Lawrence v Fen Tigers Ltd

This appeal concerns the law of private nuisance by noise and the related questions of (i) whether a prescriptive right to create noise can be acquired, (ii) the relevance of the claimant having "come to the nuisance", (iii) the extent to which the defendant's own activities may be taken into account in assessing the character of the locality, (iv) the effect of planning permission on liability and the character of the locality, and (v) the approach to remedies, in particular when an injunction should be refused in favour of damages.

The court held (i) a right to transmit sound waves which would otherwise be a nuisance can in principle be an easement and can be acquired by prescription if the claimant can show at least 20 years' use "nec vi, nec clam, nec precario" of that which amounted to a nuisance; (ii) it is no defence that the claimant came to the nuisance where the claimant uses the property for the same purpose as predecessors, although the law may be different where the claimant has changed the use of the land leading to the nuisance; (iii) the defendant's activities can be taken into account in assessing the character of the locality only to the extent that those activities do not themselves constitute an actionable nuisance (unlawful uses or nuisance must be notionally stripped out); (iv) planning permission is normally of limited weight in determining liability in nuisance and should not automatically prevent a successful nuisance claim, although terms of permissions and planning evidence may be relevant as evidence or a benchmark; and (v) the court's discretion to award damages instead of an injunction should be flexible: the traditional Shelfer criteria are useful as a working rule but must not unduly fetter the court's discretion, and public interest and planning considerations can be relevant to remedy though they do not of themselves absolve liability.

The claimants (residents of a bungalow called Fenland) sued operators and owners of a nearby stadium and motocross track for private nuisance by noise. The stadium (speedway, stock car and banger racing) and the track (motocross) had been used for many years and had a complex planning history including temporary and later personal permanent permissions and a Certificate of Lawfulness in respect of some activities. Noise abatement notices were served and attenuation works carried out. The trial judge found nuisance by reference to noise levels and granted an injunction with specific decibel limits and damages for past nuisance; the Court of Appeal reversed, holding that the defendant’s long-established and permitted activities formed part of the character of the locality and so negated nuisance.

The Supreme Court allowed the appeal and restored the trial judge’s order. The court addressed five main issues:

• Prescriptive rights: the court concluded that a right to emit noise which would otherwise be a nuisance can be an easement and can, in principle, be acquired by prescription if the usual requirements (notably 20 years' use as of right) are satisfied, although practical evidential problems arise in proving the degree and continuity of nuisance over the relevant period.
• Coming to the nuisance: the court confirmed that it is not a defence that the claimant came to the nuisance where the claimant continues the same use of the land as predecessors; the position is more complex if the claimant builds or changes use and the defendant’s pre-existing activity only becomes a nuisance by reason of that change.
• Character of the locality: the defendant’s own activities may be taken into account when assessing the locality but only to the extent they do not themselves constitute an actionable nuisance; unlawful activities or those that could not be carried on without creating a nuisance must be stripped out.
• Planning permission: the grant of planning permission is normally of limited weight in determining liability in nuisance. It does not, without more, authorize nuisance nor should a defendant rely simply on a permission to defeat a nuisance claim, although detailed planning conditions and evidence may provide a useful benchmark for acceptable noise levels and may be relevant to remedy.
• Remedies: the court emphasised that the discretion to award damages in lieu of an injunction is fact-sensitive and should not be rigidly fettered by mechanical application of the Shelfer tests; public interest, third-party consequences and planning considerations are relevant to the remedy, though they do not negate liability.

On the facts, the Supreme Court rejected the Court of Appeal's approach that implemented planning permissions were determinative; it held that the trial judge’s findings supported his conclusion that the defendants’ activities had amounted to a nuisance and that the injunction he framed should be restored. The Court of Appeal's conclusion on the relevance of the permissions was, in the Supreme Court’s view, unsupportable, though the trial judge had erred in some of his reasoning on the permissions without that affecting the outcome. The respondents were permitted to apply later to discharge the injunction and argue for damages in lieu.

This was an appeal from the Court of Appeal. The Supreme Court allowed the appeal and restored the order of the trial judge. The court held that: (i) a prescriptive easement to emit noise is in principle possible; (ii) coming to the nuisance is not a defence where the claimant continues the same residential use as predecessors; (iii) when assessing the character of the locality the court may take the defendant’s activities into account only insofar as they do not themselves constitute an actionable nuisance; (iv) planning permission is generally of limited relevance to liability in private nuisance though it may be evidentially relevant or assist in framing remedies; and (v) the award of damages instead of an injunction is a flexible discretionary exercise and the Shelfer criteria should not be applied mechanically.

Trial: HHJ Seymour QC, High Court (Queen's Bench) [2011] EWHC 360 (QB); Court of Appeal: reversed [2012] 1 WLR 2127 (on appeal from [2011] EWHC 360 (QB)); Appeal to Supreme Court allowed [2014] UKSC 13.