Watson & Ors v Croft Promo-Sport Ltd

Planning permission cannot authorise a nuisance, although it may alter the character of a neighbourhood. Whether it has done so is a question of fact and degree, particularly where the permission followed a strategic planning decision addressing wider public interests. An administrative planning decision does not, without compensation, extinguish private nuisance rights.

Noise from a permitted activity remains actionable where the defendant cannot establish reasonable user. Coming to the nuisance is no defence. Acquiescence requires delay coupled with circumstances making enforcement unconscionable. A claimant is prima facie entitled to an injunction for continuing nuisance, but damages may be awarded instead where the circumstances justify that discretionary remedy.

The claimants, owners and occupiers of homes near the Croft Motor Circuit, brought an action in private nuisance against the circuit operator. They complained of loud, repetitive and intrusive noise from racing, testing and track-day activities.

The defendant relied on planning permissions, including a 1998 permission supported by a unilateral agreement under section 106 of the Town and Country Planning Act 1990. It contended that those instruments defined the character of the neighbourhood, and relied on coming to the nuisance, acquiescence and the availability of damages instead of an injunction.

The issues included the effect of the planning instruments, reasonable user, the equitable defences, the appropriate remedy and the assessment of damages.

1. Private nuisance and planning permission. A planning authority has no jurisdiction to authorise a nuisance, although planning decisions may change the character of a neighbourhood. The question is one of fact and degree. The 1963 permission, the limited historical use of the circuit and the 1998 permission supported by the section 106 agreement had not changed the essential rural character of the area. The 1998 decision was not a strategic planning decision determining the character of the neighbourhood in the public interest. It represented a compromise giving the operator more controls than previously existed. Planning permission therefore did not defeat the claim.
2. Unreasonable user. Applying the principle of reasonable user, the intensity, frequency and duration of the noise meant that the defendant could not establish the defence. The N1–N4 activities constituted a nuisance beyond a threshold of 40 such days per year.
3. Coming to the nuisance. The defence was unavailable. The rule in Sturges v Bridgman and Miller v Jackson remained binding. The individual circumstances did not alter that rule.
4. Acquiescence. Acquiescence requires delay together with circumstances making it unconscionable to enforce the right. Detriment will usually support that conclusion, but, without detriment, another unconscionable factor is required. The claimants’ complaints and conduct did not satisfy the test.
5. Remedy. The court applied the principles in Shelfer v City of London Electric Lighting Co. A claimant is prima facie entitled to an injunction, but the checklist is a working rule rather than an exhaustive code. Delay and the claimants’ willingness to accept compensation for additional N1–N4 days justified refusing an injunction. Damages were an adequate remedy.
6. Damages. The court assessed capital diminution by reference to the nuisance threshold of 40 N1–N4 days and awarded £109,600 to Mr and Mrs Watson and £40,000 to Mrs Wilson, including damages for past loss of amenity.