satisfy those principles did not mean that an injunction would be granted. A wider discretion was to be applied. Hence, the existence of planning permission authorising the use complained of could be a factor in favour of refusing an injunction and awarding damages instead.