Watson & Ors v Croft Promo-Sport Ltd

Planning permission does not of itself authorise a nuisance or alter a third party’s private-law rights. Its implementation may change the nature and character of a locality and shift the standard of reasonable user, but that is a question of fact and degree. Intensification of a use, particularly through tortious activity, cannot itself change the essential character of the area. Reasonable user requires a balance of legitimate interests, assessed by the intensity, frequency and duration of the interference. Damages may replace an injunction only in very exceptional circumstances. A general balance-of-convenience approach is insufficient. Public benefit, delay and willingness to accept compensation for limited interference do not justify withholding an injunction where the injury is substantial and compliance would not oppress the defendant.

Residents living near the Croft Motor Circuit sued Croft Promo-Sport Ltd for noise nuisance, seeking an injunction and damages. Simon J held that the planning permissions and s.106 undertaking had not altered the essentially rural character of the locality, that use exceeding 40 N1–N4 days annually was unreasonable and actionable, and that damages should be awarded instead of an injunction. The defendants appealed on liability. The claimants appealed against the refusal of injunctive relief. The central issues concerned the effect of planning controls on private nuisance, the reasonable-user threshold, and the circumstances in which damages may replace an injunction.

Disposition. The Chancellor delivered the leading judgment, with Lord Justice Richards and Lady Justice Hallett agreeing. The defendants’ appeal was dismissed. The claimants’ appeal was allowed. The order was varied to grant an injunction restricting the circuit’s use to 40 N1–N4 days per year, with the parties invited to consider consequential adjustments to the damages award.

1. Planning permission and nuisance. The grant of planning permission does not itself affect third parties’ private-law rights or authorise a nuisance. Its implementation may alter the nature and character of a locality and shift the standard of reasonable user. Whether that has occurred is a question of fact and degree. The court rejected any intermediate category in which planning permission alone affects private rights, unless Parliament has specifically authorised that result. The principles were supported by Allen v Gulf Oil Refinery [1980] QB 156, Gillingham Council v Medway Dock Co. [1993] QB 343, Wheeler v JJ Saunders Ltd [1996] Ch. 19 and Hunter v Canary Wharf Ltd [1997] AC 655.
2. Locality and reasonable user. The 1963 permission and the 1998 permission, which controlled the broad use permitted in 1963, were not strategic permissions of the relevant kind. The essentially rural character of the locality had not changed. The common-law standard required a fact-sensitive balance of legitimate interests, taking account of noise intensity, frequency and duration. The 40-day threshold was within the permissible range identified by the evidence, and its selection was an evaluative judgment for the trial judge. There was no basis for appellate interference.
3. Injunction or damages. Under Shelfer v City of London Electric Lighting Co. [1895] 1 Ch. 287, a claimant with an invaded legal right is prima facie entitled to an injunction, and damages in lieu should be ordered only in very exceptional circumstances. Jaggard v Sawyer [1995] 1 WLR 262 clarified that the inquiry concerns oppression and is not a general balance-of-convenience exercise. The principles summarised in Regan v Paul Properties Ltd [2007] Ch. 135 required consideration of the seriousness of the injury, the adequacy of monetary compensation and whether an injunction would be oppressive.
4. The judge’s reliance on delay and the claimants’ willingness to accept compensation up to a limited level was insufficient. Acceptance of compensation for inconvenience up to 40 days did not show that money adequately compensated interference beyond that level. Public benefit may be relevant in a marginal case involving minimal damage, but it cannot alone displace the exceptional-circumstances or oppression requirement. Here the injury was substantial, the injunction would not oppress the defendants, and the relevant expenditure was directed principally to core activities rather than the nuisance-causing activities.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 15, the defendants’ appeal was dismissed and the claimants’ appeal was allowed. The order was varied to include an injunction limiting use of the circuit to 40 N1–N4 days annually.
2. High Court, Queen’s Bench Division: Simon J held that the use constituted an actionable nuisance, awarded damages, but refused an injunction.