Coventry (t/a RDC Promotions) & Anor v Lawrence & Ors (Rev 1)

Planning permission cannot authorise a nuisance. However, planning permission followed by implementation may change the character of a locality. Whether it has done so is a question of fact. If the locality has changed, nuisance must be assessed against that changed character. Activities which would previously have been offensive may then cease to be actionable nuisances. The character of the locality is assessed by considering the activities actually established there, not merely the background ambient noise with those activities excluded. A private nuisance claim cannot be remitted for a new trial on a materially different case where the original decision rested on an erroneous legal premise and the necessary factual findings were not made.

Residents of Fenland brought a private nuisance claim against operators and owners associated with a speedway stadium and motocross track. The trial judge held that noise from the motor sports was a nuisance, awarded damages and granted an injunction, while dismissing claims for aggravated and exemplary damages.

The operators appealed, arguing that planning permissions and a certificate of lawful use had changed the character of the locality. They also raised alternative arguments concerning moving to the nuisance and prescription. The claimants cross-appealed against findings limiting the liability of two landlords. The central issue was whether nuisance had been assessed against the legally relevant character of the locality.

1. Appeal allowed and claim dismissed. The finding of private nuisance against the operators was based on an error of law. The claimants’ cross-appeal against the fourth and sixth defendants was dismissed. The renewed application for permission to appeal on the second ground was refused, and the prescription issue did not arise.
2. Planning permission cannot authorise the commission of a nuisance. Nevertheless, planning permission followed by implementation may change the character of a locality. Whether it has done so is a question of fact. If the character has changed, the nuisance issue must be determined against that changed character, with the possible consequence that activities previously regarded as offensive cease to constitute a nuisance.
3. The trial judge was wrong to exclude motor-sport noise from the characteristics of the locality. By the time the claimants purchased their house, speedway, stock-car, banger-racing and motocross activities had taken place regularly for many years. They were an established, indeed dominant, feature of the locality. The comparison between racing noise and ambient noise when no motor sport was occurring therefore provided an erroneous basis for finding nuisance.
4. The restrictions on days and hours in the planning permissions and certificate did not prevent the locality from changing. The personal nature of the permissions was irrelevant. Although breaches of planning conditions might have supported a nuisance claim, the evidence and findings did not establish such a case.
5. Remission was refused. The claimants had pleaded and presented their case on the premise that the area remained a quiet rural locality. They had not advanced a coherent alternative case based on nuisance despite a changed locality, and remission would amount to a new trial on a different basis.
6. Lewison LJ added, with Mummery LJ agreeing, that an easement may in principle be exercisable at specified times or on limited days. The court did not finally determine whether an easement to transmit sound waves could be acquired by prescription, but rejected the absolute statement that such an easement could never be recognised.

• Court of Appeal (Civil Division): [2012] EWCA Civ 26 — allowed the operators’ appeal on the planning-permission ground, dismissed the claimants’ cross-appeal, refused remission and dismissed the nuisance claim.
• High Court, Queen’s Bench Division: judgment of His Honour Judge Seymour QC in claim HQ09X04659 dated 4 March 2011 — held that the noise constituted a private nuisance, awarded damages and granted an injunction.